Protection of Environment: Revised As of July 1, 2000

40
Part 1 to 49
Revised as of July 1, 2000
Protection of
Environment
Containing a Codification of documents

of general applicability and future effect
As of July 1, 2000
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
As a Special Edition of the Federal Register
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U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2000
For sale by U.S. Government Printing Office

Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402–9328
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Table of Contents
Page
Explanation ................................................................................................ v
Title 40:
Chapter I—Environmental Protection Agency ................................ 3
Finding Aids:
Table of CFR Titles and Chapters ....................................................... 651
Alphabetical List of Agencies Appearing in the CFR ......................... 669
List of CFR Sections Affected ............................................................. 679
iii
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Cite this Code: CFR
To cite the regulations in

this volume use title,
part and section num-
ber. Thus, 40 CFR 1.1
refers to title 40, part 1,
section 1.
iv
Explanation
The Code of Federal Regulations is a codification of the general and permanent
rules published in the Federal Register by the Executive departments and agen-
cies of the Federal Government. The Code is divided into 50 titles which represent
broad areas subject to Federal regulation. Each title is divided into chapters
which usually bear the name of the issuing agency. Each chapter is further sub-
divided into parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year and issued
on a quarterly basis approximately as follows:
Title 1 through Title 16..............................................................as of January 1
Title 17 through Title 27 .................................................................as of April 1
Title 28 through Title 41 ..................................................................as of July 1
Title 42 through Title 50 .............................................................as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially noticed (44
U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text
of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual issues
of the Federal Register. These two publications must be used together to deter-
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To determine whether a Code volume has been amended since its revision date
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Many agencies have begun publishing numerous OMB control numbers as amend-
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close as possible to the applicable recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on the cover
of each volume are not carried. Code users may find the text of provisions in
effect on a given date in the past by using the appropriate numerical list of
sections affected. For the period before January 1, 1986, consult either the List
of CFR Sections Affected, 1949–1963, 1964–1972, or 1973–1985, published in seven sep-
arate volumes. For the period beginning January 1, 1986, a ‘‘List of CFR Sections
Affected’’ is published at the end of each CFR volume.
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A subject index to the Code of Federal Regulations is contained in a separate
volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS.
This volume contains the Parallel Table of Statutory Authorities and Agency
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The Federal Register Index is issued monthly in cumulative form. This index
is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Reg-
ister.
A List of CFR Sections Affected (LSA) is published monthly, keyed to the
revision dates of the 50 CFR titles.
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There are no restrictions on the republication of material appearing in the
Code of Federal Regulations.
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vi
The Office of the Federal Register also offers a free service on the National
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to GPO Access.
RAYMOND A. MOSLEY,
Director,
Office of the Federal Register.
July 1, 2000.
vii
THIS TITLE
Title 40—PROTECTION OF ENVIRONMENT is composed of twenty–four volumes.

The parts in these volumes are arranged in the following order: parts 1–49, parts
50–51, part 52 (52.01–52.1018), part 52 (52.1019–End), parts 53–59, part 60, parts 61–
62, part 63 (63.1–63.1199), part 63 (63.1200–End), parts 64–71, parts 72–80, parts 81–
85, part 86, parts 87–135, parts 136–149, parts 150–189, parts 190–259, parts 260–265,
parts 266–299, parts 300–399, parts 400–424, parts 425–699, parts 700–789, and part
790 to End. The contents of these volumes represent all current regulations codi-
fied under this title of the CFR as of July 1, 2000.
Chapter I—Environmental Protection Agency appears in all twenty–four vol-

umes. A Pesticide Tolerance Commodity/Chemical Index and Crop Grouping Com-
modities Index appear in parts 150–189. A Toxic Substances Chemical—CAS Num-
ber Index appears in parts 700–789 and part 790 to End. Redesignation Tables ap-
pear in the volumes containing parts 50–51, parts 150–189, and parts 700–789. Regu-
lations issued by the Council on Environmental Quality appear in the volume
containing part 790 to End. The OMB control numbers for title 40 appear in § 9.1
of this chapter.
For this volume, Jonn V. Lilyea was Chief Editor. The Code of Federal Regula-
tions publication program is under the direction of Frances D. McDonald, assisted
by Alomha S. Morris.
ix
x
Title 40—Protection of
Environment
(This book contains parts 1 to 49)
Part
CHAPTER I—Environmental Protection Agency ..................... 1
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CHAPTER I—ENVIRONMENTAL PROTECTION
AGENCY
SUBCHAPTER A—GENERAL
Part Page
1 Statement of organization and general information 5
2 Public information .................................................. 23
4 Uniform relocation assistance and real property
acquisition for Federal and federally assisted
programs .............................................................. 72
6 Procedures for implementing the requirements of
the Council on Environmental Quality on the
National Environmental Policy Act .................... 72
7 Nondiscrimination in programs receiving Federal
assistance from the Environmental Protection
Agency ................................................................. 112
8 Environmental impact assessment of nongovern-
mental activities in Antarctica ........................... 124
9 OMB approvals under the Paperwork Reduction
Act ....................................................................... 131
10 Administrative claims under Federal Tort Claims
Act ....................................................................... 152
11 Security classification regulations pursuant to Ex-
ecutive Order 11652 ............................................... 155
12 Nondiscrimination on the basis of handicap in pro-
grams or activities conducted by the Environ-
mental Protection Agency ................................... 159
13 Claims collection standards .................................... 165
14 Employee personal property claims ........................ 182
16 Implementation of Privacy Act of 1974 ................... 185
17 Implementation of the Equal Access to Justice Act
in EPA administrative proceedings ..................... 197
19 Adjustment of civil monetary penalties for infla-
tion ....................................................................... 203
20 Certification of facilities ........................................ 205
21 Small business ......................................................... 213
22 Consolidated rules of practice governing the ad-
ministrative assessment of civil penalties and
the revocation termination or suspension of per-
mits ...................................................................... 222
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40 CFR Ch. I (7–1–00 Edition)
23 Judicial review under EPA—Administered statutes 247

24 Rules governing issuance of and administrative
hearings on interim status corrective action or-
ders ....................................................................... 249
25 Public participation in programs under the Re-
source Conservation and Recovery Act, the Safe
Drinking Water Act, and the Clean Water Act .... 257
26 Protection of human subjects ................................. 266
27 Program fraud civil remedies .................................. 277
29 Intergovernmental review of Environmental Pro-
tection Agency programs and activities .............. 294
SUBCHAPTER B—GRANTS AND OTHER FEDERAL
ASSISTANCE
30 Uniform administrative requirements for grants
and agreements with institutions of higher edu-
cation, hospitals, and other non-profit organiza-
tions ..................................................................... 298
31 Uniform administrative requirements for grants
and cooperative agreements to State and local
governments ......................................................... 325
32 Governmentwide debarment and suspension (non-
procurement) and governmentwide requirements
for drug-free workplace (grants); Clean Air Act
and Clean Water Act ineligibility of facilities in
performance of Federal contracts, grants and
loans ..................................................................... 360
34 New restrictions on lobbying .................................. 381
35 State and local assistance ....................................... 393
40 Research and demonstration grants ........................ 623
45 Training assistance ................................................. 632
46 Fellowships ............................................................. 635
47 National Environmental Education Act grants ...... 638
49 Tribal Clean Air Act authority ............................... 640
SUBCHAPTER A—GENERAL
PART 1—STATEMENT OF ORGANI- 1970 transferred to EPA a variety of re-

ZATION AND GENERAL INFOR- search, monitoring, standard setting,
and enforcement activities related to
MATION pollution abatement and control to
Subpart A—Introduction provide for the treatment of the envi-
ronment as a single interrelated sys-
Sec. tem. Complementary to these activi-
1.1 Creation and authority. ties are the Agency’s coordination and
1.3 Purpose and functions. support of research and antipollution
1.5 Organization and general information. activities carried out by State and
1.7 Location of principal offices.
local governments, private and public
Subpart B—Headquarters groups, individuals, and educational in-
stitutions. EPA reinforces efforts
1.21 General. among other Federal agencies with re-
1.23 Office of the Administrator. spect to the impact of their operations
1.25 Staff Offices.
1.27 Offices of the Associate Administra-
on the environment.
tors.
1.29 Office of Inspector General. § 1.5 Organization and general infor-
1.31 Office of General Counsel. mation.
1.33 Office of Administration and Resources (a) The U.S. Environmental Protec-
Management. tion Agency’s basic organization con-
1.35 Office of Enforcement and Compliance
sists of Headquarters and 10 Regional
Monitoring.
1.37 Office of External Affairs. Offices. EPA Headquarters in Wash-
1.39 Office of Policy, Planning and Evalua- ington, DC maintains overall planning,
tion. coordination and control of EPA pro-
1.41 Office of Air and Radiation. grams. Regional Administrators head
1.43 Office of Prevention, Pesticides and the Regional Offices and are respon-
Toxic Substances. sible directly to the Administrator for
1.45 Office of Research and Development. the execution of the Agency’s programs
1.47 Office of Solid Waste and Emergency
Response. within the boundaries of their Regions.
1.49 Office of Water. (b) EPA’s Directives System contains
definitive statements of EPA’s organi-
Subpart C—Field Installations zation, policies, procedures, assign-
ments of responsibility, and delega-
1.61 Regional Offices.
tions of authority. Copies are available
AUTHORITY: 5 U.S.C. 552. for public inspection and copying at
SOURCE: 50 FR 26721, June 28, 1985, unless the Management and Organization Di-
otherwise noted. vision, 401 M Street SW., Washington,
DC 20460. Information can be obtained
Subpart A—Introduction from the Office of Public Affairs at all
Regional Offices.
§ 1.1 Creation and authority. (c) EPA conducts procurement pursu-
Reorganization Plan 3 of 1970, estab- ant to the Federal Property and Ad-
lished the U.S. Environmental Protec- ministrative Services Act, the Federal
tion Agency (EPA) in the Executive Procurement Regulations, and imple-
branch as an independent Agency, ef- menting EPA regulations.
fective December 2, 1970.
§ 1.7 Location of principal offices.
§ 1.3 Purpose and functions. (a) The EPA Headquarters is in
The U.S. Environmental Protection Washington, DC. The mailing address
Agency permits coordinated and effec- is 401 M Street SW., Washington, DC
tive governmental action to assure the 20460.
protection of the environment by abat- (b) The addresss of (and States served
ing and controlling pollution on a sys- by) the EPA Regional Offices (see § 1.61)
tematic basis. Reorganization Plan 3 of are:
§ 1.21 40 CFR Ch. I (7–1–00 Edition)
(1) Region I, U.S. Environmental Pro- (a) The Office of the Administrator;
tection Agency, room 2203, John F. (b) Two Associate Administrators
Kennedy Federal Building, Boston, MA and four staff offices which advise the
02203. (Connecticut, Maine, Massachu- Administrator on cross-cutting Agency
setts, New Hampshire, Rhode Island, headquarters and regional issues and
and Vermont.) conduct programs with respect to
(2) Region II, U.S. Environmental EPA’s interface with other national
Protection Agency, Room 900, 26 Fed- and international governmental orga-
eral Plaza, New York, NY 10278. (New nizations;
Jersey, New York, Puerto Rico, and the (c) The Office of Inspector General;
Virgin Islands.) (d) The Office of General Counsel; and
(3) Region III, U.S. Environmental
(e) Nine operational offices, each
Protection Agency, 841 Chestnut
headed by an Assistant Administrator,
Street, Philadelphia, PA 19107. (Dela-
responsible for carrying out EPA’s
ware, Maryland, Pennsylvania, Vir-
major environmental and administra-
ginia, West Virginia, and the District
tive programs.
of Columbia.)
(4) Region IV, U.S. Environmental
§ 1.23 Office of the Administrator.
Protection Agency, 345 Courtland
Street NE., Atlanta, GA 30365. (Ala- The Environmental Protection Agen-
bama, Florida, Georgia, Kentucky, cy is headed by an Administrator who
Mississippi, North Carolina, South is appointed by the President, by and
Carolina, and Tennessee.) with the consent of the Senate. The
(5) Region V, U.S. Environmental Administrator is responsible to the
Protection Agency, 77 West Jackson President for providing overall super-
Boulevard, Chicago, IL 60604. (Illinois, vision to the Agency, and is assisted by
Indiana, Michigan, Minnesota, Ohio a Deputy Administrator also appointed
and Wisconsin.) by the President, by and with the con-
(6) Region VI, U.S. Environmental sent of the Senate. The Deputy Admin-
Protection Agency, 1201 Elm Street, istrator assists the Administrator in
Dallas, TX 75270. (Arkansas, Louisiana, the discharge of Agency duties and re-
New Mexico, Oklahoma, and Texas.) sponsibilities and serves as Acting Ad-
(7) Region VII, U.S. Environmental ministrator in the absence of the Ad-
Protection Agency, 726 Minnesota Ave- ministrator.
nue, Kansas City, KS 66101. (Iowa, Kan-
sas, Missouri, and Nebraska.) § 1.25 Staff Offices.
(8) Region VIII, U.S. Environmental (a) Office of Administrative Law
Protection Agency, 999 18th street, One Judges. The Office of Administrative
Denver Place, Denver, CO 80202. (Colo- Law Judges, under the supervision of
rado, Montana, North Dakota, South the Chief Administrative Law Judge, is
Dakota, Utah, and Wyoming.)
responsible for presiding over and con-
(9) Region IX, U.S. Environmental
ducting formal hearings, and issuance
Protection Agency, 215 Fremont
of initial decisions, if appropriate, in
Street, San Francisco, CA 94105. (Ari-
such proceedings. The Office provides
zona, California, Hawaii, Nevada,
supervision of the Administrative Law
American Samoa, Trust Territories of
Judges, who operate as a component of
the Pacific Islands, Guam, Wake Is-
the Office of Administrative Law
lands, and the Northern Marianas.)
Judges, in certain Agency Regional Of-
(10) Region X, U.S. Environmental
fices. The Office provides the Agency
Protection Agency, 1200 Sixth Avenue,
Hearing Clerk.
Seattle, WA 98101. (Alaska, Idaho, Or-
egon, and Washington.) (b) Office of Civil Rights. The Office of
Civil Rights, under the supervision of a
[50 FR 26721, June 28, 1985, as amended at 62 Director, serves as the principal ad-
FR 1833, Jan. 14, 1997] viser to the Administrator with respect
to EPA’s civil rights programs. The Of-
Subpart B—Headquarters fice develops policies, procedures, and
regulations to implement the Agency’s
§ 1.21 General. civil rights responsibilities, and pro-
EPA Headquarters is comprised of: vides direction to Regional and field
Environmental Protection Agency § 1.25
activities in the Office’s area of respon- develops programs to stimulate and

sibilities. The Office implements and improve involvement of small and mi-
monitors the Agency’s equal employ- nority business enterprises; and rec-
ment opportunity program; provides ommends the assignment of technical
advice and guidance to EPA program advisers to assist designated Procure-
officials and Regional Administrators ment Center Representatives of the
on EEO matters; serves as advocate for Small Business Administration in their
furthering career opportunities for mi- duties. The Office represents EPA at
norities and women; and processes hearings, interagency meetings, con-
complaints of discrimination for Agen- ferences and other appropriate forums
cy disposition. The office assures: on matters related to the advancement
(1) Maximum participation of minor- of these cited business enterprises in
ity business enterprises under EPA EPA’s Federal Contracting Program.
contracts and grants; (e)(1) Environmental Appeals Board.
(2) Equal employment opportunity The Environmental Appeals Board is a
under Agency service contracts, con- permanent body with continuing func-
struction contracts, and grants; tions composed of no more than four
(3) Compliance with the Davis-Bacon Board Members designated by the Ad-
Act and related acts;
ministrator. The Board shall decide
(4) Compliance with the provisions of
each matter before it in accordance
laws affecting Agency programs requir-
with applicable statutes and regula-
ing nondiscrimination on account of
tions. The Board typically shall sit on
age and physical handicap and;
matters before it in three-Member pan-
(5) Services or benefits are dispensed
els, and shall decide each matter by a
under any program or activity receiv-
majority vote. In the event that ab-
ing Agency financial assistance on a
nondiscrimination basis. sence or recusal prevents a three-Mem-
(c) Science Advisory Board. The ber panel, the Board shall sit on a mat-
Science Advisory Board, under the di- ter as a panel of two Members, and two
rection of a Director, provides expert Members shall constitute a quorum
and independent advice to the Adminis- under such circumstances. The Board
trator on the scientific and technical in its sole discretion shall establish
issues facing the Agency. The Office panels to consider matters before it.
advises on broad, scientific, technical The Board’s decisions regarding panel
and policy matters; assesses the results size and composition shall not be re-
of specific research efforts; assists in viewable. In the case of a tie vote, the
identifying emerging environmental matter shall be referred to the Admin-
problems; and advises the Adminis- istrator to break the tie.
trator on the cohesiveness and cur- (2) Functions. The Environmental Ap-
rency of the Agency’s scientific pro- peals Board shall exercise any author-
grams. ity expressly delegated to it in this
(d) Office of Small and Disadvantaged title. With respect to any matter for
Business Utilization. The Office of Small which authority has not been expressly
and Disadvantaged Business Utiliza- delegated to the Environmental Ap-
tion, under the supervision of a Direc- peals Board, the Environmental Ap-
tor, is responsible for developing policy peals Board shall, at the Administra-
and procedures implementing the tor’s request, provide advice and con-
Agency’s small and disadvantaged busi- sultation, make findings of fact and
ness utilization responsibilities. The conclusions of law, prepare a rec-
Office provides information and assist- ommended decision, or serve as the
ance to components of the Agency’s final decisionmaker, as the Adminis-
field offices responsible for carrying trator deems appropriate. In per-
out related activities. The Office devel- forming its functions, the Environ-
ops and implements a program to pro- mental Appeals Board may consult
vide the maximum utilization of with any EPA employee concerning
women-owned business enterprises in any matter governed by the rules set
all aspects of EPA contract work; in forth in this title, provided such con-
collaboration with the Procurement sultation does not violate applicable ex
and Contracts Management Division, parte rules in this title.
§ 1.27 40 CFR Ch. I (7–1–00 Edition)
(3) Qualifications. Each member of the nates Agency international contacts

Environmental Appeals Board shall be and commitments; serves as the focal
a graduate of an accredited law school point for responding to requests for in-
and a member in good standing of a formation relating to EPA inter-
recognized bar association of any State national activities; and provides an ini-
or the District of Columbia. Board tial point of contact for all foreign
Members shall not be employed by the visitors. The Office maintains liaison
Office of Enforcement, the Office of the with all relevant international organi-
General Counsel, a Regional Office, or zations and provides representation
any other office directly associated where appropriate. It establishes Agen-
with matters that could come before cy policy, and approves annual plans
the Environmental Appeals Board. A and modifications for travel abroad and
Board Member shall recuse himself or attendance at international con-
herself from deciding a particular case ferences and events. It provides admin-
if that Board Member in previous em-
istrative support for the general activi-
ployment performed prosecutorial or
ties of the Executive Secretary of the
investigative functions with respect to
U.S. side of the US–USSR/PRC agree-
the case, participated in the prepara-
ments on environmental protection
tion or presentation of evidence in the
and of the U.S. Coordinator for the
case, or was otherwise personally in-
volved in the case. NATO Committee on the Challenges of
Modern Society. The Office supervises
[50 FR 26721, June 28, 1985, as amended at 57 these programs with respect to activi-
FR 5323, Feb. 13, 1992; 63 FR 67780, Dec. 9, ties which are completely within the
1998]
purview of EPA.
§ 1.27 Offices of the Associate Adminis- (b) Office of Regional Operations. The
trators. Office of Regional Operations, under
(a) Office of International Activities. the supervision of an Associate Admin-
The Office of International Activities, istrator, reports directly to the Admin-
under the supervision of an Associate istrator and Deputy Administrator.
Administrator, provides direction to The Office serves as the primary com-
and supervision of the activities, pro- munications link between the Adminis-
grams, and staff assigned to the Office trator/Deputy Administrator and the
of International Activities. All of the Regional Administrators. It provides a
functions and responsibilities of the Headquarters focus for ensuring the in-
Associate Administrator are Agency- volvement of Regions, or consideration
wide, and apply to all international ac- of Regional views and needs, in all as-
tivities of the Agency. The Office de- pects of the Agency’s work. The Office
velops policies and procedures for the is responsible for assuring Regional
direction of the Agency’s international participation in Agency decision-mak-
programs and activities, subject to ing processes, assessing the impact of
U.S. foreign policy, and assures that Headquarters actions on Regional oper-
adequate program, scientific, and legal ations, and acting as ombudsman to re-
inputs are provided. It conducts con- solve Regional problems on behalf of
tinuing evaluations of the Agency’s the Administrator. The Associate Ad-
international activities and makes ap- ministrator coordinates Regional
propriate recommendations to the Ad- issues, organizes Regional Adminis-
ministrator. The Office advises the Ad- trator meetings and work groups; and
ministrator and principal Agency offi- coordinates Regional responses to spe-
cials on the progress and effect of for- cific issues. In addition, the Office is
eign and international programs and responsible for working with the Re-
issues. The Office serves as the Admin- gional Offices to further the consistent
istrator’s representative in contacts application of national program poli-
with the Department of State and cies by reinforcing existing administra-
other Federal agencies concerned with tive, procedural, and program policy
international affairs. It negotiates ar- mechanisms as well as through initi-
rangements or understandings relating ation of reviews of significant Regional
to international cooperation with for- issues of interest to the Administrator.
eign organizations. The Office coordi- It continually monitors responsiveness
and compliance with established poli- pervision of the Assistance Adminis-

cies and technical needs through for- trator for Administration and Re-
mal and informal contact and free dia- sources Management who provides
logue. The Office initiates and con- services to all of the programs and ac-
ducts on-site field visits to study, ana- tivities of the Agency, except as may
lyze, and resolve problems of Regional, be specifically noted. In addition, the
sectional, and national scale. Assistant Administrator has primary
responsibility Agencywide for policy
§ 1.29 Office of Inspector General. and procedures governing the func-
The Office of Inspector General as- tional areas outlined below. The major
sumes overall responsibility for audits functions of the Office include re-
and investigations relating to EPA pro- sources management and systems (in-
grams and operations. The Office pro- cluding budget and financial manage-
vides leadership and coordination and ment), personnel services, occupational
recommends policies for other Agency health and safety, administrative serv-
activities designed to promote econ- ices, organization and management
omy and efficiency and to prevent and analysis and systems development, in-
detect fraud and abuse is such pro- formation management and services,
grams and operations. The Office of the automated data processing systems,
Inspector General informs the Admin- procurement through contracts and
istrator, Deputy Administrator, and grants, and human resources manage-
Congress of serious problems, abuses ment. This Office is the primary point
and deficiencies relating to EPA proof contact and manages Agencywide in-
grams and operations, and of the neces- ternal controls, audit resolution and
sity for and progress of corrective ac- follow up, and government-wide man-
tion; and reviews existing and proposed agement improvement initiatives. In
legislation and regulations to assess the performance of the above functions
the impact on the administration of and responsibilities, the Assistant Ad-
EPA’s programs and operations. The ministrator for Administration and Re-
Office recommends policies for, and sources Management represents the
conducts or coordinates relationships Administrator in communications with
between, the Agency and other Fed- the Office of Management and Budget,
eral, State and local government agen- Office of Personnel Management, Gen-
cies, and nongovernmental entities on eral Accounting Office, General Serv-
all matters relating to the promotion ices Administration, Department of the
of economy and efficiency in the ad- Treasury, and other Federal agencies
ministration of, or the prevention and prescribing requirements for the con-
detection of fraud and abuse in, product of Government budget, fiscal man-
grams and operations administered by agement and administrative activities.
the Agency. (a) Office of Administration and Re-
sources Management, Research Triangle
§ 1.31 Office of General Counsel. Park, North Carolina, (RTP). The Office
The Office of General Counsel is of Administration and Resources Man-
under the supervision of the General agement (OARM), RTP, under the su-
Counsel who serves as the primary pervision of a Director, provides serv-
legal adviser to the Administrator. The ices to all of the programs and activi-
office provides legal services to all or- ties at RTP and certain financial and
ganizational elements of the Agency automated data processing services
with respect to all Agency programs Agencywide. The major functions of
and activities and also provides legal the Office include personnel services,
opinions, legal counsel, and litigation financial management, procurement
support; and assists in the formulation through contracts, library and other
and administration of the Agency’s information services, general services
policies and programs as legal adviser. (including safety and security, prop-
erty and supply, printing, distribution,
§ 1.33 Office of Administration and Re- facilities and other administrative
sources Management. services) and providing both local RTP
The Office of Administration and Re- and Agencywide automated data proc-
sources Management is under the su- essing systems services. The Director,
§ 1.33 40 CFR Ch. I (7–1–00 Edition)
OARM, RTP, supervises the Office of tions, and other Agency programs and
Administration, Financial Manage- functions as required. The Office over-
ment and Data Processing, RTP. sees the performance of these activities
(b) Office of Administration, Cincinnati, when carried out by other Agency com-
Ohio. The Office of Administration at ponents. The Office performs liaison
Cincinnati, Ohio, under the supervision for interagency sharing of information
of a Director, provides and administers and coordinates IRM activities with
personnel, procurement, safety and se- OMB and GSA. The Office ensures com-
curity, property and supply, printing, pliance with requirements of Public
distribution, facilities, and other ad- Law 96–511 and other Federal laws, reg-
ministrative service programs at Cin- ulations, and guidelines relative to
cinnati and other specified geographic IRM; and chairs the Agency’s IRM
locations. Steering Committee. The Office devel-
(c) Office of the Comptroller. The Of- ops Agency policies and standards; and
fice of the Comptroller, under the su- administers or oversees Agency pro-
pervision of the Comptroller, is respon- grams for library systems and services,
sible for Agencywide budget, resources internal records management, and the
management and financial manage- automated collection, processing, stor-
ment functions, including program age, retrieval and transmission of data
analysis and planning; budget formula- by or for Agency components and pro-
tion, preparation and execution; fund- grams. The Office provides national
ing allotments and allocations; and de-
program policy and technical guidance
veloping and maintaining accounting
for: The acquisition of all information
systems, fiscal controls, and systems
technology, systems and services by or
for payroll and disbursements. The As-
for Agency components and programs,
sistant Administrator’s resource sys-
inculding those systems and services
tems responsibilities are administered
by this Office. acquired by grantees and contractors
(d) Office of Administration. The Office using Agency funds; the operation of
of Administration, under the super- all Agency computers and tele-
vision of a Director, is responsible for communications hardware and facili-
the development and conduct of pro- ties; and the establishment and/or ap-
grams for personnel policies, proce- plication of telecommunications and
dures and operations; organization and Federal information processing stand-
management systems, control, and ards. The Office reviews and evaluates
services; facilities, property and space information systems and services, in-
management; personnel and property cluding office automation, which are
security; policies, procedures, and oper- operated by other Agency components;
ations related to procurement through and sets standards for and approves the
grants, contracts, and interagency selection of Agency personnel who are
agreements; and occupational health responsible for the technical manage-
and safety. ment of these activities. The Office co-
(e) Office of Information Resources ordinates its performance of these
Management. The Office of Information functions and activities with the Agen-
Resources Management (OIRM), under cy’s information collection policies and
the supervision of a Director, provides budgets managed by the Office of Pol-
for an information resource manage- icy, Planning and Evaluation.
ment program (IRM) consistent with (f) The Office of Human Resources
the provisions of Public Law 96–511. Management. The Office of Human Re-
The Office establishes policy, goals and sources Management (OHRM), under
objectives for implementation of IRM; the supervision of a Director, designs
develops annual and long-range plans strategies, plans, and policies aimedat
and budgets for IRM functions and ac- developing and training all employees,
tivities; and promotes IRM concepts revitalizing EPA organizations, and
throughout the Agency. The Office co- matching the right people with the
ordinates IRM activities; plans, devel- right jobs. The Office is responsible for
ops and operates information systems developing and assuring implementa-
and services in support of the Agency’s tion of policies and practices necessary
management and administrative func- for EPA to meet its present and future
10
workforce needs. This includes consid- toring, serves as the principal adviser
eration of the interrelationships be- to the Administrator in matters con-
tween the environmental protection cerning enforcement and compliance;
workforce needs of EPA and State gov- and provides the principal direction
ernments. For Senior Executive Serv- and review of civil enforcement activi-
ice (SES) personnel, SES candidates, ties for air, water, waste, pesticides,
Presidential Executive Interchange toxics, and radiation. The Assistant
Participants, and Management Interns, Administrator reviews the efforts of
OHRM establishes policies; assesses each Assistant and Regional Adminis-
and projects Agency executive needs trator to assure that EPA develops and
and workforce capabilities; creates, es- conducts a strong and consistent en-
tablishes, and implements training and forcement and compliance monitoring
development strategies and programs; program. The Office manages the na-
provides the full range of personnel tional criminal enforcement program;
functions; supports the Performance
ensures coordination of media office
Review Board (PRB) and the Executive
administrative compliance programs,
Resources Board (ERB); and reassigns
and civil and criminal enforcement ac-
SES personnel with the concurrence of
the ERB. For the areas of workforce tivities; and provides technical exper-
management and employee and organi- tise for enforcement activities.
zational development, OHRM develops
§ 1.37 Office of External Affairs.
strategies, plans, and policies; coordi-
nates Agencywide implementation of (a) Office of Federal Activities. The Of-
those strategies, plans, and policies; fice of Federal Activities is headed by
and provides technical assistance to a Director who reports to the Assistant
operating personnel offices and States. Administrator for External Affairs and
OHRM, in cooperation with the Office supervises all the functions of the Of-
of the Comptroller, evaluates problems fice. The Director acts as national pro-
with previous workyear use, monitors gram manager for five major programs
current workyear utilization, and that include:
projects future workyear needs in co- (1) The review of other agency envi-
ordination with the Agency’s budget ronmental impact statements and
process. The Office is the lead office for other major actions under the author-
coordination of human resources man- ity of Section 309 of the Clean Air Act;
agement with the Agency’s Strategic (2) EPA compliance with the Na-
Planning and Management System. tional Environmental Policy Act
The Office develops methodologies and (NEPA) and related laws, directives,
procedures for evaluations of Agency and Executive policies concerning spe-
human resources management activi- cial environmental areas and cultural
ties; conducts evaluations of human re-
resources;
sources management activities Agen-
(3) Compliance with Executive policy
cywide; and carries out human re-
sources management projects of special on American Indian affairs and the de-
interest to Agency management. The velopment of programs for environ-
Office coordinates its efforts with the mental protection on Indian lands; and
Office of Administration (specifically (4) The development and oversight of
the Personnel Management Division national programs and internal poli-
and the Management and Organization cies, strategies, and procedures for im-
Division), the Office of the Comp- plementing Executive Order 12088 and
troller, the Office of Information Re- other administrative or statutory pro-
sources Management, and the Office of visions concerning compliance with en-
Policy, Planning and Evaluation. vironmental requirements by Federal
facilities. The Director chairs the
§ 1.35 Office of Enforcement and Com- Standing Committee on Implementa-
pliance Monitoring. tion of Executive Order 12088. The Of-
The Office of Enforcement and Com- fice serves as the Environmental Pro-
pliance Monitoring, under the super- tection Agency’s (EPA) principal point
vision of the Assistant Administrator of contact and liaison with other Fed-
for Enforcement and Compliance Moni- eral agencies and provides consultation
11
§ 1.37 40 CFR Ch. I (7–1–00 Edition)
and technical assistance to those agen- ance of public affairs functions in the
cies relating to EPA’s areas of exper- Regional Offices of EPA, as well as at
tise and responsibility. The Office ad- laboratories and other field offices. The
ministers the filing and information Office of Public Affairs is responsible
system for all Federal Environmental for reviewing interagency agreements
Impact Statements under agreement and Headquarters purchase request req-
with the Council on Environmental uisitions expected to result in con-
Quality (CEQ) and provides liaison tracts in the area of public information
with CEQ on this function and related and community relations. It develops
matters of NEPA program administra- proposals and reviews Headquarters
tion. The Office provides a central grant applications under consideration
point of information for EPA and the when public affairs goals are involved.
public on environmental impact assess- (c) Office of Legislative Analysis. The
ment techniques and methodologies. Office of Legislative Analysis, under
(b) Office of Public Affairs. The Office the supervision of a Director who
of Public Affairs is under the super- serves in the capacity of Legislative
vision of a Director who serves as chief Counsel, is responsible for legislative
spokesperson for the Agency and as a drafting and liaison activities relating
principal adviser, along with the As-
to the Agency’s programs. It exercises
sistant Administrator for External Af-
responsibility for legislative drafting;
fairs, to the Adminstrator, Deputy Ad-
reports to the Office of Management
ministrator, and Senior Management
and Budget and congressional commit-
Officials, on public affairs aspects of
tees on proposed legislation and pend-
the Agency’s activities and programs.
The Office of Public Affairs provides to ing and enrolled bills, as required by
the media adequate and timely infor- OMB Circular No. A–19 and Bulletin
mation as well as responses to queries No. 72–6; provides testimony on legisla-
from the media on all EPA program action and other matters before congres-
tivities. It assures that the policy of sional committees; and reviews tran-
openness in all information matters, as scripts of legislative hearings. It main-
enunciated by the Administrator, is tains liaison with the Office of Con-
honored in all respects. Develops publi- gressional Liaison on all Agency ac-
cations to inform the general public of tivities of interest to the Congress. The
major EPA programs and activities; it Office works closely with the staffs of
also develops informational materials various Assistant Administrators, As-
for internal EPA use in Headquarters sociate Administrators, Regional Ad-
and at the Regions, Labs and Field Of- ministrators, and Staff Office Directors
fices. It maintains clearance systems in accordance with established Agency
and procedures for periodicals and non- procedures, in the development of the
technical information developed by Agency’s legislative program. The Of-
EPA for public distribution, and re- fice assists the Assistant Adminis-
views all publications for public affairs trator for External Affairs and the
interests. The Office of Public Affairs Agency’s senior policy officials in guid-
provides policy direction for, and co- ing legislative initiatives through the
ordination and oversight of EPA’s com- legislative process. It advises the As-
munity relations program. It provides sistant Administrator for Administra-
a system for ensuring that EPA edu- tion and Resources Management in
cates citizens and responds to their matters pertaining to appropriations
concerns about all environmental legislation. It works closely with the
issues and assures that there are oppor- Office of Federal Activities to assure
tunities for public involvement in the compliance with Agency procedures for
resolution of problems. The Office su- the preparation of environmental im-
pervises the production of audio-visual pact statements, in relation to pro-
materials, including graphics, radio posed legislation and reports on legis-
and video materials, for the general lation. The Office coordinates with the
public and for internal audiences, in Office of Management and Budget,
support of EPA policies and programs. other agencies, and congressional staff
The Office provides program direction members on matters within its area of
and professional review of the perform- responsibility; and develops suggested
12
State and local environmental legisla- Deputy Administrator in relations

tive proposals, using inputs provided with State, county, and local govern-
by other Agency components. The Leg- ment officials; coordinates and assists
islative Reference Library provides leg- Headquarters components in their han-
islative research services for the Agen- dling of broad-gauged and issue-ori-
cy. The Library secures and furnishes ented intergovernmental problems. It
congressional materials to all EPA em- works with the Regional Administra-
ployees and, if available, to other Gov- tors and the Office of Regional Oper-
ernment agencies and private organiza- ations to encourage the adoption of im-
tions; and it also provides the service proved methods for dealing effectively
of securing, upon request, EPA reports with State and local governments on
and materials for the Congress. specific EPA program initiatives;
(d) Office of Congressional Liaison. The works with the Immediate Office of the
Office of Congressional Liaison is Administrator, Office of Congressional
under the supervision of a Director who Liaison, Office of Public Affairs, and
serves as the principal adviser to the the Regional Offices to develop and
Administrator with respect to congres- carry out a comprehensive liaison pro-
sional activities. All of the functions gram; and tracks legislative initiatives
and responsibilities of the Director are which affect the Agency’s intergovern-
Agencywide and apply to the provision mental relations. It advises and sup-
of services with respect to all of the ports the Office Director in imple-
programs and activities of the Agency. menting the President’s Environ-
The Office serves as the principal point mental Youth Awards program.
of congressional contact with the [50 FR 26721, June 28, 1985, as amended at 52
Agency and maintains an effective liai- FR 30359, Aug. 14, 1987]
son with the Congress on Agency ac-
tivities of interest to the Congress and, § 1.39 Office of Policy, Planning and
as necessary, maintains liaison with Evaluation.
Agency Regional and field officials, The Assistant Administrator for Pol-
other Government agencies, and public icy, Planning and Evaluation services
and private groups having an interest as principal adviser to the Adminis-
in legislative matters affecting the trator on Agency policy and planning
Agency. It assures the provision of issues and as such is responsible for su-
prompt response to the Congress on all pervision and management of the fol-
inquiries relating to activities of the lowing: Policy analysis; standards and
Agency; and monitors and coordinates regulations; and management strategy
the continuing operating contacts be- and evaluation. The Assistant Admin-
tween the staff of the Office of the istrator represents the Administrator
Comptroller and staff of the Appropria- with Congress and the Office of Man-
tions Subcommittees of Congress. agement and Budget, and other Federal
(e) Office of Community and Intergov- agencies prescribing requirements for
ernmental Relations. The Office of Com- conduct for Government management
munity and Intergovernmental Rela- activities.
tions is under the supervision of a Di- (a) Office of Policy Analysis. The Of-
rector who serves as the principal point fice of Policy Analysis is under the su-
of contact with public interest groups pervision of a Director who performs
representing general purpose State and the following functions on an Agency-
local governments, and is the principal wide basis: economic analysis of Agen-
source of advice and information for cy programs, policies, standards, and
the Administrator and the Assistant regulations, including the estimation
Administrator for External Affairs on of abatement costs; research into de-
intergovernmental relations. The Of- veloping new benefits models; benefit-
fice maintains liaison on intergovern- cost analyses; impact assessments; in-
mental issues with the White House termediate and long-range strategic
and Office of Management and Budget studies; consultation and analytical as-
(OMB); identifies and seeks solutions sistance in the areas described above to
to emerging intergovernmental issues; senior policy and program officials and
recommends and coordinates personal other offices in the Agency; develop-
involvement by the Administrator and ment and coordination proposals for
13
§ 1.41 40 CFR Ch. I (7–1–00 Edition)
major new Agency initiatives; liaison ministrator in matters pertaining to

with other agencies; universities, and air and radiation programs, and is re-
interest groups on major policy issues sponsible for the management of these
and development of a coordinated EPA programs: Program policy devel-
Agency position; and development of opment and evaluation; environmental
integrated pollution control strategies and pollution sources’ standards devel-
for selected industrial and geo- opment; enforcement of standards; pro-
graphical areas. gram policy guidance and overview,
(b) Office of Standards and Regula- technical support or conduct of compli-
tions. The Office of Standards and Reg- ance activities and evaluation of Re-
ulations is under the supervision of a gional air and radiation program ac-
Director who is responsible for: involv- tivities; development of programs for
ing the Office of Policy, Planning and technical assistance and technology
Evaluation (OPPE) in regulatory re- transfer; and selected demonstration
view; conducting technical and statis- programs.
tical analyses of proposed standards, (a) Office of Mobile Sources. The Office
regulations and guidelines; serving as
of Mobile Sources, under the super-
the Agency focal point for identifying,
vision of a Director, is responsible for
developing and implementing alter-
the mobile source air pollution control
natives to conventional ‘‘command and
functions of the Office of Air and Radi-
control’’ regulations; conducting anal-
ation. The Office is responsible for:
yses of Agency activities related to
chemical substances and providing Characterizing emissions from mobile
mechanisms for establishing regu- sources and related fuels; developing
latory priorities and resolving sci- programs for their control, including
entific issues affecting rulemaking; en- assessment of the status of control
suring Agency compliance with the Pa- technology and in-use vehicle emis-
perwork Reduction Act; evaluating and sions; for carrying out, in coordination
reviewing all Agency information col- with the Office of Enforcement and
lection requests and activities, and, in Compliance Monitoring as appropriate,
cooperation with the Office of Adminis- a regulatory compliance program to
tration and Resources Management ensure adherence of mobile sources to
and the Office of Management Systems standards; and for fostering the devel-
and Evaluation, evaluating Agency opment of State motor vehicles emis-
management and uses of data for decision inspection and maintenance pro-
sion-making. grams.
(c) Office of Management Systems and (b) Office of Air Quality Planning and
Evaluation. The Office of Management Standards. The Office of Air Quality
Systems and Evaluation is under the Planning and Standards, under the su-
supervision of a Director who directs pervision of a Director, is responsible
and coordinates the development, im- for the air quality planning and stand-
plementation and administration of ards functions of the Office of Air and
Agencywide systems for planning, Radiation. The Director for Air Quality
tracking, and evaluating the accom- Planning and Standards is responsible
plishments of Agency programs. In for emission standards for new sta-
consultation with other offices, the Of- tionary sources, and emission stand-
fice develops a long-range policy ards for hazardous pollutants; for de-
framework for Agency goals, and objec- veloping national programs, technical
tives, identifies strategies for achiev- policies, regulations, guidelines, and
ing goals, establishes timetables for criteria for air pollution control; for
objectives, and ensures that programs assessing the national air pollution
are evaluated against their accom- control program and the success in
plishments of goals. achieving air quality goals; for pro-
viding assistance to the States, indus-
§ 1.41 Office of Air and Radiation. try and other organizations through
The Office of Air and Radiation is personnel training activities and tech-
under supervision of the Assistant Ad- nical information; for providing tech-
ministrator for Air and Radiation who nical direction and support to Regional
serves as principal adviser to the Ad- Offices and other organizations; for
14
evaluating Regional programs with re- stances activities. The Assistant Ad-
spect to State implementation plans ministrator has responsibility for es-
and strategies, technical assistance, tablishing Agency strategies for imple-
and resource requirements and alloca- mentation and integration of the pes-
tions for air related programs; for de- ticides and the toxic substances pro-
veloping and maintaining a national grams under applicable Federal stat-
air programs data system, including utes; developing and operating Agency
air quality, emissions and other tech- programs and policies for assessment
nical data; and for providing effective and control of pesticides and toxic sub-
technology transfer through the trans- stances; developing recommendations
lation of technological developments for Agency priorities for research,
into improved control program proce- monitoring, regulatory, and informa-
dures. tion-gathering activities relating to
(c) Office of Radiation Programs. The pesticides and toxic substances; devel-
Office of Radiation Programs, under oping scientific, technical, economic,
the supervision of a Director, is respon- and social data bases for the conduct of
sible to the Assistant Administrator hazard assessments and evaluations in
for Air and Radiation for the radiation support of toxic substances and pes-
activities of the Agency, including de- ticides activities; directing pesticides
velopment of radiation protection cri- and toxic substances compliance pro-
teria, standards, and policies; measure- grams; providing toxic substances and
ment and control of radiation expo-
pesticides program guidance to EPA
sure; and research requirements for ra-
Regional Offices; and monitoring, eval-
diation programs. The Office provides
uating, and assessing pesticides and
technical assistance to States through
toxic substances program operations in
EPA Regional Offices and other agen-
EPA Headquarters and Regional Of-
cies having radiation protection pro-
grams; establishes and directs a na- fices.
tional surveillance and investigation (a) Office of Pesticide Programs. The
program for measuring radiation levels Office of Pesticide Programs, under the
in the environment; evaluates and as- management of a Director and Deputy
sesses the impact of radiation on the Director are responsible to the Assist-
general public and the environment; ant Administrator for leadership of the
and maintains liaison with other public overall pesticide activities of the Agen-
and private organizations involved in cy under the authority of the Federal
environmental radiation protection ac- Insecticide, Fungicide, and Rodenticide
tivities. The Office coordinates with Act and several provisions of the Fed-
and assists the Office of Enforcement eral Food, Drug, and Cosmetic Act, in-
and Compliance Monitoring in enforce- cluding the development of strategic
ment activities where EPA has juris- plans for the control of the national
diction. The Office provides editorial environmental pesticide situation.
policy and guidance, and assists in pre- Such plans are implemented by the Of-
paring publications. fice of Pesticide Programs, other EPA
components, other Federal agencies, or
§ 1.43 Office of Prevention, Pesticides by State, local, and private sectors.
and Toxic Substances. The Office is also responsible for estab-
The Assistant Administrator serves lishment of tolerance levels for pes-
as the principal adviser to the Admin- ticide residues which occur in or on
istrator in matters pertaining to as- food; registration and reregistration of
sessment and regulation of pesticides pesticides; special review of pesticides
and toxic substances and is responsible suspected of posing unreasonable risks
for managing the Agency’s pesticides to human health or the environment;
and toxic substances programs under monitoring of pesticide residue levels
the Federal Insecticide, Fungicide, and in food, humans, and nontarget fish
Rodenticide Act (FIFRA); the Federal and wildlife; preparation of pesticide
Food, Drug, and Cosmetic Act; the registration guidelines; development of
Toxic Substances Control Act (TSCA); standards for the registration and re-
and for promoting coordination of all registration of pesticide products; pro-
Agency programs engaged in toxic sub- vision of program policy direction to
15
§ 1.43 40 CFR Ch. I (7–1–00 Edition)
technical and manpower training ac- icy direction to the Regional Offices
tivities in the pesticides area; develop- and the States, prepares guidance and
ment of research needs and monitoring policy on compliance issues, estab-
requirements for the pesticide program lishes compliance priorities, provides
and related areas; review of impact technical support for litigation activ-
statements dealing with pesticides; and ity, concurs on enforcement actions,
carrying out of assigned international maintains liaison with the National
activities. Enforcement Investigations Center, de-
(b) Office of Pollution Prevention and velops annual fiscal budgets for the na-
Toxics. The Office of Pollution Preven- tional programs, and manages fiscal
tion and Toxics (OPPT), under the and personnel resources for the Head-
management of a Director and Deputy
quarters programs. The Office directs
Director is responsible to the Assistant
and manages the Office of Prevention,
Administrator for those activities of
the Agency mandated by the Toxic Pesticides and Toxic Substances’ lab-
Substances Control Act. The Director oratory data integrity program which
is responsible for developing and oper- conducts laboratory inspections and
ating Agency programs and policies for audits of testing data. The Office issues
new and existing chemicals. In each of civil administrative complaints and
these areas, the Director is responsible other administrative orders in cases of
for information collection and coordi- first impression, overriding national
nation; data development; health, envi- significance, or violations by any enti-
ronmental and economic assessment; ty located in more than one Region.
and negotiated or regulatory control The office coordinates with the Office
actions. The Director provides oper- of General Counsel and the Office of
ational guidance to EPA Regional Of- Enforcement and Compliance Moni-
fices, reviews and evaluates toxic sub- toring in an attorney-client relation-
stances activities at EPA Headquarters ship, with those Offices providing legal
and Regional Offices; coordinates support for informal and formal admin-
TSCA activities with other EPA offices istrative resolutions of violations; for
and Federal and State agencies, and conducting litigation; for interpreting
conducts the export notification re- statutes, regulations and other legal
quired by TSCA and provides informa- precedents covering EPA’s activities;
tion to importers. The Director is re- and for advising program managers on
sponsible for developing policies and the legal implications of alternative
procedures for the coordination and in- courses of action. The Office of Compli-
tegration of Agency and Federal activi- ance Monitoring coordinates with the
ties concerning toxic substances. The Office of Pesticide Programs in the
Director is also responsible for coordi- conduct of pesticide enforcement com-
nating communication with the in- pliance and registration programs
dustrial community, environmental under the Federal Insecticide, Fun-
groups, and other interested parties on
gicide, and Rodenticide Act and par-
matters relating to the implementa-
ticipates in decisions involving the
tion of TSCA; providing technical sup-
cancellation or suspension of registra-
port to international activities man-
aged by the Office of International Ac- tion. The Office establishes policy and
tivities; and managing the joint plan- operating procedures for pesticide com-
ning of toxic research and development pliance activities including sampling
under the auspices of the Pesticides/ programs, export certification, moni-
Toxic Substances Research Committee. toring programs to assure compliance
(c) Office of Compliance Monitoring. with experimental use permits, pes-
The Office of Compliance Monitoring, ticide use restrictions, and record-
under the supervision of a Director, keeping requirements, and determines
plans, directs, and coordinates the pes- when and whether compliance actions
ticides and toxic substances compli- are appropriate. The Office establishes
ance programs of the Agency. More policy and guidance for the State coop-
specifically, the Office provides a na- erative enforcement agreement pro-
tional pesticides and toxic substances gram and the applicator training and
compliance overview and program pol- certification program. The Office of
16
Compliance Monitoring also coordi- ance. The Office of Acid Deposition, En-
nates with the Office of Pollution Pre- vironmental Monitoring and Quality
vention and Toxics in the conduct of Assurance (OADEMQA), under the su-
regulatory and compliance programs pervision of an Office Director, is re-
under the Toxic Substances Control sponsible for planning, managing and
Act and participates in regulation de- evaluating a comprehensive program
velopment for TSCA. The Office par- for:
ticipates in the control of imminent (1) Monitoring the cause and effects
hazards under TSCA, inspects facilities of acid deposition;
subject to TSCA regulation as a part of (2) Research and development on the
investigations which are national in causes, effects and corrective steps for
scope or which require specialized ex- the acid deposition phenomenon;
pertise, and samples and analyzes (3) Research with respect to the
chemicals to determine compliance transport and fate of pollutants which
with TSCA. The Office coordinates and are released into the atmosphere;
provides guidance to other TSCA com- (4) Development and demonstration
pliance activities, including the State of techniques and methods to measure
cooperative enforcement agreement exposure and to relate ambient con-
program and the preparation of admin- centrations to exposure by critical re-
istrative suits. ceptors;
[50 FR 26721, June 28, 1985, as amended at 57 (5) Research, development and dem-
FR 28087, June 24, 1992] onstration of new monitoring methods,
systems, techniques and equipment for
§ 1.45 Office of Research and Develop- detection, identification and character-
ment. ization of pollutants at the source and
The Office of Research and Develop- in the ambient environment and for
ment is under the supervision of the use as reference or standard moni-
Assistant Administrator for Research toring methods;
and Development who serves as the (6) Establishment, direction and co-
principal science adviser to the Admin- ordination of Agencywide Quality As-
istrator, and is responsible for the de- surance Program; and
velopment, direction, and conduct of a (7) Development and provision of
national research, development and quality assurance methods, techniques
demonstration program in: Pollution and material including validation and
sources, fate, and health and welfare standardization of analytical methods,
effects; pollution prevention and con- sampling techniques, quality control
trol, and waste management and utili- methods, standard reference materials,
zation technology; environmental and techniques for data collection,
sciences; and monitoring systems. The evaluation and interpretation. The Of-
Office participates in the development fice identifies specific research, devel-
of Agency policy, standards, and regu- opment, demonstration and service
lations and provides for dissemination needs and priorities; establishes pro-
of scientific and technical knowledge, gram policies and guidelines; develops
including analytical methods, moni- program plans including objectives and
toring techniques, and modeling meth- estimates of resources required to ac-
odologies. The Office serves as coordi- complish objectives; administers the
nator for the Agency’s policies and pro- approved program and activities; as-
grams concerning carcinogenesis and signs program responsibility and re-
related problems and assures appro- sources to the laboratories assigned by
priate quality control and standardiza- the Assistant Administrator; directs
tion of analytical measurement and and supervises assigned laboratories in
monitoring techniques utilized by the program administration; and conducts
Agency. The Office exercises review reviews of program progress and takes
and concurrence responsibilities on an action as necessary to assure timeli-
Agencywide basis in all budgeting and ness, quality and responsiveness of out-
planning actions involving monitoring puts.
which require Heardquarters approval. (b) Office of Environmental Engineering
(a) Office of Acid Deposition, Environ- and Technology Demonstration. The Of-
mental Monitoring and Quality Assur- fice of Environmental Engineering and
17
§ 1.45 40 CFR Ch. I (7–1–00 Edition)
Technology Demonstration (OEETD) in the Office of Research and Develop-

under the supervision of a Director, is ment for providing liaison with the
responsible for planning, managing, rest of the Agency and with the De-
and evaluating a comprehensive pro- partment of Energy on issues associ-
gram of research, development, and ated with energy development. The Of-
demonstration of cost effective meth- fice is also the focal point within the
ods and technologies to: Office of Research and Development for
(1) Control Environmental impacts liaison with the rest of the Agency on
associated with the extraction, proc- issues related to engineering reseach
essing, conversion, and transportation and development and the control of
of energy, minerals, and other re- pollution discharges.
sources, and with industrial processing (c) Office of Environmental Processes
and manufacturing facilities; and Effects Research. The Office of Envi-
(2) Control environmental impacts of ronmental Processes and Effects Re-
public sector activities including pub- search, under the supervision of the Di-
licly-owned waste water and solid rector, is responsible for planning,
waste facilities; managing, and evaluating a com-
(3) Control and manage hazardous prehensive research program to de-
waste generation, storage, treatment, velop the scientific and technological
and disposal; methods and data necessary to under-
(4) Provide innovative technologies stand ecological processes, and predict
for response actions under Superfund broad ecosystems impacts, and to man-
and technologies for control of emer- age the entry, movement, and fate of
gency spills of oils and hazardous pollutants upon nonhuman organisms
waste; and ecosystems. The comprehensive
(5) Improve drinking water supply program includes:
and system operations, including im- (1) The development of organism and
proved understanding of water supply ecosystem level effect data needed for
technology and water supply criteria; the establishment of standards, cri-
(6) Characterize, reduce, and mitigate teria or guidelines for the protection of
indoor air pollutants including radon; nonhuman components of the environ-
and ment and ecosystems integrity and the
(7) Characterize, reduce, and mitigate prevention of harmful human exposure
acid rain precursors from stationary to pollutants;
sources. Development of engineering (2) The development of methods to
data needed by the Agency in review- determine and predict the fate, trans-
ing premanufacturing notices relative port, and environmental levels which
to assessing potential release and expo- may result in human exposure and ex-
sure to chemicals, treatability by posure of nonhuman components of the
waste treatment systems, containment environment, resulting from the dis-
and control of genetically engineered charge of pollutants, singly or in com-
organisms, and development of alter- bination into the environment, includ-
natives to mitigate the likelihood of ing development of source criteria for
release and exposure to existing chemi- protection of environmental quality;
cals. In carrying out these responsibil- (3) The development and demonstra-
ities, the Office develops program plans tion of methods for the control or man-
and manages the resources assigned to agement of adverse environmental im-
it; implements the approved programs pacts from agriculture and other rural
and activities; assigns objectives and nonprofit sources;
resources to the OEETD laboratories; (4) The development and demonstra-
conducts appropriate reviews to assure tion of integrated pest management
the quality, timeliness, and responsive- strategies for the management of agri-
ness of outputs; and conducts analyses culture and urban pests which utilize
of the relative environmental and so- alternative biological, cultural and
cioeconomic impacts of engineering chemical controls;
methods and control technologies and (5) The development of a laboratory
strategies. The Office of Environ- and fieldscale screening tests to pro-
mental Engineering and Technology vide data that can be used to predict
Demonstration is the focal point with- the behavior of pollutants in terms of
18
movement in the environmental, accu- its laboratories and Headquarters

mulation in the food chain, effects on staffs, the Office provides a focal point
organisms, and broad escosystem im- for matters pertaining to the effects of
pacts; human exposure to environmental pol-
(6) Coordination of interagency re- lutants.
search activities associated with the (e) Office of Health and Environmental
health and environmental impacts of Assessment (OHEA). The Office of
energy production and use; and Health and Environmental Assessment,
(7) development and demonstration of under the supervision of a Director, is
methods for restoring degraded eco- the principal adviser on matters relat-
system by means other than source ing to the development of health cri-
control. teria, health affects assessment and
(d) Office of Health Research. The Of- risk estimation, to the Assistant Ad-
fice of Health Research under the su- ministrator for Research and Develop-
pervision of a Director, is responsible ment. The Director’s Office: Develops
for the management of planning, im- recommendations on OHEA programs
plementing, and evaluating a com- including the identification and devel-
prehensive, integrated human health opment of alternative program goals,
research program which documents priorities, objectives and work plans;
acute and chronic adverse effects to develops recommendations on overall
man from environmental exposure to office policies and means for their im-
pollutants and determines those expo- plementation; performs the critical
sures which have a potentially adverse path planning necessary to assure a
effect on humans. This documentation timely production of OHEA informa-
is utilized by ORD for criteria develop- tion in response to program office
ment and scientific assessments in sup- needs; serves as an Agency health as-
port of the Agency’s regulating and sessment advocate for issue resolution
standard-setting activities. To attain and regulatory review in the Agency
this objective, the program develops Steering Committee, Science Advisory
tests systems and associated methods Board, and in cooperation with other
and protocols, such as predictive mod- Federal agencies and the scientific and
els to determine similarities and dif- technical community; and provides ad-
ferences among test organisms and ministrative support services to the
man; develops methodology and con- components of OHEA. The Director’s
ducts laboratory and field research Office provides Headquarters coordina-
studies; and develops interagency pro- tion for the Environmental Criteria
grams which effectively use pollutants. and Assessment Offices.
The Office of Health Research is the (f) Office of Exploratory Research. The
Agency’s focal point within the Office Office of Exploratory Research (OER),
of Research and Development for pro- under the supervision of a Director, is
viding liaison relative to human health responsible for overall planning, ad-
effects and related human exposure ministering, managing, and evaluating
issues (excluding issues related to the EPA’s anticipatory and extramural
planning and implementation of re- grant research in response to Agency
search on the human health effects of priorities, as articulated by Agency
energy pollutants that is conducted planning mechanisms and ORD’s Re-
under the Interagency Energy/Environ- search Committees. The Director ad-
ment Program). It responds with recog- vises the Assistance Administrator on
nized authority to changing require- the direction, scientific quality and ef-
ments of the Regions, program offices fectiveness of ORD’s long-term sci-
and other offices for priority technical entific review and evaluation; and re-
assistance. In close coordination with search funding assistance efforts. The
Agency research and advisory commit- responsibilities of this office include:
tees, other agencies and offices, and Administering ORD’s scientific review
interaction with academic and other of extramural requests for research
independent scientific bodies, the Of- funding assistance; developing research
fice develops health science policy for proposal solicitations; managing grant
the Agency. Through these relation- projects; and ensuring project quality
ships and the scientific capabilities of and optimum dissemination of results.
19
§ 1.47 40 CFR Ch. I (7–1–00 Edition)
The OER is responsible for analyzing waste sites and spills (including oil
EPA’s long-range environmental re- spills); long-term strategic planning
search concerns; forecasting emerging and special studies; economic and long-
and potential environmental problems term environmental analyses; eco-
and manpower needs; identifying Fed- nomic impact assessment of RCRA and
eral workforce training programs to be CERCLA regulations; analyses of alter-
used by State and local governments; native technologies and trends; and
assuring the participation of minority cost-benefit analyses and development
institutions in environmental research of OSWER environmental criteria.
and development activities; and con-
(a) Office of Waste Programs Enforce-
ducting special studies in response to
ment. The Office of Waste Programs En-
high priority national environmental
needs and problems. This office serves forcement (OWPE), under the super-
as an ORD focal point for university revision of a Director, manages a na-
lations and other Federal research and tional program of technical compliance
development agencies related to EPA’s and enforcement under CERCLA and
extramural research program. RCRA. The Office provides guidance
and support for the implementation of
[50 FR 26721, June 28, 1985, as amended at 52
the CERCLA and RCRA compliance
FR 30360, Aug. 14, 1987]
and enforcement programs. This in-
§ 1.47 Office of Solid Waste and Emer- cludes the development of program
gency Response. strategies, long-term and yearly goals,
The Office of Solid Waste and Emer- and the formulation of budgets and
gency Response (OSWER), under the plans to support implementation of
supervision of the Assistant Adminis- strategies and goals. The Office pro-
trator for Solid Waste and Emergency vides program guidance through the
Response, provides Agencywide policy, development and issuance of policies,
guidance, and direction for the Agen- guidance and other documents and
cy’s solid and hazardous wastes and through training and technical assist-
emergency response programs. This Of- ance. The Office oversees and supports
fice has primary responsibility for im- Regions and States in the implementa-
plementing the Resource Conservation tion of the CERCLA and RCRA enforce-
and Recovery Act (RCRA) and the ment programs. The Office may assume
Comprehensive Environmental Re- responsibility for direct management
sponse, Compensation and Liability of a limited number of CERCLA and
Act (CERCLA—‘‘Superfund’’). In addi- RCRA enforcement actions which are
tion to managing those programs, the multi-regional in nature or are cases of
Assistant Administrator serves as prin- national significance. The Office serves
cipal adviser to the Administrator in as the national technical expert for all
matters pertaining to them. The As- matters relating to CERCLA and
sistant Administrator’s responsibilities RCRA compliance and enforcement. It
include: Program policy development represents the interest of the CERCLA
and evaluation; development of appro-
and RCRA enforcement programs to
priate hazardous waste standards and
other offices of the Agency. In coordi-
regulations; ensuring compliance with
nation with the Office of External Af-
applicable laws and regulations; pro-
fairs (OEA) and IO–OSWER, represents
gram policy guidance and overview,
technical support, and evaluation of the program to external organizations,
Regional solid and hazardous wastes including the Office of Management
and emergency response activities; de- and Budget (OMB), Congress, U.S. De-
velopment of programs for technical, partment of Justice and other Federal
programmatic, and compliance assist- agencies, the media, public interest
ance to States and local governments; and industry groups, State and local
development of guidelines and stand- governments and their associations
ards for the land disposal of hazardous and the public.
wastes; analyses of the recovery of use- (b) Office of Solid Waste. The Office of
ful energy from solid waste; develop- Solid Waste, under the supervision of a
ment and implementation of a program Director, is responsible for the solid
to respond to uncontrolled hazardous and hazardous waste activities of the
20
Agency. In particular, this Office is re- implementation of Subtitle I of the Re-

sponsible for implementing the Re- source Conservation and Recovery Act
source Conservation and Recovery Act. (RCRA), as amended. The Office devel-
The Office provides program policy di- ops and promulgates regulations and
rection to and evaluation of such ac- policies including notification, tank
tivities throughout the Agency and es- design and installation, corrective ac-
tablishes solid and hazardous wastes tion, and State program approvals. It
research requirements for EPA. also plans for an oversees utilization of
(c) Office of Emergency and Remedial the Underground Storage Tank Trust
Response. The Office of Emergency and Fund established by the Superfund
Remedial Response, under the super- Amendments and Reauthorization Act
vision of a Director, is responsible for of 1986 (SARA).
the emergency and remedial response [50 FR 26721, June 28, 1985, as amended at 52
functions of the Agency (i.e., FR 30360, Aug. 14, 1987]
CERCLA). The Office is specifically re-
sponsible for: § 1.49 Office of Water.
(1) Developing national strategy, pro- The Office of Water, under the super-
grams, technical policies, regulations, vision of the Assistant Administrator
and guidelines for the control of aban- for Water who serves as the principal
doned hazardous waste sites, and re- adviser to the Administrator in mat-
sponse to and prevention of oil and haz- ters pertaining to water programs, is
ardous substance spills; responsible for management of EPA’s
(2) Providing direction, guidance, and water programs. Functions of the Of-
support to the Environmental Re- fice include program policy develop-
sponse Teams and overseeing their ac- ment and evaluation; environmental
tivities; and pollution source standards develop-
(3) Providing direction, guidance, and ment; program policy guidance and
support to the Agency’s non-enforce- overview; technical support; and eval-
ment emergency and remedial response uation of Regional water activities; the
programs, including emergency and re- conduct of compliance and permitting
medial responses to hazardous waste activities as they relate to drinking
sites; water and water programs; develop-
(4) Developing national accomplishment of programs for technical assist-
ment plans and resources; ance and technology transfer; develop-
(5) Scheduling the guidelines for pro- ment of selected demonstration pro-
gram plans; grams; economic and long-term envi-
(6) Assisting in the training of per- ronmental analysis; and marine and es-
sonnel; tuarine protection.
(7) Monitoring and evaluating the (a) Office of Water Enforcement and
performance, progress, and fiscal sta- Permits. The Office of Water Enforce-
tus of the Regions in implementing ment and Permits, under the super-
emergency and remedial response provision of a Director, develops policies,
gram plans; strategies, procedures and guidance for
(8) Maintaining liaison with con- EPA and State compliance monitoring,
cerned public and private national or- evaluation, and enforcement programs
ganizations for emergency response; for the Clean Water Act and the Marine
(9) Supporting State emergency re- Protection Research and Sanctuaries
sponse programs; and Act. The Office also provides national
(10) Coordinating Office activities program direction to the National Pol-
with other EPA programs. lutant Discharge Elimination System
(d) Office of Underground Storage permit program. The office has over-
Tanks. The Office of Underground Stor- view responsibilities and provides tech-
age Tanks, under the supervision of a nical assistance to the regional activi-
Director, is responsible for defining, ties in both enforcement and permit-
planning, and implementing regulation ting programs.
of underground storage tanks con- (b) Office of Water Regulations and
taining petroleum, petroleum products, Standards. The Office of Water Regula-
and chemical products. In particular, tions and Standards, under the super-
this Office is responsible for overseeing vision of a Director, is responsible for
21
§ 1.49 40 CFR Ch. I (7–1–00 Edition)
the Agency’s water regulations and (d) Office of Drinking Water. The Of-
standards functions. The Office is re- fice of Drinking Water, under the su-
sponsible for developing an overall pro- pervision of a Director, is responsible
gram strategy for the achievement of for water supply activities of the Agen-
water pollution abatement in coopera- cy, including the development of an
tion with other appropriate program implementation strategy which pro-
offices. The Office assures the coordi- vides the national policy direction and
nation of all national water-related ac- coordination for the program. This Of-
tivities within this water program fice develops regulations and guide-
strategy, and monitors national lines to protect drinking water quality
progress toward the achievement of and existing and future underground
water quality goals and is responsible sources of drinking water, develops
for the development of effluent guide- program policy and guidance for en-
lines and water quality standards, and forcement and compliance activities,
other pollutant standards, regulations, and recommends policy for water sup-
and guidelines within the program reply protection activities. The office
sponsibilities of the Office. It exercises provides guidance and technical infor-
overall responsibility for the develop- mation to State agencies, local utili-
ment of effective State and Regional ties, and Federal facilities through the
water quality regulatory control pro- Regional Offices on program planning
grams. The Office is responsible for the and phasing; evaluates the national
development and maintenance of a cen-
level of compliance with the regula-
tralized water programs data system
tions; plans and develops policy guid-
including compatible water quality,
ance for response to national, Re-
discharger, and program data files uti-
gional, and local emergencies; reviews
lizing, but not displacing, files devel-
and evaluates, with Regional Offices,
oped and maintained by other program
offices. It is responsible for developing technical data for the designation of
national accomplishment plans and re- sole-source aquifers; designs a national
source and schedule guidelines for program of public information; pro-
monitoring and evaluating the per- vides program policy direction for
formance, progress, and fiscal status of technical assistance and manpower
the organization in implementing pro- training activities in the water supply
gram plans. The Office represents EPA area; identifies research needs and de-
in activities with other Federal agen- velops monitoring requirements for the
cies concerned with water quality regu- national water supply program; devel-
lations and standards. ops national accomplishments’ plans
(c) Office of Municipal Pollution Con- and resource schedule guidelines for
trol. The Office of Municipal Pollution monitoring and evaluating the pro-
Control, under the supervision of a Di- gram plans, and program performance,
rector, is responsible for the Agency’s and fiscal status; develops program
water program operations functions. plans, and budget and program status
The Office is responsible for developing reports for the water supply program;
national strategies, program and policy coordinates water supply activities
recommendations, regulations and with other Federal agencies as nec-
guidelines for municipal water pollu- essary; and serves as liaison with the
tion control; for providing technical di- National Drinking Water Advisory
rection and support to Regional Offices Council.
and other organizations; and for evalu- (e) Office of Ground-Water Protection.
ating Regional and State programs The Office of Ground-Water Protection,
with respect to municipal point source under the supervision of a Director,
abatement and control, and manpower oversees implementation of the Agen-
development for water-related activi- cy’s Ground-water Protection Strat-
ties. The Office assures that priority egy. This Office coordinates support of
Headquarters and regional activities Headquarters and regional activities to
are planned and carried out in a coordi- develop stronger State government or-
nated and integrated fashion, including ganizations and programs which foster
developing and implementing data sub- ground-water protection. The Office di-
mission systems. rects and coordinates Agency analysis
22
Environmental Protection Agency Pt. 2
and approaches to unaddressed prob- for comprehensive and integrated envi-

lems of ground-water contamination; is ronmental protection activities;
principally responsible for establishing (c) Total resource management in
and implementing a framework for de- their Regions within guidelines pro-
cision-making at EPA on ground-water vided by Headquarters;
protection issues; and serves as the (d) Conducting effective Regional en-
focus of internal EPA policy coordina- forcement and compliance programs;
tion for ground-water. (e) Translating technical program di-
(f) Office of Marine and Estuarine Pro- rection and evaluation provided by the
tection. The Office of Marine and Estua- various Assistant Administrators, As-
rine Protection, under the supervision sociate Administrators and Heads of
of a Director, is responsible for the de- Headquarters Staff Offices, into effec-
velopment of policies and strategies tive operating programs at the Re-
and implementation of a program to gional level, and assuring that such
protect the marine/estuarine environ- programs are executed efficiently;
ment, including ocean dumping. The (f) Exercising approval authority for
Office provides national direction for proposed State standards and imple-
the Chesapeake Bay and other estua- mentation plans; and
rine programs, and policy oversight of (g) Providing for overall and specific
the Great Lakes Program. evaluations of Regional programs, both
(g) Office of Wetlands Protection. The internal Agency and State activities.
Office of Wetlands Protection, under
the supervision of a Director, admin-
isters the 404/Wetlands Program and
PART 2—PUBLIC INFORMATION
develops policies, procedures, regula-
tions, and strategies addressing the Subpart A—Requests for Information
maintenance, enhancement, and pro- Sec.
tection of the Nations Wetlands. The 2.100 Definitions.
Office coordinates Agency issues re- 2.101 Policy on disclosure of EPA records.
lated to wetlands. 2.102 [Reserved]
2.103 Partial disclosure of records.
FR 30360, Aug. 14, 1987] 2.104 Requests to which this subpart ap-
plies.
2.105 Existing records.
Subpart C—Field Installations 2.106 Where requests for agency records
shall be filed.
§ 1.61 Regional Offices. 2.107 Misdirected written requests; oral re-
Regional Administrators are respon- quests.
sible to the Administrator, within the 2.108 Form of request.
2.109 Requests which do not reasonably de-
boundaries of their Regions, for the
scribe records sought.
execution of the Regional Programs of
2.110 Responsibilities of Freedom of Infor-
the Agency and such other responsibil- mation Officers.
ities as may be assigned. They serve as 2.111 Action by office responsible for re-
the Administrator’s prinicipal rep- sponding to request.
resentatives in their Regions in con- 2.112 Time allowed for issuance of initial
tacts and relationships with Federal, determination.
State, interstate and local agencies, in- 2.113 Initial denials of requests.
dustry, academic institutions, and 2.114 Appeals from initial denials; manner
other public and private groups. Re- of making.
gional Administrators are responsible 2.115 Appeal determinations; by whom
for: made.
2.116 Contents of determination denying ap-
(a) Accomplishing national program
peal.
objectives within the Regions as estab- 2.117 Time allowed for issuance of appeal
lished by the Administrator, Deputy determination.
Administrator, Assistant Administra- 2.118 Exemption categories.
tors, Associate Administrators, and 2.119 Discretionary release of exempt docu-
Heads of Headquarters Staff Offices; ments.
(b) Developing, proposing, and imple- 2.120 Fees; payment; waiver.
menting approved Regional programs 2.121 Exclusions.
23
§ 2.100 40 CFR Ch. I (7–1–00 Edition)
Subpart B—Confidentiality of Business tion, and Liability Act of 1980, as amend-

Information ed.
2.311 Special rules governing certain infor-
2.201 Definitions. mation obtained under the Motor Vehicle
2.202 Applicability of subpart; priority Information and Cost Savings Act.
where provisions conflict; records con-
taining more than one kind of informa- Subpart C—Testimony by Employees and
tion. Production of Documents in Civil Legal
2.203 Notice to be included in EPA requests, Proceedings Where the United States Is
demands, and forms; method of asserting Not a Party
business confidentiality claim; effect of
failure to assert claim at time of submis- 2.401 Scope and purpose.
sion. 2.402 Policy on presentation of testimony
2.204 Initial action by EPA office. and production of documents.
2.205 Final confidentiality determination 2.403 Procedures when voluntary testimony
by EPA legal office. is requested.
2.206 Advance confidentiality determina- 2.404 Procedures when an employee is sub-
tions. poenaed.
2.207 Class determinations. 2.405 Subpoenas duces tecum.
2.208 Substantive criteria for use in con- 2.406 Requests for authenticated copies of
fidentiality determinations. EPA documents.
2.209 Disclosure in special circumstances.
2.210 Nondisclosure for reasons other than AUTHORITY: 5 U.S.C. 301, 552 (as amended),
business confidentiality or where disclo- 553; secs. 114, 205, 208, 301, and 307, Clean Air
sure is prohibited by other statute. Act, as amended (42 U.S.C. 7414, 7525, 7542,
2.211 Safeguarding of business information; 7601, 7607); secs. 308, 501 and 509(a), Clean
penalty for wrongful disclosure. Water Act, as amended (33 U.S.C. 1318, 1361,
2.212 Establishment of control offices for 1369(a)); sec. 13, Noise Control Act of 1972 (42
categories of business information. U.S.C. 4912); secs. 1445 and 1450, Safe Drink-
2.213 Designation by business of addressee ing Water Act (42 U.S.C. 300j–4, 300j–9); secs.
for notices and inquiries. 2002, 3007, and 9005, Solid Waste Disposal Act,
2.214 Defense of Freedom of Information as amended (42 U.S.C. 6912, 6927, 6995); secs.
Act suits; participation by affected busi- 8(c), 11, and 14, Toxic Substances Control Act
ness. (15 U.S.C. 2607(c), 2610, 2613); secs. 10, 12, and
2.215 Confidentiality agreements. 25, Federal Insecticide, Fungicide, and
2.216–2.300 [Reserved] Rodenticide Act, as amended (7 U.S.C. 136h,
2.301 Special rules governing certain infor- 136j, 136w); sec. 408(f), Federal Food, Drug
mation obtained under the Clean Air and Cosmetic Act, as amended (21 U.S.C.
Act. 346(f)); secs. 104(f) and 108, Marine Protection
2.302 Special rules governing certain infor- Research and Sanctuaries Act of 1972 (33
mation obtained under the Clean Water U.S.C. 1414(f), 1418); secs. 104 and 115, Com-
Act. prehensive Environmental Response, Com-
2.303 Special rules governing certain infor- pensation, and Liability Act of 1980, as
mation obtained under the Noise Control amended (42 U.S.C. 9604 and 9615); sec. 505,
Act of 1972. Motor Vehicle Information and Cost Savings
2.304 Special rules governing certain infor- Act, as amended (15 U.S.C. 2005).
mation obtained under the Safe Drinking SOURCE: 41 FR 36902, Sept. 1, 1976, unless
Water Act. otherwise noted.
mation obtained under the Solid Waste
Disposal Act, as amended. Subpart A—Requests for
2.306 Special rules governing certain infor- Information
mation obtained under the Toxic Sub-
stances Control Act. § 2.100 Definitions.
mation obtained under the Federal Insec- For the purposes of this part:
ticide, Fungicide and Rodenticide Act. (a) EPA means the United States En-
2.308 Special rules governing certain infor- vironmental Protection Agency.
mation obtained under the Federal Food, (b) EPA Record or, simply record
Drug and Cosmetic Act. means any document, writing, photo-
2.309 Special rules governing certain infor- graph, sound or magnetic recording,
mation obtained under the Marine Pro-
drawing, or other similar thing by
tection, Research and Sanctuaries Act of
1972. which information has been preserved,
2.310 Special rules governing certain infor- from which the information can be re-
mation obtained under the Comprehen- trieved and copied, and over which
sive Environmental Response, Compensa- EPA has possession or control. It may
24
include copies of the records of other higher education, an institution or pro-

Federal agencies (see § 2.111(d)). The fessional education, and an institution
term includes informal writings (such of vocational education, which oper-
as drafts and the like), and also in- ates a program or programs of schol-
cludes information preserved in a form arly research.
which must be translated or deciphered (h) The term representative of the news
by machine in order to be intelligible media refers to any person actively
to humans. The term includes docu- gathering news for an entity that is or-
ments and the like which were created ganized and operated to publish or
or acquired by EPA, its predecessors, broadcast news to the public. The term
its officers, and its employees by use of news means information that is about
Government funds or in the course of current events or that would be of cur-
transacting official business. However, rent interest to the public. Examples of
the term does not include materials news media entities include television
which are the personal records of an or radio stations broadcasting to the
EPA officer or employee. Nor does the public at large, and publishers of peri-
term include materials published by odicals (but only in those instances
non-Federal organizations which are when they can qualify as disseminators
readily available to the public, such as
of news) who make their products
books, journals, and periodicals avail-
available for purchase or subscription
able through reference libraries, even if
by the general public. These examples
such materials are in EPA’s possession.
are not intended to be all-inclusive.
(c) Request means a request to inspect
Moreover, as traditional methods of
or obtain a copy of one or more
news delivery evolve (e.g., electronic
records.
dissemination of newspapers through
(d) Requestor means any person who
has submitted a request to EPA. telecommunications services), such al-
(e) The term commercial use request re- ternative media would be included in
fers to a request from or on behalf of this category. In the case of freelance
one who seeks information for a use or journalists, they may be regarded as
purpose that furthers the commercial, working for a news organization if they
trade or profit interests of the re- can demonstrate a solid basis for ex-
questor or the person on whose behalf pecting publication through that orga-
the request is made. In determining nization, even though not actually em-
whether a requestor properly belongs ployed by it. A publication contract
in this category, EPA must determine would be the clearest proof, but EPA
the use to which a requestor will put may also look to the past publication
the documents requested. Moreover, record of a requestor in making this
where EPA has reasonable cause to determination.
doubt the use to which a requestor will (i) The term search includes all time
put the records sought, or where that spent looking for material that is re-
use is not clear from the request itself, sponsive to a request, including page-
EPA may seek additional clarification by-page or line-by-line identification of
before assigning the request to a spe- material within documents. Searching
cific category. for material must be done in the most
(f) The term non-commercial scientific efficient and least expensive manner so
institution refers to an institution that as to minimize costs for both the EPA
is not operated on a commercial basis as and the requestor. For example, EPA
that term is referenced in paragraph (e) will not engage in line-by-line search
of this section, and which is operated when merely duplicating an entire doc-
solely for the purpose of conducting ument would prove the less expensive
scientific research the results of which and quicker method of complying with
are not intended to promote any par- a request. Search will be distinguished,
ticular product or industry. moreover, from review of material in
(g) The term educational institution order to determine whether the mate-
refers to a preschool, a public or pri- rial is exempt from disclosure (see
vate elementary or secondary school, paragraph (j) of this section). Searches
an institution of graduate higher edu- may be done manually or by computer
cation, an institution of undergraduate using existing programming.
25
§ 2.101 40 CFR Ch. I (7–1–00 Edition)
(j) The term review refers to the proc- requester of the steps necessary to ob-
ess of examining documents located in tain records from the sources.
response to a request that is for a com- [41 FR 36902, Sept. 1, 1976, as amended at 53
mercial use (see paragraph (e) of this FR 216, Jan. 5, 1988]
section) to determine whether any por-
tion of any document located is per- § 2.102 [Reserved]
mitted to be withheld. It also includes
processing any documents for disclo- § 2.103 Partial disclosure of records.
sure, e.g., doing all that is necessary to If a requested record contains both
excise them and otherwise prepare exempt and nonexempt material, the
them for release. Review does not in- nonexempt material shall be disclosed,
clude time spent resolving legal or pol- after the exempt material has been de-
icy issues regarding the application of leted in accordance with § 2.119.
exemptions. (Documents must be re-
viewed in responding to all requests; § 2.104 Requests to which this subpart
however, review time may only be applies.
charged to Commercial Use Request- (a) This subpart applies to any writ-
ers.) ten request (other than a request made
(k) The term duplication refers to the by another Federal agency) received by
process of making a copy of a docu- any EPA office, whether or not the re-
ment necessary to respond to an FOIA quest cites the Freedom of Information
request. Such copies can take the form Act, 5 U.S.C. 552. See §§ 2.107(a) and
of paper copy, microform, audio-visual 2.112(b) regarding the treatment of re-
materials, or machine readable docu- quests which are directed by the re-
mentation (e.g., magnetic tape or questor to offices other than those list-
disk), among others. The copy provided ed in § 2.106.
must be in a form that is reasonably (b) Any written request to EPA for
usable by requesters. existing records prepared by EPA for
[41 FR 36902, Sept. 1, 1976, as amended at 50 routine public distribution, e.g., pam-
FR 51658, Dec. 18, 1985; 53 FR 216, Jan. 5, 1988] phlets, copies of speeches, press re-
leases, and educational materials, shall
§ 2.101 Policy on disclosure of EPA be honored. No individual determina-
records. tion under § 2.111 is necessary in such
(a) EPA will make the fullest pos- cases, since preparation of the records
sible disclosure of records to the pub- for routine public distribution itself
lic, consistent with the rights of indi- constitutes a determination that the
viduals to privacy, the rights of per- records are available to the public.
sons in business information entitled
to confidential treatment, and the need § 2.105 Existing records.
for EPA to promote frank internal pol- (a) The Freedom of Information Act,
icy deliberations and to pursue its offi- 5 U.S.C. 552, does not require the cre-
cial activities without undue disrup- ation of new records in response to a
tion. request, nor does it require EPA to
(b) All EPA records shall be available place a requestor’s name on a distribu-
to the public unless they are exempt tion list for automatic receipt of cer-
from the disclosure requirements of 5 tain kinds of records as they come into
U.S.C 552. existence. The Act establishes require-
(c) All nonexempt EPA records shall ments for disclosure of existing rec-
be available to the public upon request ords.
regardless of whether any justification (b) All existing EPA records are sub-
or need for such records has been ject to routine destruction according
shown by the requestor. to standard record retention schedules.
(d) When documents responsive to a
request are maintained for distribution § 2.106 Where requests for agency
by agencies operating statutory-based records shall be filed.
fee schedule programs, such as, but not (a) A request for records may be filed
limited to, the Government Printing with the EPA Freedom of Information
Office or the National Technical Infor- Officer, A–101, 401 M Street, SW., Wash-
mation Service, EPA will inform the ington, DC 20460.
26
(b) Should the requestor have reason Guam, Trust Territory of Pacific Is-
to believe that the records sought may lands):
be located in an EPA regional office, he U.S. Environmental Protection Agency,
may transmit his request to the appro- Freedom of Information Officer, 215 Fre-
priate regional Freedom of Information mont Street, San Francisco, CA 94105.
Office indicated below:
(1) Region I (Massachusetts, Con- (10) Region X (Alaska, Idaho, Oregon,
necticut, Maine, New Hampshire, Washington):
Rhode Island, Vermont): U.S. Environmental Protection Agency,
Freedom of Information Officer, 1200 Sixth
U.S. Environmental Protection Agency, Avenue, Seattle, WA 98101.
Freedom of Information Officer, Room
2303, John F. Kennedy Federal Building, [41 FR 36902, Sept. 1, 1976, as amended at 50
Boston, MA 02203. FR 51659, Dec. 18, 1985; 62 FR 1833, Jan. 14,
1997]
(2) Region II (New Jersey, New York,
Puerto Rico, Virgin Islands): § 2.107 Misdirected written requests;
oral requests.
U.S. Environmental Protection Agency,
Freedom of Information Officer, Room (a) EPA cannot assure that a timely
1005, 26 Federal Plaza, New York, NY 10007. or satisfactory response under this sub-
(3) Region III (Delaware, Maryland, part will be given to written requests
Pennsylvania, Virginia, West Virginia, that are addressed to EPA offices, offi-
cers, or employees other than the Free-
District of Columbia):
dom of Information Officers listed in
U.S. Environmental Protection Agency, § 2.106. Any EPA officer or employee
Freedom of Information Officer, 841 Chest- who receives a written request for in-
nut Street, Philadelphia, PA 19107. spection or disclosure of EPA records
(4) Region IV (Alabama, Florida, shall promptly forward a copy of the
Georgia, Kentucky, Mississippi, North request to the appropriate Freedom of
Carolina, South Carolina, Tennessee): Information Officer, by the fastest
practicable means, and shall, if appro-
priate, commence action under § 2.111.
Freedom of Information Officer, 345
Courtland Street, NE., Atlanta, GA 30365. For purposes of § 2.112, the time allowed
with respect to initial determinations
(5) Region V (Illinois, Indiana, Michi- shall be computed from the day on
gan, Minnesota, Ohio, Wisconsin): which the appropriate Freedom of In-
U.S. Environmental Protection Agency, formation Officer receives the request.
Freedom of Information Officer, 77 West (b) While EPA officers and employees
Jackson Boulevard, Chicago, IL 60604. will attempt in good faith to comply
with requests for inspection or disclo-
(6) Region VI (Arkansas, Louisiana,
sure of EPA records made orally, by
New Mexico, Oklahoma, Texas):
telephone or otherwise, such oral re-
U.S. Environmental Protection Agency, quests are not required to be processed
Freedom of Information Officer (6M–MC), in accordance with this subpart.
1201 Elm Street, Dallas, TX 75270.
[41 FR 36902, Sept. 1, 1976, as amended at 50
(7) Region VII (Iowa, Kansas, Mis- FR 51659, Dec. 18, 1985]
souri, Nebraska):
§ 2.108 Form of request.
Freedom of Information Officer, 726 Min- A request shall be made in writing,
nesota Avenue, Kansas City, KS 66101. shall reasonably describe the records
(8) Region VIII (Colorado, Montana, sought in a way that will permit their
North Dakota, South Dakota, Utah, identification and location, and should
Wyoming): be addressed to one of the addresses set
forth in § 2.106, but otherwise need not
U.S. Environmental Protection Agency, be in any particular form.
Freedom of Information Officer, One Den-
ver Place, 999 18th Street, Suite 1300, Den- § 2.109 Requests which do not reason-
ver, CO 80202–2413. ably describe records sought.
(9) Region IX (Arizona, California, (a) If the description of the records
Hawaii, Nevada, American Samoa, sought in the request is not sufficient
27
§ 2.110 40 CFR Ch. I (7–1–00 Edition)
to allow EPA to identify and locate the appeal determinations, and other perti-
requested records, the EPA office tak- nent correspondence and records.
ing action under § 2.111 will notify the (c) The Freedom of Information offi-
requestor (by telephone when prac- cer shall collect and maintain the in-
ticable) that the request cannot be fur- formation necessary to compile the re-
ther processed until additional infor- ports required by 5 U.S.C. 552(d).
mation is furnished.
(b) EPA will make every reasonable § 2.111 Action by office responsible for
effort to assist in the identification responding to request.
and description of records sought and (a) Whenever an EPA office becomes
to assist the requestor in formulating aware that it is responsible for re-
his request. If a request is described in sponding to a request, the office shall:
general terms (e.g., all records having (1) Take action under § 2.109, if re-
to do with a certain area), the EPA of- quired, to obtain a better description of
fice taking action under § 2.111 may the records requested;
communicate with the requestor (by (2) Locate the records as promptly as
telephone when practicable) with a possible, or determine that the records
view toward reducing the administra- are not known to exist, or that they
tive burden of processing a broad re- are located at another EPA office, or
quest and minimizing the fees payable that they are located at another Fed-
by the requestor. Such attempts will eral agency and not possessed by EPA;
not be used as a means to discourage (3) When appropriate, take action
requests, but rather as a means to help under § 2.120(c) to obtain payment or
identify with more specificity the assurance of payment;
records actually sought. (4) If any located records contain
business information, as defined in
§ 2.110 Responsibilities of Freedom of § 2.201(c), comply with subpart B of this
Information Officers.
part;
(a) Upon receipt of a written request, (5) Determine which of the requested
the Freedom of information Officer records legally must be withheld, and
(whether at EPA Headquarters or at an why (see § 2.119(b));
EPA region) shall mark the request (6) Of the requested records which are
with the date of receipt, and shall at- exempt from mandatory disclosure but
tach to the request a control slip indi- which legally may be disclosed (see
cating the date of receipt, the date by § 2.119(a)), determine which records will
which response is due, a unique Re- be withheld, and why;
quest Identification Number, and other (7) Issue all initial determination
pertinent administrative information. within the allowed period (see § 2.112),
The request and control slip shall then specifying (individually or by category)
be forwarded immediately to the EPA which records will be disclosed and
office believed to be responsible for which will be withheld, and signed by a
maintaining the records requested. (If person authorized to issue the deter-
the records requested are believed to be mination under § 2.113(b). Denials of re-
located at two or more EPA offices, quests shall comply with § 2.113; and
each such office shall be furnished a (8) Furnish the appropriate Freedom
copy of the request and control slip, of Information Officer a copy of the de-
with instructions concerning which of- termination. If the determination de-
fice shall serve as the lead office for co- nied a request for one or more existing,
ordinating the response.) The Freedom located records, the responding office
of Information Officer shall retain a shall also furnish the Freedom of Infor-
file copy of the request and control mation officer the name, address, and
slip, and shall monitor the handling of telephone number of the EPA em-
the request to ensure a timely re- ployee(s) having custody of the records,
sponse. and shall maintain the records in a
(b) The Freedom of Information Offi- manner permitting their prompt for-
cer shall maintain a file concerning warding to the General Counsel upon
each request received, which shall con- request if an appeal from the initial de-
tain a copy of the request, initial and nial is filed. See also § 2.204(f).
28
(b) If it appears that some or all of (c) There shall be excluded from the
the requested records are not in the period of 10 working days (or any ex-
possession of the EPA office which has tension thereof) any time which
been assigned responsibility for re- elapses between the date that a re-
sponding to the request but may be in questor is notified by EPA under § 2.109
the possession of some other EPA of- that his request does not reasonably
fice, the Freedom of Information offi- identify the records sought, and the
cer who is monitoring the request shall date that the requestor furnishes a rea-
be so informed immediately. sonable identification.
(c) In determining which records are (d) There shall be excluded from the
responsive to a request, the EPA office period of 10 working days (or any ex-
responding shall ordinarily include tension thereof) any time which
those records within the Agency’s pos- elapses between the date that a re-
session as of the date of the Agency’s questor is notified by EPA under § 2.120
receipt of the request. that prepayment or assurance of pay-
(d) When a request for EPA records ment of fees is required, and the date
encompasses records of another Fed- that the requestor pays (or makes suit-
eral agency, the EPA office shall ei- able arrangements to pay) such
ther: (1) Respond to the request after charges.
consulting with the originating agency (e) The EPA office taking action
when appropriate or; (2) promptly
under § 2.111, after notifying the appro-
transfer responsibility for responding
priate Freedom of Information Office,
to the request to the originating agen-
may extend the basic 10-day period es-
cy provided that the other agency is
subject to the FOIA. Whenever the tablished under subsection (a) of this
EPA office refers a request to another section by a period not to exceed 10 ad-
agency, it shall notify the requestor of ditional working days, by furnishing
the referral. written notice to the requestor within
the basic 10-day period stating the rea-
[41 FR 36902, Sept. 1, 1976, as amended at 50 sons for such extension and the date by
FR 51659, Dec. 18, 1985] which the office expects to be able to
issue a determination. The period may
§ 2.112 Time allowed for issuance of
initial determination. be so extended only when absolutely
necessary, only for the period required,
(a) Except as otherwise provided in and only when one or more of the fol-
this section, not later than the tenth lowing unusual circumstances require
working day after the date of receipt the extension:
by a Freedom of Information Office of
(1) There is a need to search for and
a request for records, the EPA office
collect the requested records from field
responsible for responding to the re-
facilities or other establishments that
quest shall issue a written determina-
are separate from the office processing
tion to the requestor stating which of
the request:
the requested records will, and which
will not, be released and the reason for (2) There is a need to search for, col-
any denial of a request. If the records lect, and appropriately examine a volu-
are not known to exist or are not in minous amount of separate and dis-
EPA’s possession, the EPA office shall tinct records which are demanded in a
so inform the requestor. To the extent single request; or
requested records which are in EPA’s (3) There is a need for consultation,
possession are published by the Federal which shall be conducted with all prac-
Government, the response may inform ticable speed, with another agency hav-
the requestor that the records are ing a substantial interest in the deter-
available for inspection and where cop- mination of the request or among two
ies can be obtained. or more components of EPA.
(b) The period of 10 working days (f) Failure of EPA to issue a deter-
shall be measured from the date the re- mination within the 10-day period or
quest is first received and logged in by any authorized extension shall con-
the Headquarters or regional Freedom stitute final agency action which au-
of Information Office. thorizes the requestor to commence an
29
§ 2.113 40 CFR Ch. I (7–1–00 Edition)
action in an appropriate Federal dis- state that the request is denied because
trict court to obtain the records. either the records do not exist or they
are exempt from mandatory disclosure
FR 51659, Dec. 18, 1985] under the applicable provision of 5
U.S.C. 552(b). No such determination
§ 2.113 Initial denials of requests. shall be made without the concurrence
(a) An initial denial of a request may of the General Counsel or his designee.
be issued only for the following rea- The General Counsel has designated
sons: the Contracts and Information Law
(1) A statutory provision, provision Branch to act on these requests for
of this part, or court order requires concurrence. See § 2.121 for guidance on
that the information not be disclosed; initial determinations denying, in lim-
(2) The record is exempt from manda- ited circumstances, the existence of
tory disclosure under 5 U.S.C. 552(b) certain law enforcement records or in-
and EPA has decided that the public formation.
interest would not be served by disclo- (e) If the decision to deny a request is
sure; or made by an authorized EPA employee
(3) Section 2.204(d)(1) requires initial other than the person signing the de-
denial because a third person must be termination letter, that other person’s
consulted in connection with a busi- identity and position shall be stated in
ness confidentiality claim. the determination letter.
(b) The Deputy Administrator, As- (f) Each initial determination which
sistant Administrators, Regional Ad- denies, in whole or in part, a request
ministrators, the General Counsel, the for one or more existing, located EPA
Inspector General, Associate Adminis- records (including determinations de-
trators, and heads of headquarters staff scribed in § 2.113(d)(2) of this section)
offices are delegated the authority to shall state that the requester may ap-
issue initial determinations This au- peal the initial denial by sending a
thority may be redelegated; Provided, written appeal to the address shown in
That the authority to issue initial de- § 2.106(a) within 30 days after receipt of
nials of requests for existing, located the determination. An initial deter-
records (other than denials based solely mination which only denies the exist-
on § 2.204(d)(1)) may be redelegated only ence of records, however, will not in-
to persons occupying positions not clude a notice of appeal rights.
lower than division director or equiva- (g) A determination shall be deemed
lent. issued on the date the determination
(c) [Reserved] letter is placed in EPA mailing chan-
(d)(1) Each initial determination to nels for first class mailing to the re-
deny a request shall be written, signed, questor, delivered to the U.S. Postal
and dated, and, except as provided in Service for mailing, or personally de-
paragraph (d)(2), shall contain a ref- livered to the requestor, whichever
erence to the Request Identification date first occurs.
Number, shall identify the records that [41 FR 36902, Sept. 1, 1976, as amended at 50
are being withheld (individually, or, if FR 51659, Dec. 18, 1985; 53 FR 216, Jan. 5, 1988]
the denial covers a large number of
similar records, by described category), § 2.114 Appeals from initial denials;
and shall state the basis for denial for manner of making.
each record or category of records (a) Any person whose request for one
being withheld. or more existing, located EPA records
(2) No initial determination shall re- has been denied in whole or in part by
veal the existence or nonexistence of an initial determination may appeal
records if identifying the mere fact of that denial by addressing a written ap-
the existence or nonexistence of those peal to the address shown in § 2.106(a).
records would reveal confidential busi- (b) An appeal should be mailed no
ness information, confidential personal later than 30 calendar days after the
information or classified national secu- date the requestor received the initial
rity information. Instead of identifying determination on the request. An un-
the existence or nonexistence of the timely appeal may be treated either as
records, the initial determination shall a timely appeal or as a new request, at
30
the option of the Freedom of Informa- minations by the Office of Inspector

tion Officer. General to deny requests.
(c) The appeal letter shall contain a (c) The General Counsel may dele-
reference to the Request Identification gate his authority under paragraph (a)
Number (RIN), the date of the initial of this section to a Regional Counsel,
determination, and the name and ad- or to any other attorney employed on a
dress of the person who issued the ini- full-time basis by EPA, in connection
tial denial. The appeal letter shall also with any category of appeals or any in-
indicate which of the records to which dividual appeal.
access was denied are the subjects of (d) The Assistant Administrator for
the appeal.
External Affairs may delegate the au-
[41 FR 36902, Sept. 1, 1976, as amended at 50 thority under paragraph (b) of this sec-
FR 51659, Dec. 18, 1985] tion to the Deputy Assistant Adminis-
trator for External Affairs.
§ 2.115 Appeal determinations; by
whom made. [41 FR 36902, Sept. 1, 1976, as amended at 50
(a) The General Counsel shall make FR 51659, Dec. 18, 1985]
one of the following legal determina-
tions in connection with every appeal § 2.116 Contents of determination de-
nying appeal.
from the initial denial of a request for
an existing, located record: (a) Except as provided in paragraph
(1) The record must be disclosed; (b) of this section, each determination
(2) The record must not be disclosed, denying an appeal from an initial de-
because a statute or a provision of this nial shall be in writing, shall state
part so requires; or which of the exemptions in 5 U.S.C.
(3) The record is exempt from manda- 552(b) apply to each requested existing
tory disclosure but legally may be dis- record, and shall state the reason(s) for
closed as a matter of Agency discre- denial of the appeal. A denial deter-
tion. mination shall also state the name and
(b) Whenever the General Counsel has position of each EPA officer or em-
determined under paragraph (a)(3) of ployee who directed that the appeal be
this section that a record is exempt denied. Such a determination shall fur-
from mandatory disclosure but legally ther state that the person whose re-
may be disclosed, and the record has quest was denied may obtain de novo
not been disclosed by EPA under 5 judicial review of the denial by com-
U.S.C. 552, the matter shall be referred plaint filed with the district court of
to the Assistant Administrator for Ex- the United States in the district in
ternal Affairs. If the Assistant which the complainant resides, or has
Administant Administrator determines his principal place of business, or in
that the public interest would not be which the Agency records are situated,
served by disclosure, a determination or in the District of Columbia, pursu-
denying the appeal shall be issued by ant to 5 U.S.C. 552(a)(4).
the General Counsel. If the Assistant (b) No determination denying an ap-
Administrator determines that the peal shall reveal the existence or non-
public interest would be served by dis- existence of records if identifying the
closure, the record shall be disclosed mere fact of the existence or nonexist-
unless the Administrator (upon a re- ence of those records would reveal con-
view of the matter requested by the ap- fidential business information, con-
propriate Assistant Administrator, As- fidential personal information or clas-
sociate Administrator, Regional Ad- sified national security information.
ministrator, the General Counsel, or Instead of identifying the existence or
the head of a headquarters staff office) nonexistence of the records, the deter-
determines that the public interest mination shall state that the appeal is
would not be served by disclosure, in denied because either the records do
which case the General Counsel shall
not exist or they are exempt from man-
issue a determination denying the ap-
datory disclosure under the applicable
peal. This review by the Assistant Ad-
provision of 5 U.S.C. 552(b).
ministrator for External Affairs shall
not apply to appeals from initial deter- [53 FR 217, Jan. 5, 1988]
31
§ 2.117 40 CFR Ch. I (7–1–00 Edition)
§ 2.117 Time allowed for issuance of § 2.118 Exemption categories.

appeal determination. (a) 5 U.S.C. 552(b) establishes nine ex-
(a) Except as otherwise provided in clusive categories of matters which are
this section, not later than the twen- exempt from the mandatory disclosure
tieth working day after the date of re- requirements of 5 U.S.C. 552(a). No re-
ceipt by the Freedom of Information quest under 5 U.S.C. 552 for an existing,
Officer at EPA Headquarters of an ap- located record in EPA’s possession
peal from an initial denial of a request shall be denied by any EPA office or
for records, the General Counsel shall employee unless the record contains
issue a written determination stating (or its disclosure would reveal) matters
which of the requested records (as to that are—
which an appeal was made) shall be dis- (1) Specifically authorized under cri-
closed and which shall not be disclosed. teria established by an Executive Order
(b) The period of 20 working days to be kept secret in the interest of na-
shall be measured from the date an ap- tional defense or foreign policy and are
peal is first received by the Freedom of in fact properly classified pursuant to
Information Officer at EPA Head- such Executive Order;
quarters, except as otherwise provided (2) Related solely to the internal per-
in § 2.205(a). sonnel rules and practices of an agen-
(c) The Office of General Counsel, cy;
after notifying the Freedom of Infor- (3) Specifically exempted from disclo-
mation Officer at EPA Headquarters, sure by statute (other than 5 U.S.C.
may extend the basic 20-day period es- 552(b)): Provided, That such statute:
tablished under subsection (a) of this (i) Requires that the matters be with-
section by a period not to exceed 10 ad- held from the public in such a manner
ditional working days, by furnishing as to leave no discretion on the issue,
written notice to the requestor within or
(ii) Establishes particular criteria for
the basic 20-day period stating the rea-
withholding or refers to particular
sons for such extension and the date by
types of matters to be withheld;
which the office expects to be able to
(4) Trade secrets and commercial or
issue a determination. The period may
financial information obtained from a
be so extended only when absolutely
person and privileged or confidential
necessary, only for the period required,
(see subpart B);
and only when one or more of the fol-
(5) Interagency or intra-agency mem-
lowing unusual circumstances require
orandums or letters which would not
the extension:
be available by law to a party other
(1) There is a need to search for and than an agency in litigation with the
collect the records from field facilities agency;
or other establishments that are sepa- (6) Personnel and medical files and
rate from the office processing the ap- similar files the disclosure of which
peal; would constitute a clearly unwarranted
(2) There is a need to search for, col- invasion of personal privacy;
lect, and appropriately examine a volu- (7)(i) Records or information com-
minous amount of separate and dis- piled for law enforcement purposes, but
tinct records which are demanded in a only to the extent that the production
single request; or of such law enforcement records or in-
(3) There is a need for consultation, formation:
which shall be conducted with all prac- (A) Could reasonably be expected to
ticable speed, with another agency hav- interfere with enforcement pro-
ing a substantial interest in the deter- ceedings;
mination of the request or among two (B) Would deprive a person of a right
or more components of EPA. to a fair trial or an impartial adjudica-
(d) No extension of the 20-day period tion;
shall be issued under subsection (c) of (C) Could reasonably be expected to
this section which would cause the constitute an unwarranted invasion of
total of all such extensions and of any personal privacy;
extensions issued under § 2.112(e) to ex- (D) Could reasonably be expected to
ceed 10 working days. disclose the identity of a confidential
32
source, including a State, local, or for- tions with the approval of the Office of
eign agency or authority or any pri- General Counsel or a Regional Counsel.
vate institution which furnished infor-
mation on a confidential basis, and, in § 2.120 Fees; payment; waiver.
the case of a record or information (a) Fee schedule. Requesters shall be
compiled by a criminal law enforce- charged the full allowable direct costs
ment authority in the course of a incurred by the Agency in responding
criminal investigation, or by an agency to a FOIA request. However, if EPA
conducting a lawful national security uses a contractor to search for, repro-
intelligence investigation, information duce or disseminate records responsive
furnished by a confidential source; to a request, the cost to the requester
(E) Would disclose techniques and shall not exceed the cost of the Agency
procedures for law enforcement inves- itself performing the service.
tigations or prosecutions, or would dis- (1) There are four categories of re-
close guidelines for law enforcement quests. Fees for each of the categories
investigations or prosecutions if such will be charged as follows:
disclosure could reasonably be ex- (i) Commercial use requests. If the
pected to risk circumvention of the request seeks disclosure of records for
law; or a commercial use, the requester shall
(F) Could reasonably be expected to be charged for the time spent searching
endanger the life or physical safety of for the requested record, reviewing the
any individual. record to determine whether it should
(ii) [Reserved] be disclosed and for the cost of each
(8) Contained in or related to exam- page of duplication. Commercial use
ination, operating, or condition reports requesters should note that EPA also
prepared by, on behalf of, or for the use may charge fees to them for time spent
of an agency responsible for the regula- searching for and/or reviewing records,
tion or supervision of finanical institu- even if EPA fails to locate the records
tions; or or if the records located are deter-
(9) Geological and geophysical infor- mined to be exempt from disclosure.
mation and data, including maps, con- (ii) Requests from an educational or
cerning wells. non-commercial scientific institution
(b) The fact that the applicability of whose purpose is scholarly or scientific
an exemption permits the withholding research, involving a request which is
of a requested record (or portion there- not for a commercial use and seeks dis-
of) does not necessarily mean that the closure of records. In the case of such a
record must or should be withheld. See request, the requester shall be charged
§ 2.119. only for the duplication cost of the
[41 FR 36902, Sept. 1, 1976, as amended at 43 records, except that the first 100 pages
FR 40000, Sept. 8, 1978; 53 FR 217, Jan. 5, 1988] of duplication shall be furnished with-
out charge.
§ 2.119 Discretionary release of exempt (iii) Requests from a representative
documents. of the news media, involving a request
(a) An EPA office may, in its discre- which is not for a commercial use and
tion, release requested records despite seeks disclosure of records. In the case
the applicability of one or more of the of such a request, the requester shall
exemptions listed in § 2.118 (a)(2), (a)(5), be charged only for the duplication
or (a)(7). Disclosure of such records is cost of the records, except that the
encouraged if no important purpose first 100 pages of duplication shall be
would be served by withholding the furnished without charge.
records. (iv) All other requests. If the request
(b) As a matter of policy, EPA will seeks disclosure of records other than
not release a requested record if EPA as described in paragraphs (a)(1)(i), (ii),
has determined that one or more of the and (iii) of this section, the requester
exemptions listed in § 2.118(a) (1), (3), shall be charged the full cost of search
(4), (6), (8), or (9), applies to the record, and duplication. However, the first two
except when ordered to do so by a Fed- hours of search time (or its cost equiv-
eral court or in exceptional cir- alent) and the first 100 pages of dupli-
cumstances under appropriate restric- cation (or their cost equivalent) shall
33
§ 2.120 40 CFR Ch. I (7–1–00 Edition)
be furnished without charge. Request- (iv) Duplication or reproduction of

ers in the ‘‘all other requests’’ category records.
should note that EPA also may charge (A) Duplication or reproduction of
fees to them for time spent searching documents by EPA employees (paper
for records, even if EPA fails to locate copy of paper original): $.15 per page.
the records or if the records located are (B) Computer printouts (other than
determined to be exempt from disclo- those calculated in a direct-cost bill-
sure. ing—see paragraph (a)(3)(ii) of this sec-
(2) The determination of a requester’s tion ‘‘Computer search for records’’)
fee category will be based on the fol- $.15 per page.
lowing: (C) Other methods of duplication or
(i) Commercial use requesters: The reproduction, including, but not lim-
use to which the requester will put the ited to, duplication of photographs,
documents requested; microfilm and magnetic tape, will be
(ii) Educational and non-commercial charged at the actual direct cost to
scientific institution requestors: Iden- EPA.
tity of the requester and the use to (4) Other charges.
which the requestor will put the docu- (i) Other charges incurred in respond-
ments requested; ing to a request including but not lim-
(iii) Representatives of the news ited to, special handling or transpor-
media requesters: The identity of the tation of records, will be charged at the
requester and the use to which the re- actual direct cost to EPA.
questor will put the documents re- (ii) Certification or authentication of
quested. records: $25.00 per certification or au-
(3) Fees will be charged to requesters, thentication.
as appropriate, for search, duplication (5) No charge shall be made—
and review of requested records in ac- (i) For the cost of preparing or re-
cordance with the following schedule: viewing letters of response to a request
(i) Manual search for records. or appeal;
(A) EPA Employees: For each 1⁄2 hour (ii) For time spent resolving legal or
or portion thereof: policy issues concerning the applica-
(1) GS–8 and below: $4.00. tion of exemptions;
(2) GS–9 and above: $10.00. (iii) For search time and the first 100
(B) Contractor employees: The re- pages of duplication for requests de-
questor will be charged for actual scribed in § 2.120(a)(1)(ii) and (iii) of this
charges up to but not exceeding the section;
rate which would have been charged (iv) For the first two hours of search
had EPA employees conducted the time (or its cost equivalent) and for the
search. first 100 pages of duplication for re-
(ii) Computer search for records quests described in § 2.120(a)(1)(iv) of
charges will consist of: this section;
(A) EPA employee operators: For (v) If the total fee in connection with
each 1⁄2 hour or portion thereof: a request is less than $25.00, or if the
(1) GS–8 and below: $4.00. costs of collecting the fee would other-
(2) GS–9 and above: $10.00, plus. wise exceed the amount of the fee.
(B) Contractor operators: Requestors However, when EPA reasonably be-
will be charged for the actual charges lieves that a requester or group of re-
up to but not exceeding the rate which questers is attempting to break a re-
would have been charged had EPA em- quest down into a series of requests for
ployees conducted the search (see para- the purpose of avoiding the assessment
graph (a)(3)(i)(A) of this section), plus. of fees, EPA will aggregate such re-
(C) Actual computer resource usage quests to determine the total fee, and
charges for this search. will charge accordingly;
(iii) Review of records. For each 1⁄2 (vi) For responding to a request by an
hour or portion thereof (EPA employ- individual for one copy of a record re-
ees): trievable by the requesting individual’s
(A) GS–8 and below: $4.00. name or personal identifier from a Pri-
(B) GS–9 and above: $10.00. vacy Act system of records;
34
(vii) For furnishing records requested through administrative offset or re-

by either House of Congress, or by a ferred to private collection agencies.
duly authorized committee or sub- Information related to delinquent ac-
committee of Congress, unless the counts may also be reported to the ap-
records are requested for the benefit of propriate credit agencies.
an individual Member of Congress or (c) Assurance of payment. (1) If an
for a constituent; EPA office estimates that the fees for
(viii) For furnishing records re- processing a request (or aggregated re-
quested by and for the official use of quests as described in § 2.120(a)(5)(vi) of
other Federal agencies; or this section) will exceed $25.00, that of-
(ix) For furnishing records needed by fice need not search for, duplicate or
an EPA contractor, subcontractor, or disclose records in response to the re-
grantee to perform the work required quest(s) until the requester assures
by the EPA contract or grant. payment of the total amount of fees es-
(b) Method of payment. All fee pay- timated to become due under this sec-
ments shall be in the form of a check tion. In such cases, the EPA office will
or money order payable to the ‘‘U.S. promptly inform the requester (by tele-
Environmental Protection Agency’’ phone it practicable) of the need to
and shall be sent (accompanied by a make assurance of payment.
reference to the pertinent Request (2) An EPA office may not require a
Identification Number(s)) to the appro- requester to make an advance pay-
priate Headquarters or Regional Office ment, i.e. payment before work is com-
lock box address: menced or continued on a request, un-
(1) EPA—Washington Headquarters, less:
P.O. Box 360277M, Pittsburgh, PA 15251; (i) A requester has previously failed
(2) EPA—Region 1, P.O. Box 360197M, to pay a fee charged in a timely fashion
Pittsburgh, PA 15251; (i.e., within 30 days after the date of
(3) EPA—Region 2, P.O. Box 360188M, the billing), or
Pittsburgh, PA 15251; (ii) The EPA office estimates or de-
(4) EPA—Region 3, P.O. Box 360515M, termines that the allowable charges
Pittsburgh, PA 15251; that a requester may be required to
(5) EPA—Region 4, P.O. Box 100142, pay are likely to exceed $250.00. Then
Atlanta, GA. 30384; the EPA office will notify the requester
(6) EPA—Region 5, P.O. Box 70753, of the likely cost and obtain satisfac-
Chicago, IL 60673; tory assurance of full payment where
(7) EPA—Region 6, P.O. Box 360582M, the requester has a history of prompt
Pittsburgh, PA 15251; payment of FOIA fees, or require an ad-
(8) EPA—Region 7, P.O. Box 360748M, vance payment of an amount up to the
Pittsburgh, PA 15251; full estimated charges in the case of re-
(9) EPA—Region 8, P.O. Box 360859M, questers with no history of payment. If
Pittsburgh, PA 15251; such advance payment is not received
(10) EPA—Region 9, P.O. Box 360863M, within 30 days after EPA’s billing, the
Pittsburgh, PA 15251; request will not be processed and the
(11) EPA—Region 10, P.O. Box request will be closed. See also
360903M, Pittsburgh, PA 15251; § 2.112(d).
Under the Debt Collection Act of 1982 (d) Reduction or waiver of fee. (1) The
(Pub. L. 97–365), payment (except for fee chargeable under this section shall
prepayment) shall be due within thirty be reduced or waived by EPA if the
(30) calendar days after the date of bill- Agency determines that disclosure of
ing. If payment is not received at the the information:
end of thirty calendar days, interest (i) Is in the public interest because it
and a late payment handling charge is likely to contribute significantly to
will be assessed. In addition, under this public understanding of the operations
Act, a penalty charge will be applied on or activities of the government; and
any principal amount not paid within (ii) Is not primarily in the commer-
ninety (90) calendar days after the due cial interest of the requestor.
date for payment. By the authority of (2) Both of these requirements must
the Debt Collection Act of 1982, delin- be satisfied before fees properly assess-
quent amounts due may be collected able can be waived or reduced.
35
§ 2.120 40 CFR Ch. I (7–1–00 Edition)
(3) The Agency will employ the fol- fications that are relevant to the spe-
lowing four factors in determining cialized use.
whether the first requirement has been (6) A request for reduction or waiver
met: of fees shall be addressed to the appro-
(i) The subject of the request: Wheth- priate Freedom of Information Officer.
er the subject of the requested records The requester shall be informed in
concerns ‘‘the operations or activities writing of the Agency’s decision wheth-
of the government’’; er to grant or deny the fee waiver or
(ii) The informative value of the in- fee reduction request. This decision
formation to be disclosed: Whether the may be appealed by letter addressed to
disclosure is ‘‘likely to contribute to the EPA Freedom of Information Offi-
an understanding of government oper- cer. The General Counsel shall decide
ations or activities’’; such appeals. The General Counsel may
(iii) The contribution to an under- redelegate this authority only to the
standing of the subject by the general Deputy General Counsel or the Asso-
public likely to result from disclosure: ciate General Counsel for Grants, Con-
Whether disclosure of the requested in- tracts and General Law.
formation will contribute to ‘‘public (e) The Financial Management Office
understanding’’; and shall maintain a record of all fees
(iv) The significance of the contribu- charged requesters for searching for,
tion to public understanding: Whether reviewing and reproducing requested
disclosure is likely to contribute ‘‘sig- records under this section. If after the
nificantly’’ to public understanding of end of 60 calendar days from the date
government operations or activities. on which request for payment was
(4) The Agency will employ the fol- made the requester has not submitted
lowing factors in determining whether payment to the appropriate EPA bill-
the second requirement has been met: ing address (as listed in § 2.120(b)), the
(i) The existence and magnitude of a
Financial Management Division shall
commercial interest: Whether the re-
place the requester’s name on a delin-
quester has a commercial interest that
quent list which is sent to the EPA
would be furthered by the requested
Freedom of Information Officer. If a re-
disclosure; and, if so
quester whose name appears on the de-
(ii) The primary interest in disclo-
linquent list makes a request under
sure: Whether the magnitude of the
this part, the EPA Freedom of Infor-
identified commercial interest of the
mation Officer shall inform the re-
requester is sufficiently large, in com-
quester that EPA will not process the
parison with the public interest in dis-
request until the requester submits
closure, that disclosure is ‘‘primarily
payment of the overdue fee from the
in the commercial interest of the re-
earlier request. Any request made by
quester.’’
an individual who specifies an affili-
(5) In all cases, the burden shall be on
ation with or representation of a cor-
the requester to present information in
poration, association, law firm, or
support of a request for a waiver of
other organization shall be deemed to
fees. A request for reduction or waiver
be a request by the corporation, asso-
of fees should include:
ciation, law firm, or other organiza-
(i) A clear statement of the request-
tion. If an organization placed on the
er’s interest in the requested docu-
delinquent list can show that the per-
ments;
son who made the request for which
(ii) The use proposed for the docu-
payment was overdue did not make the
ments and whether the requester will
request on behalf of the organization
derive income or other benefit from
the organization will be removed from
such use;
the delinquent list but the name of the
(iii) A statement of how the public
individual shall remain on the list. A
will benefit from such use and from the
requester shall not be placed on the de-
release of the requested documents;
linquent list if a request for a reduc-
and
tion or for a waiver is pending under
(iv) If specialized use of the docu-
paragraph (d) of this section.
ments or information is contemplated,
a statement of the requester’s quali- [53 FR 217, Jan. 5, 1988]
36
§ 2.121 Exclusions. the benefit of any private shareholder

or individual.
(a) Whenever a request is made which
involves access to records described in (c) Business information (sometimes
§ 2.118(a)(7)(i)(A), and referred to simply as information)
(1) The investigation or proceeding means any information which pertains
involves a possible violation of crimi- to the interests of any business, which
nal law; and was developed or acquired by that busi-
ness, and (except where the context
(2) There is reason to believe that the
subject of the investigation or pro- otherwise requires) which is possessed
ceeding is not aware of its pendency, by EPA in recorded form.
and disclosure of the existence of such (d) Affected business means, with ref-
records could reasonably be expected to erence to an item of business informa-
interfere with enforcement pro- tion, a business which has asserted
ceedings, EPA shall, during only such (and not waived or withdrawn) a busi-
time as the circumstances continue, ness confidentiality claim covering the
treat the records as not subject to the information, or a business which could
requirements of 5 U.S.C. 552 and this be expected to make such a claim if it
subpart. were aware that disclosure of the infor-
(b) Whenever informant records mation to the public was proposed.
maintained by the Agency under an in- (e) Reasons of business confidentiality
formant’s name or personal identifier include the concept of trade secrecy
are requested by a third party accord- and other related legal concepts which
ing to the informant’s name or per- give (or may give) a business the right
sonal identifier and the informant’s to preserve the confidentiality of busi-
status as an informant has not been of- ness information and to limit its use or
ficially confirmed, EPA shall treat the disclosure by others in order that the
records as not subject to the require- business may obtain or retain business
ments of 5 U.S.C. 552 and this subpart. advantages it derives from its rights in
(c) No determination relying on this the information. The definition is
section shall be issued without the con- meant to encompass any concept which
currence of the General Counsel or his authorizes a Federal agency to with-
designee. The General Counsel has des- hold business information under 5
ignated the Contracts and Information U.S.C. 552(b)(4), as well as any concept
Law Branch to act on these requests which requires EPA to withhold infor-
for concurrence. mation from the public for the benefit
(d) An initial determination which of a business under 18 U.S.C. 1905 or
only relies on this section will not in- any of the various statutes cited in
clude notice of appeal rights. § 2.301 through § 2.309.
(f) [Reserved]
[53 FR 219, Jan. 5, 1988]
(g) Information which is available to
the public is information in EPA’s pos-
Subpart B—Confidentiality of session which EPA will furnish to any
Business Information member of the public upon request and
which EPA may make public, release
§ 2.201 Definitions. or otherwise make available to any
For the purposes of this subpart: person whether or not its disclosure
(a) Person means an individual, part- has been requested.
nership, corporation, association, or (h) Business confidentiality claim (or,
other public or private organization or simply, claim) means a claim or allega-
legal entity, including Federal, State tion that business information is enti-
or local governmental bodies and agen- tled to confidential treatment for rea-
cies and their employees. sons of business confidentiality, or a
(b) Business means any person en- request for a determination that such
gaged in a business, trade, employ- information is entitled to such treat-
ment, calling or profession, whether or ment.
not all or any part of the net earnings (i) Voluntarily submitted information
derived from such engagement by such means business information in EPA’s
person inure (or may lawfully inure) to possession—
37
§ 2.202 40 CFR Ch. I (7–1–00 Edition)
(1) The submission of which EPA had of whether information is entitled to

no statutory or contractual authority confidential treatment for reasons of
to require; and business confidentiality.
(2) The submission of which was not (b) Various statutes (other than 5
prescribed by statute or regulation as a U.S.C. 552) under which EPA operates
condition of obtaining some benefit (or contain special provisions concerning
avoiding some disadvantage) under a the entitlement to confidential treat-
regulatory program of general applica- ment of information gathered under
bility, including such regulatory pro- such statutes. Sections 2.301 through
grams as permit, licensing, registra- 2.311 prescribe rules for treatment of
tion, or certification programs, but ex- certain categories of business informa-
cluding programs concerned solely or tion obtained under the various statu-
primarily with the award or adminis- tory provisions. Paragraph (b) of each
tration by EPA of contracts or grants. of those sections should be consulted to
(j) Recorded means written or other- determine whether any of those sec-
wise registered in some form for pre- tions applies to the particular informa-
serving information, including such tion in question.
forms as drawings, photographs, video- (c) The basic rules of §§ 2.201 through
tape, sound recordings, punched cards, 2.215 govern except to the extent that
and computer tape or disk. they are modified or supplanted by the
(k) [Reserved] special rules of §§ 2.301 through 2.311. In
(l) Administrator, Regional Adminis- the event of a conflict between the pro-
trator, General Counsel, Regional Coun- visions of the basic rules and those of a
sel, and Freedom of Information Officer special rule which is applicable to the
mean the EPA officers or employees particular information in question, the
occupying the positions so titled. provision of the special rule shall gov-
(m) EPA office means any organiza- ern.
tional element of EPA, at any level or (d) If two or more of the sections con-
location. (The terms EPA office and taining special rules apply to the par-
EPA legal office are used in this subpart ticular information in question, and
for the sake of brevity and ease of ref- the applicable sections prescribe con-
erence. When this subpart requires that flicting special rules for the treatment
an action be taken by an EPA office or
of the information, the rule which pro-
by an EPA legal office, it is the respon-
vides greater or wider availability to
sibility of the officer or employee in
the public of the information shall gov-
charge of that office to take the action
ern.
or ensure that it is taken.)
(n) EPA legal office means the EPA (e) For most purposes, a document or
General Counsel and any EPA office other record may usefully be treated as
over which the General Counsel exer- a single unit of information, even
cises supervisory authority, including though in fact the document or record
the various Offices of Regional Coun- is comprised of a collection of indi-
sel. (See paragraph (m) of this section.) vidual items of information. However,
(o) A working day is any day on which in applying the provisions of this sub-
Federal Government offices are open part, it will often be necessary to sepa-
for normal business. Saturdays, Sun- rate the individual items of informa-
days, and official Federal holidays are tion into two or more categories, and
not working days; all other days are. to afford different treatment to the in-
formation in each such category. The
§ 2.202 Applicability of subpart; pri- need for differentiation of this type
ority where provisions conflict; may arise, e.g., because a business con-
records containing more than one fidentiality claim covers only a portion
kind of information. of a record, or because only a portion
(a) Sections 2.201 through 2.215 estab- of the record is eligible for confidential
lish basic rules governing business con- treatment. EPA offices taking action
fidentiality claims, the handling by under this subpart must be alert to this
EPA of business information which is problem.
or may be entitled to confidential (f) In taking actions under this sub-
treatment, and determinations by EPA part, EPA offices should consider
38
whether it is possible to obtain the af- which is submitting information to

fected business’s consent to disclosure EPA may assert a business confiden-
of useful portions of records while pro- tiality claim covering the information
tecting the information which is or by placing on (or attaching to) the in-
may be entitled to confidentiality (e.g., formation, at the time it is submitted
by withholding such portions of a to EPA, a cover sheet, stamped or
record as would identify a business, or typed legend, or other suitable form of
by disclosing data in the form of indus- notice employing language such as
try-wide aggregates, multi-year aver- trade secret, proprietary, or company con-
ages or totals, or some similar form). fidential. Allegedly confidential por-
(g) This subpart does not apply to tions of otherwise non-confidential
questions concerning entitlement to documents should be clearly identified
confidential treatment or information by the business, and may be submitted
which concerns an individual solely in separately to facilitate identification
his personal, as opposed to business, and handling by EPA. If the business
capacity. desires confidential treatment only
[41 FR 36902, Sept. 1, 1976, as amended at 43 until a certain date or until the occur-
FR 40000, Sept. 8, 1978; 50 FR 51661, Dec. 18, rence of a certain event, the notice
1985] should so state.
(c) Effect of failure to assert claim at
§ 2.203 Notice to be included in EPA time of submission of information. If in-
requests, demands, and forms; formation was submitted by a business
method of asserting business con-
fidentiality claim; effect of failure to EPA on or after October 1, 1976, in
to assert claim at time of submis- response to an EPA request or demand
sion. (or on an EPA-prescribed form) which
contained the substance of the notice
(a) Notice to be included in certain re-
required by paragraph (a) of this sec-
quests and demands for information, and
tion, and if no business confidentiality
in certain forms. Whenever an EPA of-
claim accompanied the information
fice makes a written request or demand
when it was received by EPA, the in-
that a business furnish information
quiry to the business normally re-
which, in the office’s opinion, is likely
quired by § 2.204(c)(2) need not be made.
to be regarded by the business as enti-
If a claim covering the information is
tled to confidential treatment under
received after the information itself is
this subpart, or whenever an EPA of-
received, EPA will make such efforts as
fice prescribes a form for use by busi-
nesses in furnishing such information, are administratively practicable to as-
the request, demand, or form shall in- sociate the late claim with copies of
clude or enclose a notice which— the previously-submitted information
(1) States that the business may, if it in EPA files (see § 2.204(c)(1)). However,
desires, assert a business confiden- EPA cannot assure that such efforts
tiality claim covering part or all of the will be effective, in light of the possi-
information, in the manner described bility of prior disclosure or widespread
by paragraph (b) of this section, and prior dissemination of the information.
that information covered by such a
§ 2.204 Initial action by EPA office.
claim will be disclosed by EPA only to
the extent, and by means of the proce- (a) Situations requiring action. This
dures, set forth in this subpart; section prescribes procedures to be
(2) States that if no such claim ac- used by EPA offices in making initial
companies the information when it is determinations of whether business in-
received by EPA, it may be made avail- formation is entitled to confidential
able to the public by EPA without fur- treatment for reasons of business con-
ther notice to the business; and fidentiality. Action shall be taken
(3) Furnishes a citation of the loca- under this section whenever an EPA of-
tion of this subpart in the Code of Fed- fice:
eral Regulations and the FEDERAL REG- (1) Learns that it is responsible for
ISTER. responding to a request under 5 U.S.C.
(b) Method and time of asserting busi- 552 for the release of business informa-
ness confidentiality claim. A business tion; in such a case, the office shall
39
§ 2.204 40 CFR Ch. I (7–1–00 Edition)
issue an initial determination within EPA office shall examine the informa-
the period specified in § 2.112; tion and the office’s records to deter-
(2) Desires to determine whether mine which businesses, if any, are af-
business information in its possession fected businesses (see § 2.201(d)), and to
is entitled to confidential treatment, determine which businesses if any,
even though no request for release of have asserted business confidentiality
the information has been received; or claims which remain applicable to the
(3) Determines that it is likely that information. If any business is found to
EPA eventually will be requested to have asserted an applicable claim, the
disclose the information at some future office shall take action under para-
date and thus will have to determine graph (d) of this section with respect to
whether the information is entitled to each such claim.
confidential treatment. In such a case (2)(i) If the examination conducted
this section’s procedures should be ini- under paragraph (c)(1) of this section
tiated at the earliest practicable time, discloses the existence of any business
in order to increase the time available which, although it has not asserted a
for preparation and submission of com- claim, might be expected to assert a
ments and for issuance of determina- claim if it knew EPA proposed to dis-
tions, and to make easier the task of close the information, the EPA office
meeting response deadlines if a request shall contact a responsible official of
for release of the information is later each such business to learn whether
received under 5 U.S.C. 552. the business asserts a claim covering
(b) Previous confidentiality determina- the information. However, no such in-
tion. The EPA office shall first ascer- quiry need be made to any business—
tain whether there has been a previous (A) Which failed to assert a claim
determination, issued by a Federal covering the information when re-
court or by an EPA legal office acting sponding to an EPA request or demand,
under this subpart, holding that the in-
or supplying information on an EPA
formation in question is entitled to
form, which contained the substance of
confidential treatment for reasons of
the statements prescribed by § 2.203(a);
business confidentiality.
(1) If such a determination holds that (B) Which otherwise failed to assert a
the information is entitled to confiden- claim covering the information after
tial treatment, the EPA Office shall being informed by EPA that such fail-
furnish any person whose request for ure could result in disclosure of the in-
the information is pending under 5 formation to the public; or
U.S.C. 552 an initial determination (see (C) Which has otherwise waived or
§ 2.111 and § 2.113) that the information withdrawn a claim covering the infor-
has previously been determined to be mation.
entitled to confidential treatment, and (ii) If a request for release of the in-
that the request is therefore denied. formation under 5 U.S.C. 552 is pending
The office shall furnish such person the at the time inquiry is made under this
appropriate case citation or EPA deter- paragraph (c)(2), the inquiry shall be
mination. If the EPA office believes made by telephone or equally prompt
that a previous determination which means, and the responsible official con-
was issued by an EPA legal office may tacted shall be informed that any
be improper or no longer valid, the of- claim the business wishes to assert
fice shall so inform the EPA legal of- must be brought to the EPA office’s at-
fice, which shall consider taking action tention no later than the close of busi-
under § 2.205(h). ness on the third working day after
(2) With respect to all information such inquiry.
not known to be covered by such a pre- (iii) A record shall be kept of the re-
vious determination, the EPA office sults of any inquiry under this para-
shall take action under paragraph (c) graph (c)(2). If any business makes a
of this section. claim covering the information, the
(c) Determining existence of business EPA office shall take further action
confidentiality claims. (1) Whenever ac- under paragraph (d) of this section.
tion under this paragraph is required (3) If, after the examination under
by paragraph (b)(2) of this section, the paragraph (c)(1) of this section, and
40
after any inquiry made under para- § 2.205(f). However, if a business has pre-
graph (c)(2) of this section, the EPA of- viously been furnished notice under
fice knows of no claim covering the in- § 2.205(f) with respect to the same infor-
formation and the time for response to mation, no further notice need be fur-
any inquiry has passed, the informa- nished to that business. A copy of each
tion shall be treated for purposes of notice furnished to a business under
this subpart as not entitled to con- this paragraph (d)(2) and § 2.205(f) shall
fidential treatment. be forwarded promptly to the appro-
(d) Preliminary determination. When- priate EPA legal office.
ever action under this paragraph is re- (e) Notice to affected businesses; oppor-
quired by paragraph (c)(1) or (2) of this tunity to comment. (1) Whenever re-
section on any business’s claim, the quired by paragraph (d)(1) of this sec-
EPA Office shall make a determination tion, the EPA office shall promptly fur-
with respect to each such claim. Each nish each business a written notice
determination shall be made after con- stating that EPA is determining under
sideration of the provisions of § 2.203, this subpart whether the information
the applicable substantive criteria in is entitled to confidential treatment,
§ 2.208 or elsewhere in this subpart, and and affording the business an oppor-
any previously-issued determinations tunity to comment. The notice shall be
under this subpart which are applica- furnished by certified mail (return re-
ble. ceipt requested), by personal delivery,
(1) If, in connection with any or by other means which allows
business’s claim, the office determines verification of the fact and date of re-
that the information may be entitled ceipt. The notice shall state the ad-
to confidential treatment, the office dress of the office to which the
shall— business’s comments shall be addressed
(i) Furnish the notice of opportunity (the EPA office furnishing the notice,
to submit comments prescribed by unless the General Counsel has di-
paragraph (e) of this section to each rected otherwise), the time allowed for
business which is known to have as- comments, and the method for request-
serted an applicable claim and which ing a time extension under § 2.205(b)(2).
has not previously been furnished such The notice shall further state that
notice with regard to the information EPA will construe a business’s failure
in question; to furnish timely comments as a waiv-
(ii) Furnish, to any person whose re- er of the business’s claim.
quest for release of the information is (2) If action under this section is oc-
pending under 5 U.S.C. 552, a deter- casioned by a request for the informa-
mination (in accordance with § 2.113) tion under 5 U.S.C. 552, the period for
that the information may be entitled comments shall be 15 working days
to confidential treatment under this after the date of the business’s receipt
subpart and 5 U.S.C. 552(b)(4), that fur- of the written notice. In other cases,
ther inquiry by EPA pursuant to this the EPA office shall establish a reason-
subpart is required before a final deter- able period for comments (not less than
mination on the request can be issued, 15 working days after the business’s re-
that the person’s request is therefore ceipt of the written notice). The time
initially denied, and that after further period for comments shall be consid-
inquiry a final determination will be ered met if the business’s comments
issued by an EPA legal office; and are postmarked or hand delivered to
(iii) Refer the matter to the appro- the office designated in the notice by
priate EPA legal office, furnishing the the date specified. In all cases, the no-
information required by paragraph (f) tice shall call the business’s attention
of this section after the time has to the provisions of § 2.205(b).
elapsed for receipt of comments from (3) At or about the time the written
the affected business. notice is furnished, the EPA office
(2) If, in connection with all applica- shall orally inform a responsible rep-
ble claims, the office determines that resentative of the business (by tele-
the information clearly is not entitled phone or otherwise) that the business
to confidential treatment, the office should expect to receive the written
shall take the actions required by notice, and shall request the business
41
§ 2.204 40 CFR Ch. I (7–1–00 Edition)
to contact the EPA office if the written though the notice shall request con-
notice has not been received within a firmation of EPA’s understanding of
few days, so that EPA may furnish a such facts where appropriate.
duplicate notice. (6) The notice shall refer to § 2.205(c)
(4) The written notice required by and shall include the statement pre-
paragraph (e)(1) of this section shall in- scribed by § 2.203(a).
vite the business’s comments on the (f) Materials to be furnished to EPA
following points (subject to paragraph legal office. When a matter is referred
(e)(5) of this section): to an EPA legal office under paragraph
(i) The portions of the information
(d)(1) of this section, the EPA office
which are alleged to be entitled to con-
taking action under this section shall
fidential treatment;
forward promptly to the EPA legal of-
(ii) The period of time for which con-
fidential treatment is desired by the fice the following items:
business (e.g., until a certain date, (1) A copy of the information in ques-
until the occurrence of a specified tion, or (where the quantity or form of
event, or permanently); the information makes forwarding a
(iii) The purpose for which the infor- copy of the information impractical)
mation was furnished to EPA and the representative samples, a description
approximate date of submission, if of the information, or both;
known; (2) A description of the cir-
(iv) Whether a business confiden- cumstances and date of EPA’s acquisi-
tiality claim accompanied the information of the information;
tion when it was received by EPA; (3) The name, address, and telephone
(v) Measures taken by the business to number of the EPA employee(s) most
guard against undesired disclosure of familiar with the information;
the information to others; (4) The name, address and telephone
(vi) The extent to which the informa- number of each business which asserts
tion has been disclosed to others, and an applicable business confidentiality
the precautions taken in connection claim;
therewith;
(5) A copy of each applicable claim
(vii) Pertinent confidentiality deter-
minations, if any, by EPA or other (or the record of the assertion of the
Federal agencies, and a copy of any claim), and a description of when and
such determination, or reference to it, how each claim was asserted;
if available; (6) Comments concerning each
(viii) Whether the business asserts business’s compliance or noncompli-
that disclosure of the information ance with applicable requirements of
would be likely to result in substantial § 2.203;
harmful effects on the business’ com- (7) A copy of any request for release
petitive position, and if so, what those of the information pending under 5
harmful effects would be, why they U.S.C. 552;
should be viewed as substantial, and an (8) A copy of the business’s comments
explanation of the causal relationship on whether the information is entitled
between disclosure and such harmful to confidential treatment;
effects; and (9) The office’s comments concerning
(ix) Whether the business asserts the appropriate substantive criteria
that the information is voluntarily under this subpart, and information
submitted information as defined in the office possesses concerning the in-
§ 2.201(i), and if so, whether and why formation’s entitlement to confidential
disclosure of the information would
treatment; and
tend to lessen the availability to EPA
(10) Copies of other correspondence or
of similar information in the future.
(5) To the extent that the EPA office memoranda which pertain to the mat-
already possesses the relevant facts, ter.
the notice need not solicit responses to [41 FR 36902, Sept. 1, 1976, as amended at 43
the matters addressed in paragraphs FR 40000, Sept. 8, 1978; 50 FR 51661, Dec. 18,
(e)(4) (i) through (ix) of this section, al- 1985]
42
§ 2.205 Final confidentiality determi- whose request for release of the infor-
nation by EPA legal office. mation under 5 U.S.C. 552 is pending.
(a) Role of EPA legal office. (1) The ap- (3) The period for submission of com-
propriate EPA legal office (see para- ments by a business may be shortened
graph (i) of this section) is responsible in the manner described in paragraph
for making the final administrative de- (g) of this section.
termination of whether or not business (4) If a business’s comments have not
information covered by a business con- been received by the specified EPA of-
fidentiality claim is entitled to con- fice by the date they are due (including
fidential treatment under this subpart. any approved extension), that office
(2) When a request for release of the shall promptly inquire whether the
information under 5 U.S.C. 552 is pend- business has complied with paragraph
ing, the EPA legal office’s determina- (b)(1) of this section. If the business has
tion shall serve as the final determina- complied with paragraph (b)(1) but the
tion on appeal from an initial denial of comments have been lost in trans-
the request. mission, duplicate comments shall be
(i) If the initial denial was issued requested.
under § 2.204(b)(1), a final determination (c) Confidential treatment of comments
by the EPA legal office is necessary from business. If information submitted
only if the requestor has actually filed to EPA by a business as part of its
an appeal. comments under this section pertains
(ii) If the initial denial was issued to the business’s claim, is not other-
under § 2.204(d)(1), however, the EPA wise possessed by EPA, and is marked
legal office shall issue a final deter- when received in accordance with
mination in every case, unless the re-
§ 2.203(b), it will be regarded by EPA as
quest has been withdrawn. (Initial de-
entitled to confidential treatment and
nials under § 2.204(d)(1) are of a proce-
will not be disclosed by EPA without
dural nature, to allow further inquiry
the business’s consent, unless its dis-
into the merits of the matter, and a re-
closure is duly ordered by a Federal
questor is entitled to a decision on the
court, notwithstanding other provi-
merits.) If an appeal from such a denial
sions of this subpart to the contrary.
has not been received by the EPA Free-
dom of Information Officer on the (d) Types of final determinations; mat-
tenth working day after issuance of the ters to be considered. (1) If the EPA legal
denial, the matter shall be handled as office finds that a business has failed to
if an appeal had been received on that furnish comments under paragraph (b)
day, for purposes of establishing a of this section by the specified due
schedule for issuance of an appeal deci- date, it shall determine that the busi-
sion under § 2.117 of this part. ness has waived its claim. If, after ap-
(b) Comment period; extensions; untime- plication of the preceding sentence, no
liness as waiver of claim. (1) Each busi- claim applies to the information, the
ness which has been furnished the no- office shall determine that the infor-
tice and opportunity to comment pre- mation is not entitled to confidential
scribed by § 2.204(d)(1) and § 2.204(e) treatment under this subpart and, sub-
shall furnish its comments to the office ject to § 2.210, is available to the public.
specified in the notice in time to be (2) In all other cases, the EPA legal
postmarked or hand delivered to that office shall consider each business’s
office not later than the date specified claim and comments, the various pro-
in the notice (or the date established in visions of this subpart, any previously-
lieu thereof under this section). issued determinations under this sub-
(2) The period for submission of com- part which are pertinent, the materials
ments may be extended if, before the furnished it under § 2.204(f), and such
comments are due, a request for an ex- other materials as it finds appropriate.
tension of the comment period is made With respect to each claim, the office
by the business and approved by the shall determine whether or not the in-
EPA legal office. Except in extraor- formation is entitled to confidential
dinary circumstances, the EPA legal treatment for the benefit of the busi-
office will not approve such an exten- ness that asserted the claim, and the
sion without the consent of any person period of any such entitlement (e.g.,
43
§ 2.205 40 CFR Ch. I (7–1–00 Edition)
until a certain date, until the occur- (2) The notice prescribed by para-
rence of a specified event, or perma- graph (f)(1) of this section shall be
nently), and shall take further action written, and shall be furnished by cer-
under paragraph (e) or (f) of this sec- tified mail (return receipt requested),
tion, as appropriate. by personal delivery, or by other means
(3) Whenever the claims of two or which allows verification of the fact of
more businesses apply to the same in- receipt and the date of receipt. The no-
formation, the EPA legal office shall tice shall state the basis for the deter-
take action appropriate under the par- mination, that it constitutes final
ticular circumstances to protect the agency action concerning the business
interests of all persons concerned (in- confidentiality claim, and that such
cluding any person whose request for final agency action may be subject to
the information is pending under 5 judicial review under Chapter 7 of Title
U.S.C. 552). 5, United States Code. With respect to
(e) Determination that information is EPA’s implementation of the deter-
entitled to confidential treatment. If the mination, the notice shall state that
EPA legal office determines that the (subject to § 2.210) EPA will make the
information is entitled to confidential information available to the public on
treatment for the full period requested the tenth working day after the date of
by the business which made the claim, the business’s receipt of the written
EPA shall maintain the information in notice (or on such later date as is es-
confidence for such period, subject to tablished in lieu thereof by the EPA
paragraph (h) of this section, § 2.209, legal office under paragraph (f)(3) of
and the other provisions of this subpart this section), unless the EPA legal of-
which authorize disclosure in specified fice has first been notified of the
circumstances, and the office shall so business’s commencement of an action
inform the business. If any person’s rein a Federal court to obtain judicial re-
view of the determination, and to ob-
quest for the release of the information
tain preliminary injunctive relief
is then pending under 5 U.S.C. 552, the
against disclosure. The notice shall
EPA legal office shall issue a final de-
further state that if such an action is
termination denying that request.
timely commenced, EPA may nonethe-
(f) Determination that information is less make the information available to
not entitled to confidential treatment; no- the public (in the absence of an order
tice; waiting period; release of informa- by the court to the contrary), once the
tion. (1) Notice of denial (or partial de- court has denied a motion for a pre-
nial) of a business confidentiality liminary injunction in the action or
claim, in the form prescribed by para- has otherwise upheld the EPA deter-
graph (f)(2) of this section, shall be fur- mination, or whenever it appears to
nished— the EPA legal office, after reasonable
(i) By the EPA office taking action notice to the business, that the busi-
under § 2.204, to each business on behalf ness is not taking appropriate meas-
of which a claim has been made, when- ures to obtain a speedy resolution of
ever § 2.204(d)(2) requires such notice; the action. If the information has been
and found to be temporarily entitled to
(ii) By the EPA legal office taking confidential treatment, the notice
action under this section, to each busi- shall further state that the informa-
ness which has asserted a claim appli- tion will not be disclosed prior to the
cable to the information and which has end of the period of such temporary en-
furnished timely comments under para- titlement to confidential treatment.
graph (b) of this section, whenever the (3) The period established in a notice
EPA legal office determines that the under paragraph (f)(2) of this section
information is not entitled to confiden- for commencement of an action to ob-
tial treatment under this subpart for tain judicial review may be extended if,
the benefit of the business, or deter- before the expiration of such period, a
mines that the period of any entitle- request for an extension is made by the
ment to confidential treatment is business and approved by the EPA
shorter than that requested by the legal office. Except in extraordinary
business. circumstances, the EPA legal office
44
will not approve such an extension this section, or under § 2.206 or § 2.207,
without the consent of any person issues a final determination stating
whose request for release of the infor- that the earlier determination no
mation under 5 U.S.C. 552 is pending. longer describes correctly the informa-
(4) After the expiration of any period tion’s entitlement to confidential
of temporary entitlement to confiden- treatment because of change in the ap-
tial treatment, a determination under plicable law, newly-discovered or
this paragraph (f) shall be implemented changed facts, or because the earlier
by the EPA legal office by making the determination was clearly erroneous. If
information available to the public (in an EPA legal office tentatively con-
the absence of a court order prohib-
cludes that such an earlier determina-
iting disclosure) whenever—
tion is of questionable validity, it shall
(i) The period provided for com-
mencement by a business of an action so inform the business, and shall afford
to obtain judicial review of the deter- the business an opportunity to furnish
mination has expired without notice to comments on pertinent issues in the
the EPA legal office of commencement manner described by § 2.204(e) and para-
of such an action; graph (b) of this section. If, after con-
(ii) The court, in a timely-com- sideration of any timely comments
menced action, has denied the business’ submitted by the business, the EPA
motion for a preliminary injunction, or legal office makes a revised final deter-
has otherwise upheld the EPA determination that the information is not
mination; or entitled to confidential treatment, or
(iii) The EPA legal office, after rea- that the period of entitlement to such
sonable notice has been provided to the treatment will end sooner than it
business, finds that the business is not would have ended under the earlier de-
taking appropriate measures to obtain termination, the office will follow the
a speedy resolution of the timely-com- procedure described in paragraph (f) of
menced action. this section. Determinations under this
(5) Any person whose request for re- section may be made only by, or with
lease of the information under 5 U.S.C. the concurrence of, the General Coun-
552 is pending at the time notice is sel.
given under paragraph (f)(2) of this sec-
(i) Delegation and redelegation of au-
tion shall be furnished a determination
under 5 U.S.C. 552 stating the cir- thority. Unless the General Counsel
cumstances under which the informa- otherwise directs, or this subpart oth-
tion will be released. erwise specifically provides, determina-
(g) Emergency situations. If the Gen- tions and actions required by this sub-
eral Counsel finds that disclosure of in- part to be made or taken by an EPA
formation covered by a claim would be legal office shall be made or taken by
helpful in alleviating a situation pos- the appropriate Regional counsel when-
ing an imminent and substantial dan- ever the EPA office taking action
ger to public health or safety, he may under § 2.204 or § 2.206(b) is under the su-
prescribe and make known to inter- pervision of a Regional Administrator,
ested persons such shorter comment and by the General Counsel in all other
period (paragraph (b) of this section), cases. The General Counsel may redele-
post-determination waiting period gate any or all of his authority under
(paragraph (f) of this section), or both, this subpart to any attorney employed
as he finds necessary under the cir- by EPA on a full-time basis under the
cumstances. General Counsel’s supervision. A Re-
(h) Modification of prior determina- gional Counsel may redelegate any or
tions. A determination that informa- all of his authority under this subpart
tion is entitled to confidential treat- to any attorney employed by EPA on a
ment for the benefit of a business, full-time basis under the Regional
made under this subpart by an EPA
counsel’s supervision.
legal office, shall continue in effect in
accordance with its terms until an [41 FR 36902, Sept. 1, 1976, as amended at 50
EPA legal office taking action under FR 51661, Dec. 18, 1985]
45
§ 2.206 40 CFR Ch. I (7–1–00 Edition)
§ 2.206 Advance confidentiality deter- received from the business (except that
minations. if a request under 5 U.S.C. 552 for re-
(a) An advance determination under lease of the information is received
this section may be issued by an EPA while the EPA legal office is in posses-
legal office if— sion of the information, the legal office
(1) EPA has requested or demanded shall retain a copy of the information,
that a business furnish business infor- but shall not disclose it unless ordered
mation to EPA; by a Federal court to do so). The legal
(2) The business asserts that the in- office shall not disclose the informa-
formation, if submitted, would con- tion to any other EPA office or em-
stitute voluntarily submitted informa- ployee and shall not use the informa-
tion under § 2.201(i); tion for any purpose except the deter-
(3) The business will voluntarily sub- mination under this section, unless
mit the information for use by EPA otherwise directed by a Federal court.
only if EPA first determines that the (e) If the EPA legal office determines
information is entitled to confidential that the information would constitute
treatment under this subpart; and voluntarily submitted information and
(4) The EPA office which desires sub- that it is entitled to confidential treat-
mission of the information has re- ment, it shall so inform the EPA office
quested that the EPA legal office issue which requested the determination and
a determination under this section. the business which submitted it, and
(b) The EPA office requesting an ad- shall forward the information to the
vance determination under this section EPA office which requested the deter-
shall— mination.
(1) Arrange to have the business fur-
nish directly to the EPA legal office a § 2.207 Class determinations.
copy of the information (or, where fea- (a) The General Counsel may make
sible, a description of the nature of the and issue a class determination under
information sufficient to allow a deter- this section if he finds that—
mination to be made), as well as the (1) EPA possesses, or is obtaining, re-
business’s comments concerning the lated items of business information;
matters addressed in § 2.204(e)(4), ex-
(2) One or more characteristics com-
cluding, however, matters addressed in
mon to all such items of information
§ 2.204 (e)(4)(iii) and (e)(4)(iv); and
will necessarily result in identical
(2) Furnish to the EPA legal office
treatment for each such item under
the materials referred to in § 2.204(f) (3),
one or more of the provisions in this
(7), (8), and (9).
subpart, and that it is therefore proper
(c) In making a determination under
to treat all such items as a class for
this section, the EPA legal office shall
one or more purposes under this sub-
first determine whether or not the in-
part; and
formation would constitute voluntarily
submitted information under § 2.201(i). (3) A class determination would serve
If the information would constitute a useful purpose.
voluntarily submitted information, the (b) A class determination shall clear-
legal office shall further determine ly identify the class of information to
whether the information is entitled to which it pertains.
confidential treatment. (c) A class determination may state
(d) If the EPA legal office determines that all of the information in the
that the information would not con- class—
stitute voluntarily submitted informa- (1) Is, or is not, voluntarily sub-
tion, or determines that it would con- mitted information under § 2.201(i);
stitute voluntarily submitted informa- (2) Is, or is not, governed by a par-
tion but would not be entitled to con- ticular section of this subpart, or by a
fidential treatment, it shall so inform particular set of substantive criteria
the business and the EPA office which under this subpart;
requested the determination, stating (3) Fails to satisfy one or more of the
the basis of the determination, and applicable substantive criteria, and is
shall return to the business all copies therefore ineligible for confidential
of the information which it may have treatment;
46
(4) Satisfies one or more of the appli- (1) The business has satisfactorily
cable substantive criteria; or shown that disclosure of the informa-
(5) Satisfies one or more of the appli- tion is likely to cause substantial harm
cable substantive criteria during a cer- to the business’s competitive position;
tain period, but will be ineligible for or
confidential treatment thereafter. (2) The information is voluntarily
(d) The purpose of a class determina- submitted information (see § 2.201(i)),
tion is simply to make known the and its disclosure would be likely to
Agency’s position regarding the man- impair the Government’s ability to ob-
ner in which information within the tain necessary information in the fu-
class will be treated under one or more ture.
of the provisions of this subpart. Ac-
cordingly, the notice of opportunity to § 2.209 Disclosure in special circum-
submit comments referred to in stances.
§ 2.204(d)(1)(ii) and § 2.205(b), and the list (a) General. Information which, under
of materials required to be furnished to this subpart, is not available to the
the EPA legal office under public may nonetheless be disclosed to
§ 2.204(d)(1)(iii), may be modified to re- the persons, and in the circumstances,
flect the fact that the class determina- described by paragraphs (b) through (g)
tion has made unnecessary the submis- of this section. (This section shall not
sion of materials pertinent to one or be construed to restrict the disclosure
more issues. Moreover, in appropriate
of information which has been deter-
cases, action based on the class deter-
mined to be available to the public.
mination may be taken under
However, business information for
§ 2.204(b)(1), § 2.204(d), § 2.205(d), or
§ 2.206. However, the existence of a class which a claim of confidentiality has
determination shall not, of itself, af- been asserted shall be treated as being
fect any right a business may have to entitled to confidential treatment
receive any notice under § 2.204(d)(2) or until there has been a determination in
§ 2.205(f). accordance with the procedures of this
subpart that the information is not en-
§ 2.208 Substantive criteria for use in titled to confidential treatment.)
confidentiality determinations. (b) Disclosure to Congress or the Comp-
Determinations issued under §§ 2.204 troller General. (1) Upon receipt of a
through 2.207 shall hold that business written request by the Speaker of the
information is entitled to confidential House, President of the Senate, chair-
treatment for the benefit of a par- man of a committee or subcommittee,
ticular business if— or the Comptroller General, as appro-
(a) The business has asserted a busi- priate, EPA will disclose business in-
ness confidentiality claim which has formation to either House of Congress,
not expired by its terms, nor been to a committee or subcommittee of
waived nor withdrawn; Congress, or to the Comptroller Gen-
(b) The business has satisfactorily eral, unless a statute forbids such dis-
shown that it has taken reasonable closure.
measures to protect the confidentiality (2) If the request is for business infor-
of the information, and that it intends mation claimed as confidential or de-
to continue to take such measures; termined to be confidential, the EPA
(c) The information is not, and has office processing the request shall pro-
not been, reasonably obtainable with- vide notice to each affected business of
out the business’s consent by other the type of information disclosed and
persons (other than governmental bod- to whom it is disclosed. Notice shall be
ies) by use of legitimate means (other given at least ten days prior to disclo-
than discovery based on a showing of sure, except where it is not possible to
special need in a judicial or quasi-judi- provide notice ten days in advance of
cial proceeding); any date established by the requesting
(d) No statute specifically requires body for responding to the request.
disclosure of the information; and Where ten days advance notice cannot
(e) Either— be given, as much advance notice as
47
§ 2.209 40 CFR Ch. I (7–1–00 Edition)
possible shall be provided. Where no- (ii) Disclosure to the Department of

tice cannot be given before the date es- Justice for purposes of representing
tablished by the requesting body for re- EPA in any matter; or
sponding to the request, notice shall be (iii) Disclosure to any Federal agency
given as promptly after disclosure as for purposes of performing an EPA
possible. Such notice may be given by statutory function under an inter-
notice published in the FEDERAL REG- agency agreement.
ISTER or by letter sent by certified (4) EPA notifies the other agency of
mail, return receipt requested, or tele- any unresolved business confidentiality
gram. However, if the requesting body claim covering the information and of
asks in writing that no notice under any determination under this subpart
this subsection be given, EPA will give that the information is entitled to con-
no notice. fidential treatment, and that further
(3) At the time EPA discloses the disclosure of the information may be a
business information, EPA will inform violation of 18 U.S.C. 1905; and
the requesting body of any unresolved (5) The other agency agrees in writ-
business confidentiality claim known ing not to disclose further any infor-
to cover the information and of any de- mation designated as confidential un-
termination under this subpart that less—
the information is entitled to confiden- (i) The other agency has statutory
tial treatment. authority both to compel production of
(c) Disclosure to other Federal agencies. the information and to make the pro-
EPA may disclose business information posed disclosure, and the other agency
to another Federal agency if— has, prior to disclosure of the informa-
(1) EPA receives a written request for tion to anyone other than its officers
disclosures of the information from a and employees, furnished to each af-
duly authorized officer or employee of fected business at least the same notice
the other agency or on the initiative of to which the affected business would be
EPA when such disclosure is necessary entitled under this subpart;
to enable the other agency to carry out (ii) The other agency has obtained
a function on behalf of EPA; the consent of each affected business to
(2) The request, if any, sets forth the the proposed disclosure; or
official purpose for which the informa- (iii) The other agency has obtained a
tion is needed; written statement from the EPA Gen-
(3) When the information has been eral Counsel or an EPA Regional Coun-
claimed as confidential or has been de- sel that disclosure of the information
termined to be confidential, the re- would be proper under this subpart.
sponsible EPA office provides notice to (d) Court-ordered disclosure. EPA may
each affected business of the type of in- disclose any business information in
formation to be disclosed and to whom any manner and to the extent ordered
it is to be disclosed. At the discretion by a Federal court. Where possible, and
of the office, such notice may be given when not in violation of a specific di-
by notice published in the FEDERAL rective from the court, the EPA office
REGISTER at least 10 days prior to dis- disclosing information claimed as con-
closure, or by letter sent by certified fidential or determined to be confiden-
mail return receipt requested or tele- tial shall provide as much advance no-
gram either of which must be received tice as possible to each affected busi-
by the affected business at least 10 ness of the type of information to be
days prior to disclosure. However, no disclosed and to whom it is to be dis-
notice shall be required when EPA fur- closed, unless the affected business has
nishes business information to another actual notice of the court order. At the
Federal agency to perform a function discretion of the office, subject to any
on behalf of EPA, including but not restrictions by the court, such notice
limited to— may be given by notice in the FEDERAL
(i) Disclosure to the Department of REGISTER, letter sent by certified mail
Justice for purposes of investigation or return receipt requested, or telegram.
prosecution of civil or criminal viola- (e) Disclosure within EPA. An EPA of-
tions of Federal law related to EPA ac- fice, officer, or employee may disclose
tivities; any business information to another
48
EPA office, officer, or employee with § 2.211 Safeguarding of business infor-

an official need for the information. mation; penalty for wrongful disclo-
(f) Disclosure with consent of business. sure.
EPA may disclose any business infor- (a) No EPA officer or employee may
mation to any person if EPA has ob- disclose, or use for his or her private
tained the prior consent of each af- gain or advantage, any business infor-
fected business to such disclosure. mation which came into his or her pos-
(g) Record of disclosures to be main- session, or to which he or she gained
tained. Each EPA office which discloses access, by virtue of his or her official
information to Congress, a committee position or employment, except as au-
or subcommittee of Congress, the thorized by this subpart.
Comptroller General, or another Fed- (b) Each EPA officer or employee
eral agency under the authority of who has custody or possession of busi-
paragraph (b) or (c) of this section, ness information shall take appro-
shall maintain a record of the fact of priate measures to properly safeguard
such disclosure for a period of not less such information and to protect
than 36 months after such disclosure. against its improper disclosure.
Such a record, which may be in the
(c) Violation of paragraph (a) or (b) of
form of a log, shall show the name of
this section shall constitute grounds
the affected businesses, the date of dis-
for dismissal, suspension, fine, or other
closure, the person or body to whom
adverse personnel action. Willful viola-
disclosure was made, and a description
tion of paragraph (a) of this section
of the information disclosed.
may result in criminal prosecution
[41 FR 36902, Sept. 1, 1976, as amended at 43 under 18 U.S.C. 1905 or other applicable
FR 40000, Sept. 8, 1978; 50 FR 51661, Dec. 18, statute.
1985] (d) Each contractor or subcontractor
with the United States Government,
§ 2.210 Nondisclosure for reasons
other than business confidentiality and each employee of such contractor
or where disclosure is prohibited or subcontractor, who is furnished
by other statute. business information by EPA under
§§ 2.301(h), § 2.302(h), 2.304(h), 2.305(h),
(a) Information which is not entitled
2.306(j), 2.307(h), 2.308(i), or 2.310(h) shall
to confidential treatment under this
use or disclose that information only
subpart shall be made available to the
as permitted by the contract or sub-
public (using the procedures set forth
contract under which the information
in §§ 2.204 and 2.205) if its release is re-
was furnished. Contractors or sub-
quested under 5 U.S.C. 552, unless EPA
contractors shall take steps to prop-
determines (under subpart A of this
erly safeguard business information in-
part) that, for reasons other than rea-
cluding following any security proce-
sons of business confidentiality, the in-
dures for handling and safeguarding
formation is exempt from mandatory
business information which are con-
disclosure and cannot or should not be
tained in any manuals, procedures, reg-
made available to the public. Any such
ulations, or guidelines provided by
determination under subpart A shall be
EPA. Any violation of this paragraph
coordinated with actions taken under
shall constitute grounds for suspension
this subpart for the purpose of avoiding
or debarment of the contractor or sub-
delay in responding to requests under 5
contractor in question. A willful viola-
U.S.C. 552.
tion of this paragraph may result in
(b) Notwithstanding any other provi-
criminal prosecution.
sion of this subpart, if any statute not
cited in this subpart appears to require [41 FR 36902, Sept. 1, 1976, as amended at 50
EPA to give confidential treatment to FR 51662, Dec. 18, 1985; 58 FR 461, Jan. 5, 1993]
any business information for reasons of
business confidentiality, the matter § 2.212 Establishment of control offices
shall be referred promptly to an EPA for categories of business informa-
legal office for resolution. Pending res- tion.
olution, such information shall be (a) The Administrator, by order, may
treated as if it were entitled to con- establish one or more mutually exclu-
fidential treatment. sive categories of business information,
49
§ 2.213 40 CFR Ch. I (7–1–00 Edition)
and may designate for each such cat- part, including inquiries and notices
egory an EPA office (hereinafter re- which require reply within deadlines if
ferred to as a control office) which shall the business is to avoid waiver of its
have responsibility for taking actions rights under this subpart, be furnished
(other than actions required to be to the designee pursuant to this sec-
taken by an EPA legal office) with re- tion. Only one person or office may
spect to all information within such serve at any one time as a business’s
category. designee under this subpart.
(b) If a control office has been as- (b) If a business has named a designee
signed responsibility for a category of under this section, the following EPA
business information, no other EPA of- inquiries and notices to the business
fice, officer, or employee may make shall be addressed to the designee:
available to the public (or otherwise (1) Inquiries concerning a business’s
disclose to persons other than EPA of- desire to assert a business confiden-
ficers and employees) any information tiality claim, under § 2.204(c)(2)(i)(A);
in that category without first obtain- (2) Notices affording opportunity to
ing the concurrence of the control of- substantiate confidentiality claims,
fice. Requests under 5 U.S.C. 552 for re- under § 2.204(d)(1) and § 2.204(e);
lease of such information shall be re- (3) Inquires concerning comments,
ferred to the control office. under § 2.205(b)(4);
(c) A control office shall take the ac- (4) Notices of denial of confidential
tions and make the determinations re- treatment and proposed disclosure of
quired by § 2.204 with respect to all in- information, under § 2.205(f);
formation in any category for which (5) Notices concerning shortened
the control office has been assigned re- comment and/or waiting periods under
sponsibility. § 2.205(g);
(d) A control office shall maintain a (6) Notices concerning modifications
record of the following, with respect to or overrulings of prior determinations,
items of business information in cat- under § 2.205(h);
egories for which it has been assigned (7) Notices to affected businesses
responsibility: under §§ 2.301(g) and 2.301(h) and analo-
(1) Business confidentiality claims; gous provisions in §§ 2.302, 2.303, 2.304,
(2) Comments submitted in support of 2.305, 2.306, 2.307, and 2.308; and
claims; (8) Notices to affected businesses
(3) Waivers and withdrawals of under § 2.209.
claims; (c) The Freedom of Information Offi-
(4) Actions and determinations by cer shall, as quickly as possible, notify
EPA under this subpart; all EPA offices that may possess infor-
(5) Actions by Federal courts; and mation submitted by the business to
(6) Related information concerning EPA, the Regional Freedom of Infor-
business confidentiality. mation Offices, the Office of General
Counsel, and the offices of Regional
§ 2.213 Designation by business of ad- Counsel of any designation received
dressee for notices and inquiries. under this section. Businesses making
(a) A business which wishes to des- designations under this section should
ignate a person or office as the proper bear in mind that several working days
addressee of communications from may be required for dissemination of
EPA to the business under this subpart this information within EPA and that
may do so by furnishing in writing to some EPA offices may not receive no-
the Freedom of Information Officer (A– tice of such designations.
101), Environmental Protection Agen- [41 FR 36902, Sept. 1, 1976, as amended at 43
cy, 401 M St. SW., Washington, DC FR 40001, Sept. 8, 1978]
20460, the following information: The
name and address of the business mak- § 2.214 Defense of Freedom of Informa-
ing the designation; the name, address, tion Act suits; participation by af-
and telephone number of the des- fected business.
ignated person or office; and a request (a) In making final confidentiality
that EPA inquiries and communica- determinations under this subpart, the
tions (oral and written) under this sub- EPA legal office relies to a large extent
50
upon the information furnished by the section is necessary, the General Coun-
affected business to substantiate its sel must find:
claim of confidentiality. The EPA legal (1) The EPA office requesting the in-
office may be unable to verify the ac- formation needs the information to
curacy of much of the information sub- perform its functions;
mitted by the affected business. (2) The agency will not furnish the
(b) If the EPA legal office makes a information to EPA without an agree-
final confidentiality determination
ment by EPA to keep the information
under this subpart that certain busi-
ness information is entitled to con- confidential; and
fidential treatment, and EPA is sued (3) Either:
by a requester under the Freedom of (i) EPA has no statutory power to
Information Act for disclosure of that compel submission of the information
information, EPA will: directly from the affected business, or
(1) Notify each affected business of (ii) While EPA has statutory power
the suit within 10 days after service of to compel submission of the informa-
the complaint upon EPA; tion directly from the affected busi-
(2) Where necessary to preparation of ness, compelling submission of the in-
EPA’s defense, call upon each affected formation directly from the business
business to furnish assistance; and would—
(3) Not oppose a motion by any af- (A) Require time in excess of that
fected business to intervene as a party available to the EPA office to perform
to the suit under rule 24(b) of the Fed-
its necessary work with the informa-
eral Rules of Civil Procedure.
(c) EPA will defend its final confiden- tion,
tiality determination, but EPA expects (B) Duplicate information already
the affected business to cooperate to collected by the other agency and over-
the fullest extent possible in this de- ly burden the affected business, or
fense. (C) Overly burden the resources of
EPA.
[43 FR 40001, Sept. 8, 1978]
(d) To determine that an agreement
§ 2.215 Confidentiality agreements. proposed under paragraph (b) of this
(a) No EPA officer, employee, con- section is proper, the General Counsel
tractor, or subcontractor shall enter must find that the agreement states—
into any agreement with any affected (1) The purpose for which the infor-
business to keep business information mation is required by EPA;
confidential unless such agreement is (2) The conditions under which the
consistent with this subpart. No EPA agency will furnish the information to
officer, employee, contractor, or sub- EPA;
contractor shall promise any affected (3) The information subject to the
business that business information will agreement;
be kept confidential unless the promise (4) That the agreement does not
is consistent with this subpart. cover information acquired by EPA
(b) If an EPA office has requested in- from another source;
formation from a State, local, or Fed-
(5) The manner in which EPA will
eral agency and the agency refuses to
treat the information; and
furnish the information to EPA be-
cause the information is or may con- (6) That EPA will treat the informa-
stitute confidential business information in accordance with the agreement
tion, the EPA office may enter into an subject to an order of a Federal court
agreement with the agency to keep the to disclose the information.
information confidential, notwith- (e) EPA will treat any information
standing the provisions of this subpart. acquired pursuant to an agreement
However, no such agreement shall be under paragraph (b) of this section in
made unless the General Counsel deter- accordance with the procedures of this
mines that the agreement is necessary subpart except where the agreement
and proper. specifies otherwise.
(c) To determine that an agreement
[43 FR 40001, Sept. 8, 1978]
proposed under paragraph (b) of this
51
§§ 2.216–2.300 40 CFR Ch. I (7–1–00 Edition)
§§ 2.216–2.300 [Reserved] any component thereof) designed and

intended to be marketed or used com-
§ 2.301 Special rules governing certain mercially but not yet so marketed or
information obtained under the used.
Clean Air Act. (3) Standard or limitation means any
(a) Definitions. For the purpose of this emission standard or limitation estab-
section: lished or publicly proposed pursuant to
(1) Act means the Clean Air Act, as the Act or pursuant to any regulation
amended, 42 U.S.C. 7401 et seq. under the Act.
(2)(i) Emission data means, with ref- (4) Proceeding means any rulemaking,
erence to any source of emission of any adjudication, or licensing conducted by
substance into the air— EPA under the Act or under regula-
(A) Information necessary to deter- tions which implement the Act, except
mine the identity, amount, frequency, for determinations under this subpart.
concentration, or other characteristics (5) Manufacturer has the meaning
(to the extent related to air quality) of given it in section 216(1) of the Act, 42
any emission which has been emitted U.S.C. 7550(1).
by the source (or of any pollutant re- (b) Applicability. (1) This section ap-
sulting from any emission by the plies to business information which
source), or any combination of the was—
foregoing; (i) Provided or obtained under sec-
(B) Information necessary to deter- tion 114 of the Act, 42 U.S.C. 7414, by
mine the identity, amount, frequency, the owner or operator of any sta-
concentration, or other characteristics tionary source, for the purpose (A) of
(to the extent related to air quality) of developing or assisting in the develop-
the emissions which, under an applica- ment of any implementation plan
ble standard or limitation, the source under section 110 or 111(d) of the Act, 42
was authorized to emit (including, to U.S.C. 7410, 7411(d), any standard of per-
the extent necessary for such purposes, formance under section 111 of the Act,
a description of the manner or rate of 42 U.S.C. 7411, or any emission standard
operation of the source); and under section 112 of the Act, 42 U.S.C.
(C) A general description of the loca- 7412, (B) of determining whether any
tion and/or nature of the source to the person is in violation of any such
extent necessary to identify the source standard or any requirement of such a
and to distinguish it from other plan, or (C) of carrying out any provi-
sources (including, to the extent nec- sion of the Act (except a provision of
essary for such purposes, a description Part II of the Act with respect to a
of the device, installation, or operation manufacturer of new motor vehicles or
constituting the source). new motor vehicle engines);
(ii) Notwithstanding paragraph (ii) Provided or obtained under sec-
(a)(2)(i) of this section, the following tion 208 of the Act, 42 U.S.C. 7542, for
information shall be considered to be the purpose of enabling the Adminis-
emission data only to the extent nec- trator to determine whether a manu-
essary to allow EPA to disclose pub- facturer has acted or is acting in com-
licly that a source is (or is not) in compliance with the Act and regulations
pliance with an applicable standard or under the Act, or provided or obtained
limitation, or to allow EPA to dem- under section 206(c) of the Act, 42
onstrate the feasibility, practicability, U.S.C. 7525(c); or
or attainability (or lack thereof) of an (iii) Provided in response to a sub-
existing or proposed standard or limi- poena for the production of papers,
tation: books, or documents issued under the
(A) Information concerning research, authority of section 307(a) of the Act,
or the results of research, on any 42 U.S.C. 7607(a).
project, method, device or installation (2) Information will be considered to
(or any component thereof) which was have been provided or obtained under
produced, developed, installed, and section 114 of the Act if it was provided
used only for research purposes; and in response to a request by EPA made
(B) Information concerning any prod- for any of the purposes stated in sec-
uct, method, device, or installation (or tion 114, or if its submission could have
52
been required under section 114, regard- (d) [Reserved]

less of whether section 114 was cited as (e) Substantive criteria for use in con-
the authority for any request for the fidentiality determinations. Section 2.208
information, whether an order to pro- applies to information to which this
vide the information was issued under section applies, except that informa-
section 113(a) of the Act, 42 U.S.C. tion which is emission data, a standard
7413(a), whether an action was brought or limitation, or is collected pursuant
under section 113(b) of the Act, 42 to section 211(b)(2)(A) of the Act is not
U.S.C. 7413(b), or whether the informa- eligible for confidential treatment. No
tion was provided directly to EPA or information to which this section ap-
through some third person. plies is voluntarily submitted informa-
(3) Information will be considered to tion.
have been provided or obtained under (f) Availability of information not enti-
section 208 of the Act if it was provided tled to confidential treatment. Section
in response to a request by EPA made 2.210 does not apply to information to
for any of the purposes stated in sec- which this section applies. Emission
tion 208, or if its submission could have data, standards or limitations, and any
been required under section 208, regard- other information provided under sec-
less of whether section 208 was cited as tion 114 or 208 of the Act which is de-
the authority for any request for the termined under this subpart not to be
information, whether an action was entitled to confidential treatment,
brought under section 204 of the Act, 42 shall be available to the public not-
U.S.C. 7523, or whether the information
withstanding any other provision of
was provided directly to EPA or
this part. Emission data and standards
through some third person.
or limitations provided in response to a
(4) Information will be considered to
subpoena issued under section 307(a) of
have been provided or obtained under
the Act shall be available to the public
section 206(c) of the Act if it was pro-
notwithstanding any other provision of
vided in response to a request by EPA
this part. Information (other than
made for any of the purposes stated in
emission data and standards or limita-
section 206(c), or if its submission could
tions) provided in response to a sub-
have been required under section 206(c)
poena issued under section 307(a) of the
regardless of whether section 206(c) was
cited as authority for any request for Act, which is determined under this
the information, whether an action was subpart not to be entitled to confiden-
brought under section 204 of the Act, 42 tial treatment, shall be available to
U.S.C. 7523, or whether the information the public, unless EPA determines that
was provided directly to EPA or the information is exempt from manda-
through some third person. tory disclosure under 5 U.S.C. 552(b) for
(5) Information will be considered to reasons other than reasons of business
have been provided or obtained under confidentiality and cannot or should
section 307(a) of the Act if it was pro- not be made available to the public.
vided in response to a subpoena issued (g) Disclosure of information relevant to
under section 307(a), or if its produc- a proceeding. (1) Under sections 114, 208
tion could have been required by sub- and 307 of the Act, any information to
poena under section 307(a), regardless which this section applies may be re-
of whether section 307(a) was cited as leased by EPA because of the relevance
the authority for any request for the of the information to a proceeding,
information, whether a subpoena was notwithstanding the fact that the in-
issued by EPA, whether a court issued formation otherwise might be entitled
an order under section 307(a), or wheth- to confidential treatment under this
er the information was provided di- subpart. Release of information be-
rectly to EPA or through some third cause of its relevance to a proceeding
person. shall be made only in accordance with
(c) Basic rules which apply without this paragraph (g).
change. Sections 2.201 through 2.207, (2) In connection with any proceeding
§ 2.209 and §§ 2.211 through 2.215 apply other than a proceeding involving a de-
without change to information to cision by a presiding officer after an
which this section applies. evidentiary or adjudicatory hearing,
53
§ 2.301 40 CFR Ch. I (7–1–00 Edition)
information to which this section ap- ceeding, the contemplated disclosure

plies which may be entitled to con- would serve the public interest, and the
fidential treatment may be made avail- presiding officer determines in writing
able to the public under this paragraph that the information is relevant to a
(g)(2). No information shall be made matter in controversy in the pro-
available to the public under this para- ceeding. The presiding officer may con-
graph (g)(2) until any affected business dition disclosure of the information to
has been informed that EPA is consid- a party of record on the making of such
ering making the information avail- protective arrangements and commit-
able to the public under this paragraph ments as he finds to be warranted. Dis-
(g)(2) in connection with an identified closure to one or more parties of
proceeding, and has afforded the busi- record, under protective arrangements
ness a reasonable period for comment or commitments, shall not, of itself, af-
(such notice and opportunity to com- fect the eligibility of information for
ment may be afforded in connection confidential treatment under the other
with the notice prescribed by provisions of this subpart. Any affected
§ 2.204(d)(1) and § 2.204(e)). Information business shall be given at least 5 days
may be made available to the public notice by the presiding officer prior to
under this paragraph (g)(2) only if, making the information available to
after consideration of any timely com- the public or to one or more of the par-
ments submitted by the business, the ties of record to the proceeding.
General Counsel determines that the (4) In connection with any proceeding
information is relevant to the subject involving a decision by a presiding offi-
of the proceeding and the EPA office cer after an evidentiary or adjudica-
conducting the proceeding determines tory hearing, information to which this
that the public interest would be section applies may be made available
served by making the information to one or more parties of record to the
available to the public. Any affected proceeding, upon request of a party,
business shall be given at least 5 days’ under this paragraph (g)(4). A party of
notice by the General Counsel prior to record seeking disclosure of informa-
making the information available to tion shall direct his request to the pre-
the public. siding officer. Upon receipt of such a
(3) In connection with any proceeding request, the presiding officer shall no-
involving a decision by a presiding offi- tify each affected business that disclo-
cer after an evidentiary or adjudica- sure under this paragraph (g)(4) has
tory hearing, information to which this been requested, and shall afford each
section applies which may be entitled such business a period for comment
to confidential treatment may be made found by the presiding officer to be rea-
available to the public, or to one or sonable under the circumstances. Infor-
more parties of record to the pro- mation may be disclosed to a party of
ceeding, upon EPA’s initiative, under record under this paragraph (g)(4) only
this paragraph (g)(3). An EPA office if, after consideration of any timely
proposing disclosure of information comments submitted by the business,
under this paragraph (g)(3), shall so no- the presiding officer determines in
tify the presiding officer in writing. writing that (i) the party of record has
Upon receipt of such a notification, the satisfactorily shown that with respect
presiding officer shall notify each af- to a significant matter which is in con-
fected business that disclosure under troversy in the proceeding, the party’s
this paragraph (g)(3) has been proposed, ability to participate effectively in the
and shall afford each such business a proceeding will be significantly im-
period for comment found by the pre- paired unless the information is dis-
siding officer to be reasonable under closed to him, and (ii) any harm to an
the circumstances. Information may be affected business that would result
disclosed under this paragraph (g)(3) from the disclosure is likely to be out-
only if, after consideration of any weighed by the benefit to the pro-
timely comments submitted by the ceeding and to the public interest that
business, the EPA office determines in would result from the disclosure. The
writing that, for reasons directly asso- presiding officer may condition disclo-
ciated with the conduct of the pro- sure of the information to a party of
54
record on the making of such protec- the General Counsel, that such disclo-
tive arrangements and commitments sure is necessary in order that the con-
as he finds to be warranted. Disclosure tractor or subcontractor may carry out
to one or more parties of record, under the work required by the contract or
protective arrangements or commit- subcontract.
ments, shall not, of itself, affect the (ii) No information shall be disclosed
eligibility of information to confiden- under this paragraph (h)(2), unless this
tial treatment under the other provi- contract or subcontract in question
sions of this subpart. Any affected provides:
business shall be given at least 5 days (A) That the contractor or subcon-
notice by the presiding officer prior to tractor and the contractor’s or sub-
making the information available to contractor’s employees shall use the
one or more of the parties of record to information only for the purpose of
the proceeding. carrying out the work required by the
(h) Disclosure to authorized representa- contract or subcontract, shall refrain
tives. (1) Under sections 114, 208 and from disclosing the information to any-
307(a) of the Act, EPA possesses au- one other than EPA without the prior
thority to disclose to any authorized written approval of each affected busi-
representative of the United States any ness or of an EPA legal office and shall
information to which this section ap- return to EPA all copies of the infor-
plies, notwithstanding the fact that mation (and any abstracts or extracts
the information might otherwise be en- therefrom) upon request by the EPA
titled to confidential treatment under program office, whenever the informa-
this subpart. Such authority may be tion is no longer required by the con-
exercised only in accordance with para- tractor or subcontractor for the per-
graph (h) (2) or (3) of this section. formance of the work required under
(2)(i) A person under contract or sub- the contract or subcontract, or upon
contract to the United States govern- completion of the contract or sub-
ment to perform work in support of contract (where the information was
EPA in connection with the Act or reg- provided to the contractor or subcon-
ulations which implement the Act may tractor by an agency other than EPA,
be considered an authorized representa- the contractor may disclose or return
tive of the United States for purposes the information to that agency);
of this paragraph (h). For purposes of (B) That the contractor or subcon-
this section, the term ‘‘contract’’ in- tractor shall obtain a written agree-
cludes grants and cooperative agreement to honor such terms of the con-
ments under the Environmental Pro- tract or subcontract from each of the
grams Assistance Act of 1984 (Pub. L. contractor’s or subcontractor’s em-
98–313), and the term ‘‘contractor’’ in- ployees who will have access to the in-
cludes grantees and cooperators under formation, before such employee is al-
the Environmental Programs Assist- lowed such access; and
ance Act of 1984. Subject to the limita- (C) That the contractor or subcon-
tions in this paragraph (h)(2), informa- tractor acknowledges and agrees that
tion to which this section applies may the contract or subcontract provisions
be disclosed: concerning the use and disclosure of
(A) To a contractor or subcontractor business information are included for
with EPA, if the EPA program office the benefit of, and shall be enforceable
managing the contract first determines by, both the United States government
in writing that such disclosure is nec- and any affected business having an in-
essary in order that the contractor or terest in information concerning it
subcontractor may carry out the work supplied to the contractor or subcon-
required by the contract or sub- tractor by the United States govern-
contract; or ment under the contract or sub-
(B) To a contractor or subcontractor contract.
with an agency other than EPA, if the (iii) No information shall be disclosed
EPA program office which provides the under this paragraph (h)(2) until each
information to that agency, con- affected business has been furnished
tractor, or subcontractor first deter- notice of the contemplated disclosure
mines in writing, in consultation with by the EPA program office and has
55
§ 2.302 40 CFR Ch. I (7–1–00 Edition)
been afforded a period found reasonable § 2.302 Special rules governing certain
by that office (not less than 5 working information obtained under the
days) to submit its comments. Such Clean Water Act.
notice shall include a description of (a) Definitions. For the purposes of
the information to be disclosed, the this section:
identity of the contractor or subcon- (1) Act means the Clean Water Act, as
tractor, the contract or subcontract amended, 33 U.S.C. 1251 et seq.
number, if any, and the purposes to be (2)(i) Effluent data means, with ref-
served by the disclosure. erence to any source of discharge of
(iv) The EPA program office shall any pollutant (as that term is defined
prepare a record of each disclosure in section 502(6) of the Act, 33 U.S.C.
under this paragraph (h)(2), showing 1362 (6))—
the contractor or subcontractor, the (A) Information necessary to deter-
contract or subcontract number, the mine the identity, amount, frequency,
information disclosed, the date(s) of concentration, temperature, or other
disclosure, and each affected business. characteristics (to the extent related
The EPA program office shall maintain to water quality) of any pollutant
the record of disclosure and the deter- which has been discharged by the
mination of necessity prepared under source (or of any pollutant resulting
paragraph (h)(2)(i) of this section for a from any discharge from the source), or
period of not less than 36 months after any combination of the foregoing;
the date of the disclosure. (B) Information necessary to deter-
(3) A State or local governmental mine the identity, amount, frequency,
agency which has duties or responsibil- concentration, temperature, or other
ities under the Act, or under regula- characteristics (to the extent related
to water quality) of the pollutants
tions which implement the Act, may be
which, under an applicable standard or
considered an authorized representa-
limitation, the source was authorized
tive of the United States for purposes to discharge (including, to the extent
of this paragraph (h). Information to necessary for such purpose, a descrip-
which this section applies may be fur- tion of the manner or rate of operation
nished to such an agency at the agen- of the source); and
cy’s written request, but only if— (C) A general description of the loca-
(i) The agency has first furnished to tion and/or nature of the source to the
the EPA office having custody of the extent necessary to identify the source
information a written opinion from the and to distinguish it from other
agency’s chief legal officer or counsel sources (including, to the extent nec-
stating that under applicable State or essary for such purposes, a description
local law the agency has the authority of the device, installation, or operation
to compel a business which possesses constituting the source).
such information to disclose it to the (ii) Notwithstanding paragraph
agency, or (a)(2)(i) of this section, the following
(ii) Each affected business is in- information shall be considered to be
formed of those disclosures under this effluent data only to the extent nec-
paragraph (h)(3) which pertain to it, essary to allow EPA to disclose pub-
and the agency has shown to the satis- licly that a source is (or is not) in com-
faction of an EPA legal office that the pliance with an applicable standard or
agency’s use and disclosure of such in- limitation, or to allow EPA to dem-
formation will be governed by State or onstrate the feasibility, practicability,
local law and procedures which will or attainability (or lack thereof) of an
provide adequate protection to the in- existing or proposed standard or limi-
tation:
terests of affected businesses.
(A) Information concerning research,
[41 FR 36902, Sept. 1, 1976, as amended at 43 or the results of research, on any prod-
FR 40002, Sept. 8, 1978; 43 FR 42251, Sept. 20, uct, method, device, or installation (or
1978; 50 FR 51662, Dec. 18, 1985; 58 FR 461, Jan. any component thereof) which was pro-
5, 1993; 58 FR 5061, Jan 19, 1993; 58 FR 7189, duced, developed, installed, and used
Feb. 5, 1993] only for research purposes; and
56
(B) Information concerning any prod- tion could have been required by sub-
uct, method, device, or installation (or poena under section 509(a), regardless
any component thereof) designed and of whether section 509(a) was cited as
intended to be marketed or used com- the authority for any request for the
mercially but not yet so marketed or information, whether a subpoena was
used. issued by EPA, whether a court issued
(3) Standard or limitation means any an order under section 307(a), or wheth-
prohibition, any effluent limitation, or er the information was provided di-
any toxic, pre-treatment or new source rectly to EPA or through some third
performance standard established or person.
publicly proposed pursuant to the Act (4) This section specifically does not
or pursuant to regulations under the apply to information obtained under
Act, including limitations or prohibi- section 310(d) or 312(g)(3) of the Act, 33
tions in a permit issued or proposed by U.S.C. 1320(d), 1322(g)(3).
EPA or by a State under section 402 of (c) Basic rules which apply without
the Act, 33 U.S.C. 1342. change. Sections 2.201 through 2.207,
(4) Proceeding means any rulemaking, 2.209, 2.211 through 2.215 apply without
adjudication, or licensing conducted by change to information to which this
EPA under the Act or under regula- section applies.
tions which implement the Act, except (d) [Reserved]
for determinations under this part.
(e) Substantive criteria for use in con-
(b) Applicability. (1) This section ap-
fidentiality determinations. Section 2.208
plies only to business information—
applies to information to which this
(i) Provided to or obtained by EPA
under section 308 of the Act, 33 U.S.C. section applies, except that informa-
1318, by or from the owner or operator tion which is effluent data or a stand-
of any point source, for the purpose of ard or limitation is not eligible for
carrying out the objective of the Act confidential treatment. No information
(including but not limited to devel- to which this section applies is volun-
oping or assisting in the development tarily submitted information.
of any standard or limitation under the (f) Availability of information not enti-
Act, or determining whether any per- tled to confidential treatment. Section
son is in violation of any such standard 2.210 does not apply to information to
or limitation); or which this section applies. Effluent
(ii) Provided to or obtained by EPA data, standards or limitations, and any
under section 509(a) of the Act, 33 other information provided or obtained
U.S.C. 1369(a). under section 308 of the Act which is
(2) Information will be considered to determined under this subpart not to
have been provided or obtained under be entitled to confidential treatment,
section 308 of the Act if it was provided shall be available to the public not-
in response to a request by EPA made withstanding any other provision of
for any of the purposes stated in sec- this part. Effluent data and standards
tion 308, or if its submission could have or limitations provided in response to a
been required under section 308, regard- subpoena issued under section 509(a) of
less of whether section 308 was cited as the Act shall be available to the public
the authority for any request for the notwithstanding any other provision of
information, whether an order to pro- this part. Information (other than ef-
vide the information was issued under fluent data and standards or limita-
section 309(a)(3) of the Act, 33 U.S.C. tions) provided in response to a sub-
1319(a)(3), whether a civil action was poena issued under section 509(a) of the
brought under section 309(b) of the Act, Act, which is determined under this
33 U.S.C. 1319(b), and whether the infor- subpart not to be entitled to confiden-
mation was provided directly to EPA tial treatment, shall be available to
or through some third person. the public, unless EPA determines that
(3) Information will be considered to the information is exempt from manda-
have been provided or obtained under tory disclosure under 5 U.S.C. 552(b) for
section 509(a) of the Act if it was pro- reasons other than reasons of business
vided in response to a subpoena issued confidentiality and cannot or should
under section 509(a), or if its produc- not be made available to the public.
57
§ 2.303 40 CFR Ch. I (7–1–00 Edition)
(g) Disclosure of information relevant to Act (42 U.S.C. 4905, 4907) apply. Infor-
a proceeding. (1) Under sections 308 and mation will be deemed to have been
509(a) of the Act, any information to provided or obtained under section 13
which this section applies may be re- of the Act, if it was provided in re-
leased by EPA because of the relevance sponse to a request by EPA made for
of the information to a proceeding, the purpose of enabling EPA to deter-
notwithstanding the fact that the in- mine whether the manufacturer has
formation otherwise might be entitled acted or is acting in compliance with
to confidential treatment under this the Act, or if its submission could have
subpart. Release of information to been required under section 13 of the
which this section applies because of Act, regardless of whether section 13
its relevance to a proceeding shall be was cited as authority for the request,
made only in accordance with this whether an order to provide such infor-
paragraph (g). mation was issued under section 11(d)
(2)–(4) The provisions of § 2.301(g) (2), of the Act, 42 U.S.C. 4910(d), and wheth-
(3), and (4) are incorporated by refer the information was provided di-
erence as paragraphs (g) (2), (3), and (4), rectly to EPA by the manufacturer or
respectively of this section. through some third person.
(h) Disclosure to authorized representa- (c) Basic rules which apply without
tives. (1) Under sections 308 and 509(a) of change. Sections 2.201 through 2.207 and
the Act, EPA possesses authority to 2.209 through 2.215 apply without
disclose to any authorized representa- change to information to which this
tive of the United States any informa- section applies.
tion to which this section applies, not- (d) [Reserved]
withstanding the fact that the infor- (e) Substantive criteria for use in con-
mation might otherwise be entitled to fidentiality determinations. Section 2.208
confidential treatment under this sub- applies without change to information
part. Such authority may be exercised to which this section applies; however,
only in accordance with paragraph no information to which this section
(h)(2) or (h)(3) of this section. applies is voluntarily submitted infor-
(2)–(3) The provisions of § 2.301(h) (2) mation.
and (3) are incorporated by reference as (f) [Reserved]
paragraphs (h) (2) and (3), respectively, (g) Disclosure of information relevant to
of this section. a proceeding. (1) Under section 13 of the
Act, any information to which this sec-
FR 40003, Sept. 8, 1978] tion applies may be released by EPA
because of its relevance to a matter in
§ 2.303 Special rules governing certain controversy in a proceeding, notwith-
information obtained under the standing the fact that the information
Noise Control Act of 1972. otherwise might be entitled to con-
(a) Definitions. For the purposes of fidential treatment under this subpart.
this section: Release of information because of its
(1) Act means the Noise Control Act relevance to a proceeding shall be
of 1972, 42 U.S.C. 4901 et seq. made only in accordance with this
(2) Manufacturer has the meaning paragraph (g).
given it in 42 U.S.C. 4902(6). (2)–(4) The provisions of § 2.301(g) (2),
(3) Product has the meaning given it (3), and (4) are incorporated by ref-
in 42 U.S.C. 4902(3). erence as paragraphs (g) (2), (3), and (4),
(4) Proceeding means any rulemaking, respectively, of this section.
adjudication, or licensing conducted by [41 FR 36902, Sept. 1, 1976, as amended at 43
EPA under the Act or under regula- FR 40003, Sept. 8, 1978]
tions which implement the Act, except
for determinations under this subpart. § 2.304 Special rules governing certain
(b) Applicability. This section applies information obtained under the
only to information provided to or ob- Safe Drinking Water Act.
tained by EPA under section 13 of the (a) Definitions. For the purposes of
Act, 42 U.S.C. 4912, by or from any this section:
manufacturer of any product to which (1) Act means the Safe Drinking
regulations under section 6 or 8 of the Water Act, 42 U.S.C. 300f et seq.
58
(2) Contaminant means any physical, (c) Basic rules which apply without
chemical, biological, or radiological change. Sections 2.201 through 2.207,
substance or matter in water. 2.209, and 2.211 through 2.215 apply
(3) Proceeding means any rulemaking, without change to information to
adjudication, or licensing process con- which this section applies.
ducted by EPA under the Act or under (d) [Reserved]
regulations which implement the Act, (e) Substantive criteria for use in con-
except for any determination under fidentiality determinations. Section 2.208
this part. applies to information to which this
(b) Applicability. (1) This section ap- section applies, except that informa-
plies only to information— tion which deals with the existence, ab-
(i) Which was provided to or obtained
sence, or level of contaminants in
by EPA pursuant to a requirement of a
drinking water is not eligible for con-
regulation which was issued by EPA
fidential treatment. No information to
under the Act for the purpose of—
(A) Assisting the Administrator in which this section applies is volun-
establishing regulations under the Act; tarily submitted information.
(B) Determining whether the person (f) Nondisclosure for reasons other than
providing the information has acted or business confidentiality or where disclo-
is acting in compliance with the Act; sure is prohibited by other statute. Sec-
or tion 2.210 applies to information to
(C) Administering any program of fi- which this section applies, except that
nancial assistance under the Act; and information which deals with the exist-
(ii) Which was provided by a person— ence, absence, or level of contaminants
(A) Who is a supplier of water, as de- in drinking water shall be available to
fined in section 1401(5) of the Act, 42 the public notwithstanding any other
U.S.C. 300f(5); provision of this part.
(B) Who is or may be subject to a pri- (g) Disclosure of information relevant to
mary drinking water regulation under a proceeding. (1) Under section 1445(d) of
section 1412 of the Act, 42 U.S.C. 300g– the Act, any information to which this
1; section applies may be released by EPA
(C) Who is or may be subject to an because of the relevance of the infor-
applicable underground injection con- mation to a proceeding, notwith-
trol program, as defined in section standing the fact that the information
1422(d) of the Act, 42 U.S.C.300h–1(d); otherwise might be entitled to con-
(D) Who is or may be subject to the fidential treatment under this subpart.
permit requirements of section 1424(b) Release of information to which this
of the Act, 42 U.S.C. 300h–3(b); section applies because of its relevance
(E) Who is or may be subject to an to a proceeding shall be made only in
order issued under section 1441(c) of the accordance with this paragraph (g).
Act, 42 U.S.C. 300j(c); or
(2)–(4) The provisions of § 2.301(g) (2),
(F) Who is a grantee, as defined in
(3), (4) are incorporated by reference as
section 1445(e) of the Act, 42 U.S.C.
paragraphs (g) (2), (3), and (4), respec-
300j–4(e).
tively, of this section.
(2) This section applies to any infor-
mation which is described by para- (h) Disclosure to authorized representa-
graph (b)(1) of this section if it was pro- tives. (1) Under section 1445(d) of the
vided in response to a request by EPA Act, EPA possesses authority to dis-
or its authorized representative (or by close to any authorized representative
a State agency administering any proof the United States any information
gram under the Act) made for any pur- to which this section applies, notwith-
pose stated in paragraph (b)(1) of this standing the fact that the information
section, or if its submission could have otherwise might be entitled to con-
been required under section 1445 of the fidential treatment under this subpart.
Act, 42 U.S.C. 300j–4, regardless of Such authority may be exercised only
whether such section was cited in any in accordance with paragraph (h)(2) or
request for the information, or whether (h)(3) of this section.
the information was provided directly (2)–(3) The provisions of § 2.301(h) (2)
to EPA or through some third person. and (3) are incorporated by reference as
59
§ 2.305 40 CFR Ch. I (7–1–00 Edition)
paragraphs (h) (2) and (3), respectively, to which this section applies; however,
of this section. no information to which this section
applies is voluntarily submitted infor-
FR 40003, Sept. 8, 1978] mation.
(f) [Reserved]
§ 2.305 Special rules governing certain (g) Disclosure of information relevant in
information obtained under the a proceeding. (1) Under sections 3007(b)
Solid Waste Disposal Act, as amend- and 9005(b) of the Act (42 U.S.C. 6927(b)
ed. and 6995(b)), any information to which
(a) Definitions. For purposes of this this section applies may be disclosed
section: by EPA because of the relevance of the
(1) Act means the Solid Waste Dis- information in a proceeding under the
posal Act, as amended, including Act, notwithstanding the fact that the
amendments made by the Resource information otherwise might be enti-
Conservation and Recovery Act of 1976, tled to confidential treatment under
as amended, 42 U.S.C. 6901 et seq. this subpart. Disclosure of information
(2) Person has the meaning given it in to which this section applies because of
section 1004(15) of the Act, 42 U.S.C. its relevance in a proceeding shall be
6903(15). made only in accordance with this
(3) Hazardous waste has the meaning paragraph (g).
given it in section 1004(5) of the Act, 42 (2)–(4) The provisions of § 2.301(g) (2),
U.S.C. 6903(5). (3), and (4) are incorporated by ref-
(4) Proceeding means any rulemaking, erence as paragraphs (g) (2), (3), and (4),
adjudication, or licensing conducted by respectively, of this section.
EPA under the Act or under regula- (h) Disclosure to authorized representa-
tions which implement the Act includ- tives. (1) Under sections 3001(b)(3)(B),
ing the issuance of administrative or- 3007(b), and 9005(b) of the Act (42 U.S.C.
ders and the approval or disapproval of 6921(b)(3)(B), 6927(b), and 6995(b)), EPA
plans (e.g. closure plans) submitted by possesses authority to disclose to any
persons subject to regulation under the authorized representative of the United
Act, but not including determinations States any information to which this
under this subpart. section applies, notwithstanding the
(b) Applicability. This section applies fact that the information might other-
to information provided to or obtained wise be entitled to confidential treat-
by EPA under section 3001(b)(3)(B), ment under this subpart. Such author-
3007, or 9005 of the Act, 42 U.S.C ity may be exercised only in accord-
6921(b)(3)(B), 6927, or 6995. Information ance with paragraph (h)(2) or (h)(3) of
will be considered to have been pro- this section.
vided or obtained under sections (2)–(3) The provisions of § 2.301(h) (2)
3001(b)(3)(B), 3007, or 9005 of the Act if and (3) are incorporated by reference as
it was provided in response to a request paragraphs (h) (2) and (3), respectively,
from EDA made for any of the purposes of this section.
stated in the Act or if its submission (4) At the time any information is
could have been required under those furnished to a contractor, subcon-
provisions of the Act regardless of tractor, or State or local government
whether a specific section was cited as agency under this paragraph (h), the
the authority for any request for the EPA office furnishing the information
information or whether the informa- to the contractor, subcontractor, or
tion was provide directly to EPA or State or local government agency shall
through some third person. notify the contractor, subcontractor,
(c) Basic rules which apply without or State or local government agency
change. Sections 2.201 through 2.207 and that the information may be entitled
2.209 through 2.215 apply without to confidential treatment and that any
change to information to which this knowing and willful disclosure of the
section applies. information may subject the con-
(d) [Reserved] tractor, subcontractor, or State or
(e) Substantive criteria for use in con- local government agency and its em-
fidentiality determinations. Section 2.208 ployees to penalties in section
applies without change to information 3001(b)(3)(B), 3007(b)(2), or 9005(b)(1) of
60
the Act (42 U.S.C. 6921(b)(3)(B), 6927(b), by any of the chemical substances in
or 6995(b)). the mixture.
(4) [Reserved]
FR 51662, Dec. 18, 1985] (5) Mixture has the meaning given it
in section 3(8) of the Act, 15 U.S.C.
§ 2.306 Special rules governing certain 2602(8).
information obtained under the (6) Proceeding means any rulemaking,
Toxic Substances Control Act. adjudication, or licensing conducted by
(a) Definitions. For the purposes of EPA under the Act or under regula-
this section: tions which implement the Act, except
(1) Act means the Toxic Substances for determinations under this subpart.
Control Act, 15 U.S.C. 2601 et seq. (b) Applicability. This section applies
(2) Chemical substance has the mean- to all information submitted to EPA
ing given it in section 3(2) of the Act, for the purpose of satisfying some re-
15 U.S.C. 2602(2). quirement or condition of the Act or of
(3)(i) Health and safety data means the regulations which implement the Act,
information described in paragraphs including information originally sub-
(a)(3)(i) (A), (B), and (C) of this section mitted to EPA for some other purpose
with respect to any chemical substance and either relied upon to avoid some
or mixture offered for commercial dis- requirement or condition of the Act or
tribution (including for test marketing incorporated into a submission in order
purposes and for use in research and to satisfy some requirement or condi-
development), any chemical substance tion of the Act or of regulations which
included on the inventory of chemical implement the Act. Information will be
substances under section 8 of the Act considered to have been provided under
(15 U.S.C. 2607), or any chemical sub- the Act if the information could have
stance or mixture for which testing is been obtained under authority of the
required under section 4 of the Act (15 Act, whether the Act was cited as au-
U.S.C. 2603) or for which notification is thority or not, and whether the infor-
required under section 5 of the Act (15 mation was provided directly to EPA
U.S.C. 2604). or through some third person.
(A) Any study of any effect of a (c) Basic rules which apply without
chemical substance or mixture on change. Sections 2.201 through 2.203,
health, on the environment, or on both, 2.206, 2.207, and 2.210 through 2.215
including underlying data and epide- apply without change to information
miological studies; studies of occupa- to which this section applies.
tional exposure to a chemical sub- (d) Initial action by EPA office. Sec-
stance or mixture; and toxicological, tion 2.204 applies to information to
clinical, and ecological studies of a which this section applies, except that
chemical substance or mixture; the provisions of paragraph (e)(3) of
(B) Any test performed under the this section regarding the time allowed
Act; and for seeking judicial review shall be re-
(C) Any data reported to, or other- flected in any notice furnished to a
wise obtained by, EPA from a study de- business under § 2.204(d)(2).
scribed in paragraph (a)(3)(i)(A) of this (e) Final confidentiality determination
section or a test described in paragraph by EPA legal office. Section 2.205 applies
(a)(3)(i)(B) of this section. to information to which this section
(ii) Notwithstanding paragraph applies, except that—
(a)(3)(i) of this section, no information (1) Notwithstanding § 2.205(i), the
shall be considered to be health and General Counsel (or his designee), rath-
safety data if disclosure of the informa- er than the regional counsel, shall
tion would— make the determinations and take the
(A) In the case of a chemical sub- actions required by § 2.205;
stance or mixture, disclose processes (2) In addition to the statement pre-
used in the manufacturing or proc- scribed by the second sentence of
essing the chemical substance or mix- § 2.205(f)(2), the notice of denial of a
ture or, business confidentiality claim shall
(B) In the case of a mixture, disclose state that under section 20(a) of the
the portion of the mixture comprised Act, 15 U.S.C. 2619, the business may
61
§ 2.306 40 CFR Ch. I (7–1–00 Edition)
commence an action in an appropriate may be disclosed by EPA when the in-

Federal district court to prevent dis- formation is relevant in a proceeding
closure. under the Act, notwithstanding the
(3) The following sentence is sub- fact that the information otherwise
stituted for the third sentence of might be entitled to confidential treat-
§ 2.205(f)(2): ‘‘With respect to EPA’s im- ment under this subpart. However, any
plementation of the determination, the such disclosure shall be made in a man-
notice shall state that (subject to ner that preserves the confidentiality
§ 2.210) EPA will make the information of the information to the extent prac-
available to the public on the thirty- ticable without impairing the pro-
first (31st) calendar day after the date ceeding. Disclosure of information to
of the business’ receipt of the written which this section applies because of
notice (or on such later date as is es- its relevance in a proceeding shall be
tablished in lieu thereof under para- made only in accordance with this
graph (f)(3) of this section), unless the paragraph (i).
EPA legal office has first been notified (2)–(4) The provisions of § 2.301(g) (2),
of the business’ commencement of an (3), and (4) are incorporated by ref-
action in a Federal court to obtain ju- erence as paragraphs (i) (2), (3), and (4),
dicial review of the determination and respectively, of this section.
to obtain preliminary injunctive relief (j) Disclosure of information to contrac-
against disclosure.’’; and tors and subcontractors. (1) Under sec-
(4) Notwithstanding § 2.205(g), the 31 tion 14(a)(2) of the Act (15 U.S.C.
calendar day period prescribed by 2613(a)(2)), any information to which
§ 2.205(f)(2), as modified by paragraph this section applies may be disclosed
(e)(3) of this section, shall not be short- by EPA to a contractor or subcon-
ened without the consent of the busi- tractor of the United States per-
ness. forming work under the Act, notwith-
(f) [Reserved] standing the fact that the information
(g) Substantive criteria for use in con- otherwise might be entitled to con-
fidentiality determinations. Section 2.208 fidential treatment under this subpart.
applies without change to information Subject to the limitations in this para-
to which this section applies, except graph (j), information to which this
that health and safety data are not eli- section applies may be disclosed:
gible for confidential treatment. No in- (i) To a contractor or subcontractor
formation to which this section applies with EPA, if the EPA program office
is voluntarily submitted information. managing the contract first determines
(h) Disclosure in special circumstances. in writing that such disclosure is nec-
Section 2.209 applies to information to essary for the satisfactory performance
which this section applies, except that by the contractor or subcontractor of
the following two additional provisions the contract or subcontract; or
apply to § 2.209(c): (ii) To a contractor or subcontractor
(1) The official purpose for which the with an agency other than EPA, if the
information is needed must be in con- EPA program office which provides the
nection with the agency’s duties under information to that agency, con-
any law for protection of health or the tractor, or subcontractor first deter-
environment or for specific law en- mines in writing, in consultation with
forcement purposes; and the General Counsel, that such disclo-
(2) EPA notifies the other agency sure is necessary for the satisfactory
that the information was acquired performance by the contractor or sub-
under authority of the Act and that contractor of the contract or sub-
any knowing disclosure of the informa- contract.
tion may subject the officers and em- (2)–(4) The provisions of § 2.301(h)(2)
ployees of the other agency to the pen- (ii), (iii), and (iv) are incorporated by
alties in section 14(d) of the Act (15 reference as paragraphs (j) (2), (3), and
U.S.C. 2613(d)). (4), respectively, of this section.
(i) Disclosure of information relevant in (5) At the time any information is
a proceeding. (1) Under section 14(a)(4) furnished to a contractor or subcon-
of the Act (15 U.S.C. 2613(a)(4)), any in- tractor under this paragraph (j), the
formation to which this section applies EPA office furnishing the information
62
to the contractor or subcontractor mination in writing whether disclosure

shall notify the contractor or subcon- of information to which this section
tractor that the information was ac- applies that otherwise might be enti-
quired under authority of the Act and tled to confidential treatment is nec-
that any knowing disclosure of the in- essary to protect health or the environ-
formation may subject the contractor ment against an unreasonable risk of
or subcontractor and its employees to injury. The General Counsel shall also
the penalties in section 14(d) of the Act determine the extent of disclosure nec-
(15 U.S.C. 2613(d)). essary to protect against the unreason-
(k) Disclosure of information when nec- able risk of injury as well as when the
essary to protect health or the environ- disclosure must be made to protect
ment against an unreasonable risk of in- against the unreasonable risk of in-
jury. (1) Under section 14(a)(3) of the jury.
Act (15 U.S.C 2613(a)(3)), any informa-
(4) If the General Counsel determines
tion to which this section applies may
that disclosure of information to which
be disclosed by EPA when disclosure is
this section applies that otherwise
necessary to protect health or the envi-
ronment against an unreasonable risk might be entitled to confidential treat-
of injury to health or the environment. ment is necessary to protect health or
However, any disclosure shall be made the environment against an unreason-
in a manner that preserves the con- able risk of injury, the General Counsel
fidentiality of the information to the shall furnish notice to each affected
extent not inconsistent with protecting business of the contemplated disclo-
health or the environment against the sure and of the General Counsel’s de-
unreasonable risk of injury. Disclosure termination. Such notice shall be made
of information to which this section in writing by certified mail, return re-
applies because of the need to protect ceipt requested, at least 15 days before
health or the environment against an the disclosure is to be made. The notice
unreasonable risk of injury shall be shall state the date upon which disclo-
made only in accordance with this sure will be made. However, if the Gen-
paragraph (k). eral Counsel determines that the risk
(2) If any EPA office determines that of injury is so imminent that it is im-
there is an unreasonable risk of injury practicable to furnish such notice 15
to health or the environment and that days before the proposed date of disclo-
to protect health or the environment sure, the General Counsel may provide
against the unreasonable risk of injury notice by means that will provide re-
it is necessary to disclose information ceipt of the notice by the affected busi-
to which this section applies that oth- ness at least 24 hours before the disclo-
erwise might be entitled to confiden- sure is to be made. This may be done
tial treatment under this subpart, the by telegram, telephone, or other rea-
EPA office shall notify the General sonably rapid means.
Counsel in writing of the nature of the
unreasonable risk of injury, the extent [43 FR 40003, Sept. 8, 1978, as amended at 44
of the disclosure proposed, how the pro- FR 17674, Mar. 23, 1979; 58 FR 462, Jan. 5, 1993]
posed disclosure will serve to protect
§ 2.307 Special rules governing certain
health or the environment against the information obtained under the
unreasonable risk of injury, and the Federal Insecticide, Fungicide and
proposed date of disclosure. Such noti- Rodenticide Act.
fication shall be made as soon as prac-
ticable after discovery of the unreason- (a) Definitions. For the purposes of
able risk of injury. If the EPA office this section;
determines that the risk of injury is so (1) Act means the Federal Insecticide,
imminent that it is impracticable to Fungicide and Rodenticide Act, as
furnish written notification to the amended, 7 U.S.C. 136 et seq., and its
General Counsel, the EPA office shall predecessor, 7 U.S.C. 135 et seq.
notify the General Counsel orally. (2) Applicant means any person who
(3) Upon receipt of notification under has submitted to EPA (or to a prede-
paragraph (k)(2) of this section, the cessor agency with responsibility for
General Counsel shall make a deter- administering the Act) a registration
63
§ 2.307 40 CFR Ch. I (7–1–00 Edition)
statement or application for registra- plementation of the determination, the

tion under the Act of a pesticide or of notice shall state that (subject to
an establishment. § 2.210) EPA will make the information
(3) Registrant means any person who available to the public on the thirty-
has obtained registration under the first (31st) calendar day after the date
Act of a pesticide or of an establish- of the business’s receipt of the written
ment. notice (or on such later date as is es-
(b) Applicability. This section applies tablished in lieu thereof under para-
to all information submitted to EPA graph (f)(3) of this section), unless the
by an applicant or registrant for the EPA legal office has first been notified
purpose of satisfying some requirement of the business’s commencement of an
or condition of the Act or of regula- action in a Federal court to obtain ju-
tions which implement the Act, includ- dicial review of the determination or
ing information originally submitted to obtain a declaratory judgment under
to EPA for some other purpose but in- section 10(c) of the Act and to obtain
corporated by the applicant or reg- preliminary injunctive relief against
istrant into a submission in order to disclosure.’’; and
satisfy some requirement or condition (4) Notwithstanding § 2.205(g), the 31
of the Act or of regulations which im- calendar day period prescribed by
plement the Act. This section does not § 2.205(f)(2), as modified by paragraph
apply to information supplied to EPA (e)(3) of this section, shall not be short-
by a petitioner in support of a petition ened without the consent of the busi-
for a tolerance under 21 U.S.C. 346a(d), ness.
unless the information is also described (f) [Reserved]
by the first sentence of this paragraph.
(g) Substantive criteria for use in con-
(c) Basic rules which apply without
fidentiality determinations. Section 2.208
change. Sections 2.201 through 2.203,
applies without change to information
2.206, 2.207, and 2.210 through 2.215
to which this section applies; however,
apply without change to information
no information to which this section
to which this section applies.
applies is voluntarily submitted infor-
(d) Initial action by EPA office. Sec-
tion 2.204 applies to information to mation.
which this section applies, except that (h) Disclosure in special circumstances.
the provisions of paragraph (e) of this (1) Section 2.209 applies without change
section regarding the time allowed for to information to which this section
seeking judicial review shall be re- applies. In addition, under section
flected in any notice furnished to a 12(a)(2)(D) of the Act, 7 U.S.C.
business under § 2.204(d)(2). 136j(a)(2)(D), EPA possesses authority
(e) Final confidentiality determination to disclose any information to which
by EPA legal office. Section 2.205 applies this section applies to physicians,
to information to which this section pharmacists, and other qualified per-
applies, except that— sons needing such information for the
(1) Notwithstanding § 2.205(i), the performance of their duties, notwith-
General Counsel (or his designee), rath- standing the fact that the information
er than the Regional Counsel, shall might otherwise be entitled to con-
make the determinations and take the fidential treatment under this subpart.
actions required by § 2.205; Such authority under section
(2) In addition to the statement pre- 12(a)(2)(D) of the Act may be exercised
scribed by the second sentence of only in accordance with paragraph
§ 2.205(f)(2), the notice of denial of a (h)(2) or (h)(3) of this section.
business confidentiality claim shall (2) Information to which this section
state that under section 10(c) of the applies may be disclosed (notwith-
Act, 7 U.S.C. 136h(c), the business may standing the fact that it might other-
commence an action in an appropriate wise be entitled to confidential treat-
Federal district court for a declaratory ment under this subpart) to physicians,
judgment; pharmacists, hospitals, veterinarians,
(3) The following sentence is sub- law enforcement personnel, or govern-
stituted for the third sentence of mental agencies with responsibilities
§ 2.205(f)(2): ‘‘With respect to EPA’s im- for protection of public health, and to
64
employees of any such persons or agen- petitioner, solely in support of a peti-

cies, or to other qualified persons, tion which has not been acted on by
when and to the extent that disclosure the publication by EPA of a regulation
is necessary in order to treat illness or establishing a tolerance for a pesticide
injury or to prevent imminent harm to chemical or exempting the pesticide
persons, property, or the environment, chemical from the necessity of a toler-
in the opinion of the Administrator or ance, as provided in section 408(d) (2) or
his designee. (3) of the Act, 21 U.S.C. 346a(d) (2) or
(3) Information to which this section (3).
applies may be disclosed (notwith- (2) Section 2.307, rather than this sec-
standing the fact that it otherwise tion, applies to information described
might be entitled to confidential treat- by the first sentence of § 2.307(b) (mate-
ment under this subpart) to a person rial incorporated into submissions in
under contract to EPA to perform order to satisfy the requirements of the
work for EPA in connection with the Federal Insecticide, Fungicide and
Act or regulations which implement Rodenticide Act, as amended), even
the Act, if the EPA program office though such information was origi-
managing the contract first determines nally submitted by a petitioner in sup-
in writing that such disclosure is nec- port of a petition.
essary in order that the contractor (3) This section does not apply to in-
may carry out the work required by formation gathered by EPA under a
the contract. Any such disclosure to a proceeding initiated by EPA to estab-
contractor shall be made only in ac- lish a tolerance under section 408(e) of
cordance with the procedure and re- the Act, 21 U.S.C. 346a(e).
quirements of § 2.301(h)(2) (ii) through (c) Basic rules which apply without
(iv). change. Sections 2.201, 2.202, 2.206, 2.207,
(4) Information to which this section and 2.210 through 2.215 apply without
applies, and which relates to formulas change to information to which this
of products, may be disclosed at any section applies.
public hearing or in findings of fact (d) Effect of submission of information
issued by the Administrator, to the ex- without claim. Section 2.203 (a) and (b)
tent and in the manner authorized by apply without change to information
the Administrator or his designee. to which this section applies. Section
2.203(c), however, does not apply to in-
FR 40005, Sept. 8, 1978] formation to which this section ap-
plies. A petitioner’s failure to assert a
§ 2.308 Special rules governing certain claim when initially submitting a peti-
information obtained under the tion shall not constitute a waiver of
Federal Food, Drug and Cosmetic any claim the petitioner may have.
Act. (e) Initial action by EPA office. Section
(a) Definitions. For the purposes of 2.204 applies to information to which
this section: this section applies, except that—
(1) Act means the Federal Food, Drug (1) Unless the EPA office has on file
and Cosmetic Act, as amended, 21 a written waiver of a petitioner’s
U.S.C. 301 et seq. claim, a petitioner shall be regarded as
(2) Petition means a petition for the an affected business, a petition shall be
issuance of a regulation establishing a treated as if it were covered by a busi-
tolerance for a pesticide chemical or ness confidentiality claim, and an EPA
exempting the pesticide chemical from office acting under § 2.204(d) shall de-
the necessity of a tolerance, pursuant termine that the information in the pe-
to section 408(d) of the Act, 21 U.S.C. tition is or may be entitled to con-
346a(d). fidential treatment and shall take ac-
(3) Petitioner means a person who has tion in accordance with § 2.204(d)(1);
submitted a petition to EPA (or to a (2) In addition to other required pro-
predecessor agency). visions of any notice furnished to a pe-
(b) Applicability. (1) This section ap- titioner under § 2.204(e), such notice
plies only to business information sub- shall state that—
mitted to EPA (or to an advisory com- (i) Section 408(f) of the Act, 21 U.S.C.
mittee established under the Act) by a 346a(f), affords absolute confidentiality
65
§ 2.308 40 CFR Ch. I (7–1–00 Edition)
to information to which this section first (31st) calendar day after the
applies, but after publication by EPA business’s receipt of the written notice
of a regulation establishing a tolerance (or on such later date as is established
(or exempting the pesticide chemical in lieu thereof under paragraph (f)(3) of
from the necessity of a tolerance) nei- this section), unless the EPA legal of-
ther the Act nor this section affords fice has first been notified of the
any protection to the information; business’s commencement of an action
(ii) Information submitted in support in a Federal court to obtain judicial re-
of a petition which is also incorporated view of the determination and to ob-
into a submission in order to satisfy a tain preliminary injunctive relief
requirement or condition of the Fed- against disclosure; provided, that the
eral Insecticide, Fungicide and information will not be made available
Rodenticide Act, as amended, 7 U.S.C. to the public for so long as it is enti-
136 et seq., is regarded by EPA as being tled to confidential treatment under
governed, with respect to business con-
section 408(f) of the Federal Food, Drug
fidentiality, by § 2.307 rather than by
and Cosmetic Act, 21 U.S.C. 346a(f).’’;
this section;
and
(iii) Although it appears that this
section may apply to the information (3) Notwithstanding § 2.205(g), the 31
at this time, EPA is presently engaged calendar day period prescribed by
in determining whether for any reason § 2.205(f)(2), as modified by paragraph
the information is entitled to confiden- (f)(2) of this section, shall not be short-
tial treatment or will be entitled to ened without the consent of the busi-
such treatment if and when this sec- ness.
tion no longer applies to the informa- (g) [Reserved]
tion; and (h) Substantive criteria for use in con-
(iv) Information determined by EPA fidentiality determinations. Section 2.208
to be covered by this section will not does not apply to information to which
be disclosed for as long as this section this section applies. Such information
continues to apply, but will be made shall be determined to be entitled to
available to the public thereafter (sub- confidential treatment for so long as
ject to § 2.210) unless the business fur- this section continues to apply to it.
nishes timely comments in response to (i) Disclosure in special circumstances.
the notice. (1) Section 2.209 applies to information
(f) Final confidentiality determination to which this section applies. In addi-
by EPA legal office. Section 2.205 applies tion, under Section 408(f) of the Act, 21
to information to which this section U.S.C. 346a(f), EPA is authorized to dis-
applies, except that— close the information to other persons.
(1) Notwithstanding § 2.205(i), the
Such authority under section 408(f) of
General Counsel or his designee, rather
the Act may be exercised only in ac-
than the Regional counsel, shall in all
cordance with paragraph (i)(2) or (i)(3)
cases make the determinations and
take the actions required by § 2.205; of this section.
(2) In addition to the circumstances (2) Information to which this section
mentioned in § 2.205(f)(1), notice in the applies may be disclosed (notwith-
form prescribed by § 2.205(f)(2) shall be standing the fact that it otherwise
furnished to each affected business might be entitled to confidential treat-
whenever information is found to be ment under this subpart) to a person
entitled to confidential treatment under contract to EPA to perform
under section 408(f) of the Act but not work for EPA in connection with the
otherwise entitled to confidential Act, with the Federal Insecticide, Fun-
treatment. With respect to such cases, gicide, and Rodenticide Act, as amend-
the following sentences shall be sub- ed, or regulations which implement ei-
stituted for the third sentence of ther such Act, if the EPA program of-
§ 2.205(f)(2): ‘‘With respect to EPA’s im- fice managing the contract first deter-
plementation of the determination, the mines in writing that such disclosure is
notice shall state that (subject to necessary in order that the contractor
§ 2.210) EPA will make the information may carry out the work required by
available to the public on the thirty- the contract. Any such disclosure to a
66
contractor shall be made only in ac- (2) Person has the meaning given it in
cordance with the procedures and re- section 101(21) of the Act, 42 U.S.C.
quirements of § 2.301(h)(2) (ii) through 9601(21).
(iv). (3) Facility has the meaning given it
(3) Information to which this section in section 101(9) of the Act, 42 U.S.C.
applies may be disclosed by EPA to an 9601(9).
advisory committee in accordance with (4) Hazardous substance has the mean-
section 408(d) of the Act, 21 U.S.C. ing given it in section 101(14) of the
346a(d). Act, 42 U.S.C. 9601(14).
(5) Release has the meaning given it
in section 101(22) of the Act, 42 U.S.C.
FR 40005, Sept. 8, 1978]
9601(22).
§ 2.309 Special rules governing certain (6) Proceeding means any rulemaking
information obtained under the Ma- or adjudication conducted by EPA
rine Protection, Research and Sanc- under the Act or under regulations
tuaries Act of 1972. which implement the Act (including
(a) Definitions. For the purposes of the issuance of administrative orders
this section: under section 106 of the Act and cost
recovery pre-litigation settlement ne-
(1) Act means the Marine Protection,
gotiations under sections 107 or 122 of
Research and Sanctuaries Act of 1972,
the Act), any cost recovery litigation
33 U.S.C. 1401 et seq.
under section 107 of the Act, or any ad-
(2) Permit means any permit applied
ministrative determination made
for or granted under the Act.
under section 104 of the Act, but not in-
(3) Application means an application cluding determinations under this sub-
for a permit. part.
(b) Applicability. This section applies (b) Applicability. This section applies
to all information provided to or ob- only to information provided to or ob-
tained by EPA as a part of any applica- tained by EPA under section 104 of the
tion or in connection with any permit. Act, 42 U.S.C. 9604, by or from any per-
(c) Basic rules which apply without son who stores, treats, or disposes of
change. Sections 2.201 through 2.207 and hazardous wastes; or where necessary
2.209 through 2.215 apply without to ascertain facts not available at the
change to information to which this facility where such hazardous sub-
section applies. stances are located, by or from any
(d) Substantive criteria for use in con- person who generates, transports, or
fidentiality determinations. Section 2.208 otherwise handles or has handled haz-
does not apply to information to which ardous substances, or by or from any
this section applies. Pursuant to sec- person who performs or supports re-
tion 104(f) of the Act, 33 U.S.C. 1414(f), moval or remedial actions pursuant to
no information to which this section section 104(a) of the Act. Information
applies is eligible for confidential will be considered to have been pro-
treatment. vided or obtained under section 104 of
[41 FR 36902, Sept. 1, 1976, as amended at 43 the Act if it was provided in response
FR 40005, Sept. 8, 1978] to a request from EPA or a representa-
tive of EPA made for any of the pur-
§ 2.310 Special rules governing certain poses stated in section 104, if it was
information obtained under the provided pursuant to the terms of a
Comprehensive Environmental Re- contract, grant or other agreement to
sponse, Compensation, and Liabil- perform work pursuant to section 104,
ity Act of 1980, as amended. or if its submission could have been re-
(a) Definitions. For purposes of this quired under section 104, regardless of
section: whether section 104 was cited as au-
(1) Act means the Comprehensive En- thority for any request for the infor-
vironmental Response, Compensation, mation or whether the information was
and Liability Act of 1980, as amended, provided directly to EPA or through
including amendments made by the some third person.
Superfund Amendments and Reauthor- (c) Basic rules which apply without
ization Act of 1986, 42 U.S.C. 9601, et seq. change. Sections 2.201 through 2.207 and
67
§ 2.310 40 CFR Ch. I (7–1–00 Edition)
§§ 2.209 through 2.215 apply without presiding officer determines in writing

change to information to which this that the information is relevant to a
section applies. matter in controversy in the pro-
(d) [Reserved] ceeding. The presiding officer may con-
(e) Substantive criteria for use in condition disclosure of the information to
fidentiality determinations. Section 2.208 a party of record on the making of such
applies without change to information protective arrangements and commit-
to which this section applies; however, ments as he finds to be warranted. Dis-
no information to which this section closure to one or more parties of
applies is voluntarily submitted infor- record, under protective arrangements
mation. or commitments, shall not, of itself, af-
(f) [Reserved] fect the eligibility of information for
(g)(1) Under section 104(e)(7)(A) of the confidential treatment under the other
Act (42 U.S.C. 9604(e)(7)(A)) any infor- provisions of this subpart. Any affected
mation to which this section applies
business shall be given at least 5 days
may be disclosed by EPA because of
notice by the presiding officer prior to
the relevance of the information in a
making the information available to
proceeding under the Act, notwith-
standing the fact that the information the public or to one or more of the par-
otherwise might be entitled to con- ties of record to the proceeding.
fidential treatment under this subpart. (4) In connection with any proceeding
Disclosure of information to which this involving a decision by a presiding offi-
section applies because of its relevance cer after an evidentiary or adjudica-
in a proceeding shall be made only in tory hearing, except with respect to
accordance with this paragraph (g). litigation conducted by a Federal
(2) The provisions of § 2.301(g)(2) are court, information to which this sec-
to be used as paragraph (g)(2) of this tion applies which may be entitled to
section. confidential treatment may be made
(3) In connection with any proceeding available to one or more parties of
involving a decision by a presiding offi- record to the proceeding, upon request
cer after an evidentiary or adjudica- of a party, under this paragraph (g)(4).
tory hearing, except with respect to A party of record seeking disclosure of
litigation conducted by a Federal information shall direct his request to
court, information to which this sec- the presiding officer. Upon receipt of
tion applies which may be entitled to such a request, the presiding officer
confidential treatment may be made shall notify each affected business that
available to the public, or to one or disclosure under this paragraph (g)(4)
more parties of record to the pro- has been requested, and shall afford
ceeding, upon EPA’s initiative, under each such business a period for com-
this paragraph (g)(3). An EPA office ment found by the presiding officer to
proposing disclosure of information be reasonable under the circumstances.
under this paragraph (g)(3) shall so no- Information may be disclosed to a
tify the presiding officer in writing. party of record under this paragraph
Upon receipt of such a notification, the
(g)(4) only if, after consideration of any
presiding officer shall notify each af-
timely comments submitted by the
fected business that disclosure under
business, the presiding officer deter-
this paragraph (g)(3) has been proposed,
and shall afford each such business a mines in writing that:
period for comment found by the pre- (i) The party of record has satisfac-
siding officer to be reasonable under torily shown that with respect to a sig-
the circumstances. Information may be nificant matter which is in controversy
disclosed under this paragraph (g)(3) in the proceeding, the party’s ability to
only if, after consideration of any participate effectively in the pro-
timely comments submitted by the ceeding will be significantly impaired
business, the EPA office determines in unless the information is disclosed to
writing that, for reasons directly asso- him; and
ciated with the conduct of the pro- (ii) Any harm to an affected business
ceeding, the contemplated disclosure that would result from the disclosure is
would serve the public interest, and the likely to be outweighed by the benefit
68
to the proceeding and the public inter- (3) The provisions of § 2.301(h)(3) are
est that would result from the disclo- to be used as paragraph (h)(3) of this
sure. section.
The presiding officer may condition (4) At the time any information is
disclosure of the information to a furnished to a contractor, subcon-
party of record on the making of such tractor, or State or local government
protective arrangements and commit- under this paragraph (h), the EPA of-
ments as he finds to be warranted. Dis- fice furnishing the information to the
closure to one or more parties of contractor, subcontractor, or State or
record, under protective arrangements local government agency shall notify
or commitments, shall not, of itself, af- the contractor, subcontractor, or State
fect the eligibility of information for or local government agency that the
confidential treatment under the other information may be entitled to con-
provisions of this subpart. Any affected fidential treatment and that any know-
business shall be given at least 5 days ing and willful disclosure of the infor-
notice by the presiding officer prior to mation may subject the contractor,
making the information available to subcontractor, or State or local gov-
one or more of the parties of record to ernment agency and its employees to
the proceeding. penalties in section 104(e)(7)(B) of the
(5) In connection with cost recovery Act (42 U.S.C. 9604(e)(7)(B)).
pre-litigation settlement negotiations [50 FR 51663, Dec. 18, 1985, as amended at 58
under sections 107 or 122 of the Act (42 FR 462, Jan. 5, 1993]
U.S.C. 9607, 9622), any information to
which this section applies that may be § 2.311 Special rules governing certain
entitled to confidential treatment may information obtained under the
be made available to potentially re- Motor Vehicle Information and Cost
sponsible parties pursuant to a con- Savings Act.
tractual agreement to protect the in- (a) Definitions. For the purposes of
formation. this section:
(6) In connection with any cost recov- (1) Act means the Motor Vehicle In-
ery proceeding under section 107 of the formation and Cost Savings Act, as
Act involving a decision by a presiding amended, 15 U.S.C. 1901 et seq.
officer after an evidentiary or adju- (2) Average fuel economy has the
dicatory hearing, any information to meaning given it in section 501(4) of the
which this section applies that may be Act, 15 U.S.C. 2001(4).
entitled to confidential treatment may (3) Fuel economy has the meaning
be made available to one or more par- given it in section 501(6) of the Act, 15
ties of record to the proceeding, upon U.S.C. 2001(6).
EPA’s initiative, under this paragraph (4) Fuel economy data means any
(g)(6). Such disclosure must be made measurement or calculation of fuel
pursuant to a stipulation and protec- economy for any model type and aver-
tive order signed by all parties to age fuel economy of a manufacturer
whom disclosure is made and by the under section 503(d) of the Act, 15
presiding officer. U.S.C. 2003(d).
(h) Disclosure to authorized representa- (5) Manufacturer has the meaning
tives. (1) Under section 104(e)(7) of the given it in section 501(9) of the Act, 15
Act (42 U.S.C. 9604(e)(7)), EPA possesses U.S.C. 2001(9).
authority to disclose to any authorized (6) Model type has the meaning given
representative of the Untied States any it in section 501(11) of the Act, 15 U.S.C.
information to which this section ap- 2001(11).
plies, notwithstanding the fact that (b) Applicability. This section applies
the information might otherwise be en- only to information provided to or ob-
titled to confidential treatment under tained by EPA under Title V, Part A of
this subpart. Such authority may be the Act, 15 U.S.C. 2001 through 2012. In-
exercised only in accordance with para- formation will be considered to have
graph (h)(2) or (h)(3) of this section. been provided or obtained under Title
(2) The provisions of § 2.301(h)(2) are V, Part A of the Act if it was provided
to be used as paragraph (h)(2) of this in response to a request from EPA
section. made for any purpose stated in Title V,
69
§ 2.401 40 CFR Ch. I (7–1–00 Edition)
Part A, or if its submission could have SOURCE: 50 FR 32387, Aug. 9, 1985, unless
been required under Title V Part A, re- otherwise noted.
gardless of whether Title V Part A was
cited as the authority for any request § 2.401 Scope and purpose.
for information or whether the infor- This subpart sets forth procedures to
mation was provided directly to EPA be followed when an EPA employee is
or through some third person. requested or subpoenaed to provide tes-
(c) Basic rules which apply without timony concerning information ac-
change. Sections 2.201 through 2.207 and quired in the course of performing offi-
§§ 2.209 through 2.215 apply without cial duties or because of the employee’s
change to information to which this official status. (In such cases, employ-
section applies. ees must state for the record that their
(d) [Reserved] testimony does not necessarily rep-
(e) Substantive criteria for use in con- resent the official position of EPA. If
fidentiality determinations. Section 2.208 they are called to state the official po-
applies without change to information sition of EPA, they should ascertain
to which this section applies, except that position before appearing.) These
that information this is fuel economy procedures also apply to subpoenas
data is not eligible for confidential duces tecum for any document in the
treatment. No information to which possession of EPA and to requests for
this section applies is voluntarily sub- certification of copies of documents.
mitted information. (a) These procedures apply to:
(f) [Reserved] (1) State court proceedings (including
(g) Disclosure of information relevant to grand jury proceedings);
a proceeding. (1) Under section 505(d)(1) (2) Federal civil proceedings, except
of the Act, any information to which where the United States, EPA or an-
this section applies may be released by other Federal agency is a party; and
EPA because of the relevance of the in- (3) State and local legislative and ad-
formation to a proceeding under Title ministrative proceedings.
V, Part A of the Act, notwithstanding (b) These procedures do not apply:
the fact that the information otherwise (1) To matters which are not related
might be entitled to confidential treat- to EPA;
ment under this subpart. Release of in- (2) To Congressional requests or sub-
formation to which this section applies poenas for testimony or documents;
because of its relevance to a proceeding (3) Where employees provide expert
shall be made only in accordance with witness services as approved outside
this paragraph (g). activities in accordance with 40 CFR
(2) The provisions of § 2.301(g)(2) are part 3, subpart E (in such cases, em-
to be used as paragraph (g)(2) of this ployees must state for the record that
section. the testimony represents their own
(3) The provisions of § 2.301(g)(3) are views and does not necessarily rep-
to be used as paragraph (g)(3) of this resent the official position of EPA);
section. (4) Where employees voluntarily tes-
(4) The provisions of § 2.301(g)(4) are tify as private citizens with respect to
to be used as paragraph (g)(3) of this environmental matters (in such cases,
section. employees must state for the record
that the testimony represents their
[50 FR 51663, Dec. 18, 1985]
own views and does not necessarily rep-
resent the official position of EPA).
Subpart C—Testimony by Employ- (c) The purpose of this subpart is to
ees and Production of Docu- ensure that employees’ official time is
ments in Civil Legal Pro- used only for official purposes, to
ceedings Where the United maintain the impartiality of EPA
States Is Not a Party among private litigants, to ensure that
public funds are not used for private
AUTHORITY: 5 U.S.C. 301; Reorganization purposes and to establish procedures
Plan No. 3 of 1970, 5 U.S.C. App.; 33 U.S.C. for approving testimony or production
361(a); 42 U.S.C. 300j–9; 42 U.S.C. 6911a, 42 of documents when clearly in the inter-
U.S.C. 7601(a). ests of EPA.
70
§ 2.402 Policy on presentation of testi- ministrator or Staff Office Director,

mony and production of documents. determines whether compliance with
(a) With the approval of the cog- the subpoena would clearly be in the
nizant Assistant Administrator, Office interests of EPA and responds as soon
Director, Staff Office Director or Re- as practicable.
gional Administrator or his designee, (b) If the General Counsel or his des-
EPA employees (as defined in 40 CFR ignee denies approval to comply with
3.102 (a) and (b)) may testify at the re- the subpoena, or if he has not acted by
quest of another Federal agency, or, the return date, the employee must ap-
where it is in the interests of EPA, at pear at the stated time and place (un-
the request of a State or local govern- less advised by the General Counsel or
ment or State legislative committee. his designee that the subpoena was not
(b) Except as permitted by paragraph validly issued or served or that the
(a) of this section, no EPA employee subpoena has been withdrawn), produce
may provide testimony or produce doc- a copy of these regulations and respect-
uments in any proceeding to which this fully refuse to provide any testimony
subpart applies concerning information
or produce any documents. United
acquired in the course of performing
States ex rel. Touhy v. Ragen, 340 U.S.
official duties or because of the em-
ployee’s official relationship with EPA, 462 (1951).
unless authorized by the General Coun- (c) Where employees in the Office of
sel or his designee under §§ 2.403 Inspector General are subpoenaed, the
through 2.406. Inspector General or his designee
makes the determination under para-
§ 2.403 Procedures when voluntary tes- graphs (a) and (b) of this section in
timony is requested. consultation with the General Counsel.
A request for testimony by an EPA (d) The General Counsel will request
employee under § 2.402(b) must be in the assistance of the Department of
writing and must state the nature of Justice or a U.S. Attorney where nec-
the requested testimony and the rea- essary to represent the interests of the
sons why the testimony would be in the Agency and the employee.
interests of EPA. Such requests are im-
mediately sent to the General Counsel § 2.405 Subpoenas duces tecum.
or his designee (or, in the case of em- Subpoenas duces tecum for documents
ployees in the Office of Inspector Gen- or other materials are treated the same
eral, the Inspector General or his des-
as subpoenas for testimony. Unless the
ignee) with the recommendations of
General Counsel or his designee, in
the employee’s supervisors. The Gen-
consultation with the appropriate As-
eral Counsel or his designee, in con-
sistant Administrator, Regional Ad-
sultation with the appropriate Assist-
ant Administrator, Regional Adminis- ministrator or Staff Office Director
trator, or Staff Office Director (or, in (or, as to employees in the Office of In-
the case of employees in the Office of spector General, the Inspector General)
Inspector General, the Inspector Gen- determines that compliance with the
eral or his designee), determines subpoena is clearly in the interests of
whether compliance with the request EPA, the employee must appear at the
would clearly be in the interests of stated time and place (unless advised
EPA and responds as soon as prac- by the General Counsel or his designee
ticable. that the subpoena was not validly
issued or served or that the subpoena
§ 2.404 Procedures when an employee has been withdrawn) and respectfully
is subpoenaed. refuse to produce the subpoenaed mate-
(a) Copies of subpoenas must imme- rials. However, where a subpoena duces
diately be sent to the General Counsel tecum is essentially a written request
or his designee with the recommenda- for documents, the requested docu-
tions of the employee’s supervisors. ments will be provided or denied in ac-
The General Counsel or his designee, in cordance with subparts A and B of this
consultation with the appropriate As- part where approval to respond to the
sistant Administrator, Regional Ad- subpoena has not been granted.
71
§ 2.406 40 CFR Ch. I (7–1–00 Edition)
§ 2.406 Requests for authenticated cop- 6.101 Definitions.

ies of EPA documents. 6.102 Applicability.
6.103 Responsibilities.
Requests for authenticated copies of 6.104 Early involvement of private parties.
EPA documents for purposes of admis- 6.105 Synopsis of environmental review pro-
sibility under 28 U.S.C. 1733 and Rule 44 cedures.
of the Federal Rules of Civil Procedure 6.106 Deviations.
will be granted for documents which 6.107 Categorical exclusions.
would otherwise be released pursuant 6.108 Criteria for initiating an EIS.
to subpart A. For purposes of Rule 44
Subpart B—Content of EISs
the person having legal custody of the
record is the cognizant Assistant Ad- 6.200 The environmental impact statement.
ministrator, Regional Administrator, 6.201 Format.
Staff Office Director or Office Director 6.202 Executive summary.
or his designee. The advice of the Of- 6.203 Body of EISs.
6.204 Incorporation by reference.
fice of General Counsel should be ob- 6.205 List of preparers.
tained concerning the proper form of
authentication. Subpart C—Coordination With Other Envi-
ronmental Review and Consultation
PART 4—UNIFORM RELOCATION Requirements
ASSISTANCE AND REAL PROP- 6.300 General.
ERTY ACQUISITION FOR FEDERAL 6.301 Landmarks, historical, and archeo-
AND FEDERALLY ASSISTED PRO- logical sites.
GRAMS 6.302 Wetlands, floodplains, important
farmlands, coastal zones, wild and scenic
rivers, fish and wildlife, and endangered
AUTHORITY: Section 213, Uniform Reloca- species.
tion Assistance and Real Property Acquisi- 6.303 Air quality.
tion Policies Act of 1970, as amended by the
Surface Transportation and Uniform Reloca- Subpart D—Public and Other Federal
tion Assistance Act of 1987, Title IV of Pub. Agency Involvement
L. 100–17, 101 Stat. 246–256 (42 U.S.C. 4601
note). 6.400 Public involvement.
6.401 Official filing requirements.
§ 4.1 Uniform relocation assistance 6.402 Availability of documents.
and real property acquisition. 6.403 The commenting process.
6.404 Supplements.
Effective April 2, 1989, regulations
and procedures for complying with the Subpart E—Environmental Review Proce-
Uniform Relocation Assistance and dures for Wastewater Treatment Con-
Real Property Acquisition Policies Act struction Grants Program
of 1970 (Pub. L. 91–646, 84 Stat. 1894, 42
U.S.C. 4601), as amended by the Surface 6.500 Purpose.
Transportation and Uniform Reloca- 6.501 Definitions.
6.502 Applicability and limitations.
tion Assistance Act of 1987 (Pub. L. 100–
6.503 Overview of the environmental review
17, 101 Stat. 246–255, 42 U.S.C. 4601 note) process.
are set forth in 49 CFR part 24. 6.504 Consultation during the facilities
[52 FR 48023, Dec. 17, 1987 and 54 FR 8912, planning process.
Mar. 2, 1989] 6.505 Categorical exclusions.
6.506 Environmental review process.
6.507 Partitioning the environmental review
PART 6—PROCEDURES FOR IMPLE- process.
MENTING THE REQUIREMENTS OF 6.508 Findings of No Significant Impact
THE COUNCIL ON ENVIRON- (FNSI) determination.
6.509 Criteria for initiating Environmental
MENTAL QUALITY ON THE NA- Impact Statements (EIS).
TIONAL ENVIRONMENTAL POLICY 6.510 Environmental Impact Statement
ACT (EIS) preparation.
6.511 Record of Decision (ROD) for EISs and
Subpart A—General identification of mitigation measures.
6.512 Monitoring for compliance.
Sec. 6.513 Public participation.
6.100 Purpose and policy. 6.514 Delegation to States.
72
Subpart F—Environmental Review Proce- Subpart A—General

dures for the New Source NPDES Pro-
gram § 6.100 Purpose and policy.
6.600 Purpose. (a) The National Environmental Pol-
6.601 Definitions. icy Act of 1969 (NEPA), 42 U.S.C. 4321 et
6.602 Applicability. seq., as implemented by Executive Or-
6.603 Limitations on actions during envi- ders 11514 and 11991 and the Council on
ronmental review process. Environmental Quality (CEQ) Regula-
6.605 Criteria for preparing EISs.
tions of November 29, 1978 (43 FR 55978)
6.606 Record of decision. requires that Federal agencies include
6.607 Monitoring. in their decision-making processes ap-
propriate and careful consideration of
Subpart G—Environmental Review Proce- all environmental effects of proposed
dures for Office of Research and De- actions, analyze potential environ-
velopment Projects mental effects of proposed actions and
their alternatives for public under-
6.700 Purpose.
standing and scrutiny, avoid or mini-
6.701 Definition.
6.702 Applicability. mize adverse effects of proposed ac-
6.703 General. tions, and restore and enhance environ-
6.704 Categorical exclusions. mental quality as much as possible.
6.705 Environmental assessment and finding The Environmental Protection Agency
of no significant impact. (EPA) shall integrate these NEPA fac-
6.706 Environmental impact statement. tors as early in the Agency planning
processes as possible. The environ-
Subpart H—Environmental Review Proce- mental review process shall be the
dures for Solid Waste Demonstration focal point to assure NEPA consider-
Projects ations are taken into account. To the
6.800 Purpose. extent applicable, EPA shall prepare
6.801 Applicability. environmental impact statements
6.802 Criteria for preparing EISs. (EISs) on those major actions deter-
6.803 Environmental review process. mined to have significant impact on
6.804 Record of decision. the quality of the human environment.
This part takes into account the EIS
Subpart I—Environmental Review Proce- exemptions set forth under section
dures for EPA Facility Support Activities 511(c)(1) of the Clean Water Act (Pub.
6.900 Purpose. L. 92–500) and section 7(c)(1) of the En-
6.901 Definitions. ergy Supply and Environmental Co-
6.902 Applicability. ordination Act of 1974 (Pub. L. 93–319).
6.903 Criteria for preparing EISs. (b) This part establishes EPA policy
and procedures for the identification
6.905 Record of decision.
and analysis of the environmental im-
Subpart J—Assessing the Environmental pacts of EPA-related activities and the
Effects Abroad of EPA Actions preparation and processing of EISs.
6.1001 Purpose and policy. § 6.101 Definitions.

6.1002 Applicability.
6.1003 Definitions. (a) Terminology. All terminology used
6.1004 Environmental review and assess- in this part will be consistent with the
ment requirements. terms as defined in 40 CFR part 1508
6.1005 Lead or cooperating agency. (the CEQ Regulations). Any qualifica-
6.1006 Exemptions and considerations. tions will be provided in the definitions
6.1007 Implementation. set forth in each subpart of this regula-
APPENDIX A TO PART 6—STATEMENT OF PRO- tion.
CEDURES ON FLOODPLAIN MANAGEMENT
(b) The term CEQ Regulations means
AND WETLANDS PROTECTION
the regulations issued by the Council
AUTHORITY: 42 U.S.C. 4321 et seq., 7401-7671q; on Environmental Quality on Novem-
40 CFR part 1500. ber 29, 1978 (see 43 FR 55978), which im-
SOURCE: 44 FR 64177, Nov. 6, 1979, unless plement Executive Order 11991. The
otherwise noted. CEQ Regulations will often be referred
73
§ 6.102 40 CFR Ch. I (7–1–00 Edition)
to throughout this regulation by ref- Elimination System (NPDES) permits

erence to 40 CFR part 1500 et al. under section 402 of the Clean Water
(c) The term environmental review Act.
means the process whereby an evalua- (7) Subpart G describes the environ-
tion is undertaken by EPA to deter- mental review requirements for re-
mine whether a proposed Agency ac- search and development programs un-
tion may have a significant impact on dertaken by the Agency.
the environment and therefore require (8) Subpart H describes the environ-
the preparation of the EIS. mental review requirements for solid
(d) The term environmental informa- waste demonstration projects under-
tion document means any written anal- taken by the Agency.
ysis prepared by an applicant, grantee (9) Subpart I describes the environ-
or contractor describing the environmental review requirements for con-
mental impacts of a proposed action. struction of special purpose facilities
This document will be of sufficient and facility renovations by the Agency.
scope to enable the responsible official (b) Legislative proposals. As required
to prepare an environmental assess- by the CEQ Regulations, legislative
ment as described in the remaining EISs are required for any legislative
subparts of this regulation. proposal developed by EPA which sig-
(e) The term grant as used in this nificantly affects the quality of the
part means an award of funds or other human environment. A preliminary
assistance by a written grant agree- draft EIS shall be prepared by the re-
ment or cooperative agreement under sponsible EPA office concurrently with
40 CFR chapter I, subpart B. the development of the legislative pro-
posal and contain information required
§ 6.102 Applicability.
under subpart B. The EIS shall be proc-
(a) Administrative actions covered. This essed in accordance with the require-
part applies to the activities of EPA in ments set forth under 40 CFR 1506.8.
accordance with the outline of the sub- (c) Application to ongoing activities—
parts set forth below. Each subpart de- (1) General. The effective date for these
scribes the detailed environmental re- regulations is December 5, 1979. These
view procedures required for each ac- regulations do not apply to an EIS or
tion. supplement to that EIS if the draft EIS
(1) Subpart A sets forth an overview was filed with the Office of External
of the regulation. Section 6.102(b) de- Affairs, (OEA) before July 30, 1979. No
scribes the requirements for EPA legis- completed environmental documents
lative proposals. need be redone by reason of these regu-
(2) Subpart B describes the require- lations.
ments for the content of an EIS pre- (2) With regard to activities under
pared pursuant to subparts E, F, G, H, subpart E, these regulations shall
and I. apply to all EPA environmental review
(3) Subpart C describes the require- procedures effective December 15, 1979.
ments for coordination of all environ- However, for facility plans begun be-
mental laws during the environmental fore December 15, 1979, the responsible
review undertaken pursuant to sub- official shall impose no new require-
parts E, F, G, H, and I. ments on the grantee. Such grantees
(4) Subpart D describes the public in- shall comply with requirements appli-
formation requirements which must be cable before the effective date of this
undertaken in conjunction with the en- regulation. Notwithstanding the above,
vironmental review requirements this regulation shall apply to any facil-
under subparts E, F, G, H, and I. ity plan submitted to EPA after Sep-
(5) Subpart E describes the environ- tember 30, 1980.
mental review requirements for the
wastewater treatment construction [44 FR 64177, Nov. 6, 1979, as amended at 47
grants program under Title II of the FR 9829, Mar. 8, 1982]
Clean Water Act.
(6) Subpart F describes the environ- § 6.103 Responsibilities.
mental review requirements for new (a) General responsibilities. (1) The re-
source National Pollutant Discharge sponsible official’s duties include:
74
(i) Requiring applicants, contractors, matters of EPA policy and administra-

and grantees to submit environmental tive mechanisms to facilitate external
information documents and related review of EISs, to determine lead agen-
documents and assuring that environ- cy and to improve the uniformity of
mental reviews are conducted on pro- the NEPA procedures of Federal agen-
posed EPA projects at the earliest pos- cies.
sible point in EPA’s decision-making (vi) Advising the Administrator and
process. In this regard, the responsible Deputy Administrator on projects
official shall assure the early involve- which involve more than one EPA of-
ment and availability of information fice, are highly controversial, are na-
for private applicants and other non-
tionally significant, or pioneer EPA
Federal entities requiring EPA approv-
policy, when these projects have had or
als.
(ii) When required, assuring that ade- should have an EIS prepared on them.
quate draft EISs are prepared and dis- (vii) Carrying out administrative du-
tributed at the earliest possible point ties relating to maintaining status of
in EPA’s decision-making process, EISs within EPA, i.e., publication of
their internal and external review is notices of intent in the FEDERAL REG-
coordinated, and final EISs are pre- ISTER and making available to the pub-
pared and distributed. lic status reports on EISs and other
(iii) When an EIS is not prepared, as- elements of the environmental review
suring documentation of the decision process.
to grant a categorical exclusion, or as- (3) Office of an Assistant Administrator
suring that findings of no significant duties include: (i) Providing specific pol-
impact (FNSIs) and environmental as- icy guidance to their respective offices
sessments are prepared and distributed and assuring that those offices estab-
for those actions requiring them. lish and maintain adequate administra-
(iv) Consulting with appropriate offi- tive procedures to comply with this
cials responsible for other environ- part.
mental laws set forth in subpart C. (ii) Monitoring the overall timeliness
(v) Consulting with the Office of Ex-
and quality of their respective office’s
ternal Affairs (OEA) on actions involv-
efforts to comply with this part.
ing unresolved conflicts concerning
this part or other Federal agencies. (iii) Acting as liaison between their
(vi) When required, assuring that offices and the OEA and between their
public participation requirements are offices and other Assistant Administra-
met. tors or Regional Administrators on
(2) Office of External Affairs duties in- matters of agencywide policy and pro-
clude: (i) Supporting the Administrator cedures.
in providing EPA policy guidance and (iv) Advising the Administrator and
assuring that EPA offices establish and Deputy Administrator through the
maintain adequate administrative pro- OEA on projects or activities within
cedures to comply with this part. their respective areas of responsibil-
(ii) Monitoring the overall timeliness ities which involve more than one EPA
and quality of the EPA effort to com- office, are highly controversial, are na-
ply with this part. tionally significant, or pioneer EPA
(iii) Providing assistance to respon- policy, when these projects will have or
sible officials as required, i.e., pre- should have an EIS prepared on them.
paring guidelines describing the scope (v) Pursuant to § 6.102(b) of this sub-
of environmental information required part, preparing legislative EISs as ap-
by private applicants relating to their
propriate on EPA legislative initia-
proposed actions.
tives.
(iv) Coordinating the training of per-
sonnel involved in the review and prep- (4) The Office of Policy, Planning,
aration of EISs and other associated and Evaluation duties include: respon-
documents. sibilities for coordinating the prepara-
(v) Acting as EPA liaison with the tion of EISs required on EPA legisla-
Council on Environmental Quality and tive proposals in accordance with
other Federal and State entities on § 6.102(b).
75
§ 6.104 40 CFR Ch. I (7–1–00 Edition)
(b) Responsibilities for subpart E—(1) § 6.104 Early involvement of private

Responsible official. The responsible of- parties.
ficial for EPA actions covered by this As required by 40 CFR 1501.2(d) and
subpart is the Regional Administrator. § 6.103(a)(3)(v) of this regulation, re-
(2) Assistant Administrator. The responsible officials must ensure early
sponsibilities of the Assistant Adminis- involvement of private applicants or
trator, as described in § 6.103(a)(3), shall other non-Federal entities in the envi-
be assumed by the Assistant Adminis- ronmental review process related to
trator for Water for EPA actions cov- EPA grant and permit actions set forth
ered by this subpart. under subparts E, F, G, and H. The re-
(c) Responsibilities for subpart F—(1) sponsible official in conjunction with
Responsible official. The responsible of- OEA shall:
ficial for activities covered by this sub- (a) Prepare where practicable, ge-
part is the Regional Administrator. neric guidelines describing the scope
(2) Assistant Administrator. The re- and level of environmental information
sponsibilities of the Assistant Adminis- required from applicants as a basis for
trator, as described in § 6.103(a)(3), shall evaluating their proposed actions, and
be assumed by the Assistant Adminis- make these guidelines available upon
trator for Enforcement and Compliance request.
Monitoring for EPA actions covered by (b) Provide such guidance on a proj-
this subpart. ect-by-project basis to any applicant
(d) Responsibilities for subpart G. The seeking assistance.
Assistant Administrator for Research (c) Upon receipt of an application for
and Development will be the respon- agency approval, or notification that
sible official for activities covered by an application will be filed, consult as
this subpart. required with other appropriate parties
(e) Responsibilities for subpart H. The to initiate and coordinate the nec-
Assistant Administrator for Solid essary environmental analyses.
Waste and Emergency Response will be [44 FR 64177, Nov. 6, 1979, as amended at 47
the responsible official for activities FR 9829, Mar. 8, 1982]
covered by this subpart.
(f) Responsibilities for subpart I. The § 6.105 Synopsis of environmental re-
view procedures.
responsible official for new construc-
tion and modification of special pur- (a) Responsible official. The respon-
pose facilities is as follows: sible official shall utilize a systematic,
(1) The Chief, Facilities Engineering interdisciplinary approach to integrate
and Real Estate Branch, Facilities and natural and social sciences as well as
Support Services Division, Office of the environmental design arts in planning
Assistant Administrator for Adminis- programs and making decisions which
tration and Resource Management are subject to environmental review.
(OARM) shall be the responsible offi- The respective staffs may be supple-
cial on all new construction of special mented by professionals from other
purpose facilities and on all new modi- agencies (see 40 CFR 1501.6) or consult-
ants whenever in-house capabilities are
fication projects for which the Facili-
insufficiently interdisciplinary.
ties Engineering and Real Estate
(b) Environmental information docu-
Branch has received a funding allow-
ments (EID). Environmental informa-
ance and for all other field components
tion documents (EIDs) must be pre-
not covered elsewhere in paragraph (f)
pared by applicants, grantees, or per-
of this section.
mittees and submitted to EPA as re-
(2) The Regional Administrator shall quired in subparts E, F, G, H, and I.
be the responsible official on all im- EIDs will be of sufficient scope to en-
provement and modification projects able the responsible official to prepare
for which the regional office has re- an environmental assessment as de-
ceived the funding allowance. scribed under § 6.105(d) of this part and
[44 FR 64177, Nov. 6, 1979, as amended at 47 subparts E through I. EIDs will not
FR 9829, Mar. 8, 1982; 50 FR 26315, June 25, have to be prepared for actions where a
1985; 51 FR 32609, Sept. 12, 1986] categorical exclusion has been granted.
76
(c) Environmental reviews. Environ- essary to make the recommended al-

mental reviews shall be conducted on ternative environmentally acceptable.
the EPA activities outlined in § 6.102 of (g) Record of decision. At the time of
this part and set forth under subparts its decision on any action for which a
E, F, G, H and I. This process shall con- final EIS has been prepared, the re-
sist of a study of the action to identify sponsible official shall prepare a con-
and evaluate the related environmental cise public record of the decision. The
impacts. The process shall include a re- record of decision shall describe those
view of any related environmental in- mitigation measures to be undertaken
formation document to determine which will make the selected alter-
whether any significant impacts are native environmentally acceptable.
anticipated and whether any changes Where the final EIS recommends the
can be made in the proposed action to alternative which is ultimately chosen
eliminate significant adverse impacts; by the responsible official, the record
when an EIS is required, EPA has over- of decision may be extracted from the
all responsibility for this review, al- executive summary to the final EIS.
though grantees, applicants, permit- (h) Monitoring. The responsible offi-
tees or contractors will contribute to cial shall provide for monitoring to as-
the review through submission of envi- sure that decisions on any action
ronmental information documents. where a final EIS has been prepared are
(d) Environmental assessments. Envi- properly implemented. Appropriate
ronmental assessments (i.e., concise mitigation measures shall be included
public documents for which EPA is rein actions undertaken by EPA.
sponsible) are prepared to provide suffi- [44 FR 64177, Nov. 6, 1979, as amended at 50
cient data and analysis to determine FR 26315, June 25, 1985; 51 FR 32610, Sept. 12,
whether an EIS or finding of no signifi- 1986]
cant impact is required. Where EPA de-
termines that a categorical exclusion § 6.106 Deviations.
is appropriate or an EIS will be pre- (a) General. The Assistant Adminis-
pared, there is no need to prepare a for- trator, OEA, is authorized to approve
mal environmental assessment. deviations from these regulations. De-
(e) Notice of intent and EISs. When the viation approvals shall be made in
environmental review indicates that a writing by the Assistant Adminis-
significant environmental impact may trator, OEA.
occur and significant adverse impacts (b) Requirements. (1) Where emergency
can not be eliminated by making circumstances make it necessary to
changes in the project, a notice of in- take an action with significant envi-
tent to prepare an EIS shall be pub- ronmental impact without observing
lished in the FEDERAL REGISTER, the substantive provisions of these reg-
scoping shall be undertaken in accord- ulations or the CEQ Regulations, the
ance with 40 CFR 1501.7, and a draft responsible official shall notify the As-
EIS shall be prepared and distributed. sistant Administrator, OEA, before
After external coordination and eval- taking such action. The responsible of-
uation of the comments received, a ficial shall consider to the extent pos-
final EIS shall be prepared and dis- sible alternative arrangements; such
seminated. The final EIS shall list any arrangements will be limited to ac-
mitigation measures necessary to tions necessary to control the imme-
make the recommended alternative en- diate impacts of the emergency; other
vironmentally acceptable. actions remain subject to the environ-
(f) Finding of no significant impact mental review process. The Assistant
(FNSI). When the environmental re- Administrator, OEA, after consulting
view indicates no significant impacts CEQ, will inform the responsible offi-
are anticipated or when the project is cial, as expeditiously as possible of the
altered to eliminate any significant ad- disposition of his request.
verse impacts, a FNSI shall be issued (2) Where circumstances make it nec-
and made available to the public. The essary to take action without observ-
environmental assessment shall be in- ing procedural provisions of these regu-
cluded as a part of the FNSI. The FNSI lations, the responsible official shall
shall list any mitigation measures nec- notify the Assistant Administrator,
77
§ 6.107 40 CFR Ch. I (7–1–00 Edition)
OEA, before taking such action. If the sible official determines that: (1) The
Assistant Administrator, OEA, deter- proposed action no longer meets the re-
mines such a deviation would be in the quirements for a categorical exclusion
best interest of the Government, he due to changes in the proposed action;
shall inform the responsible official, as or (2) determines from new evidence
soon as possible, of his approval. that serious local or environmental
(3) The Assistant Administrator, issues exist; or (3) that Federal, State,
OEA, shall coordinate his action on a local, or tribal laws are being or may
deviation under § 6.106(b) (1) or (2) of be violated.
this part with the Director, Grants Ad- (d) General categories of actions eligible
ministration Division, Office of Plan- for exclusion. Actions consistent with
ning and Management, for any required any of the following categories are eli-
grant-related deviation under 40 CFR gible for a categorical exclusion:
30.1000, as well as the appropriate As- (1) Actions which are solely directed
sistant Administrator. toward minor rehabilitation of existing
[44 FR 64177, Nov. 6, 1979, as amended at 47 facilities, functional replacement of
FR 9829, Mar. 8, 1982] equipment, or towards the construc-
tion of new ancillary facilities adjacent
§ 6.107 Categorical exclusions. or appurtenant to existing facilities;
(a) General. Categories of actions (2) Other actions specifically allowed
which do not individually, cumula- in program specific subparts of this
tively over time, or in conjunction regulation; or
with other Federal, State, local, or pri- (3) Other actions developed in accord-
vate actions have a significant effect ance with paragraph (f) of this section.
on the quality of the human environ- (e) General criteria for not granting a
ment and which have been identified as categorical exclusion. (1) The full envi-
having no such effect based on the re- ronmental review procedures of this
quirements in § 6.505, may be exempted part must be followed if undertaking
from the substantive environmental re- an action consistent with allowable
view requirements of this part. Envi- categories in paragraph (d) of this sec-
ronmental information documents and tion may involve serious local or envi-
environmental assessments or environ- ronmental issues, or meets any of the
mental impact statements will not be criteria listed below:
required for excluded actions.
(i) The action is known or expected
(b) Determination. The responsible of-
to have a significant effect on the qual-
ficial shall determine whether an ac-
ity of the human environment, either
tion is eligible for a categorical exclu-
individually, cumulatively over time,
sion as established by general criteria
or in conjunction with other Federal,
in § 6.107 (d) and (e) and any applicable
State, local, tribal or private actions;
criteria in program specific subparts of
part 6 of this title. A determination (ii) The action is known or expected
shall be made as early as possible fol- to directly or indirectly affect:
lowing the receipt of an application. (A) Cultural resource areas such as
The responsible official shall document archaeological and historic sites in ac-
the decision to issue or deny an exclu- cordance with § 6.301,
sion as soon as practicable following (B) Endangered or threatened species
review in accordance with § 6.400(f). For and their critical habitats in accord-
qualified actions, the documentation ance with § 6.302 or State lists,
shall include the application, a brief (C) Environmentally important nat-
description of the proposed action, and ural resource areas such as floodplains,
a brief statement of how the action wetlands, important farmlands, aquifer
meets the criteria for a categorical ex- recharge zones in accordance with
clusion without violating criteria for § 6.302, or
not granting an exclusion. (D) Other resource areas identified in
(c) Revocation. The responsible offi- supplemental guidance issued by the
cial shall revoke a categorical exclu- OEA;
sion and shall require a full environ- (iii) The action is known or expected
mental review if, subsequent to the not to be cost-effective or to cause sig-
granting of an exclusion, the respon- nificant public controversy; or
78
(iv) Appropriate specialized program sistent with the proposed category will
specific criteria for not granting an ex- normally be available when needed.
clusion found in other subparts of this
regulation are applicable to the action. FR 32610, Sept. 12, 1986]
(2) Notwithstanding the provisions of
paragraph (d) of this section, if any of § 6.108 Criteria for initiating an EIS.
the conditions cited in paragraph (e)(1) The responsible official shall assure
of this section exist, the responsible of- that an EIS will be prepared and issued
ficial shall ensure: for actions under subparts E, G, H, and
(i) That a categorical exclusion is not I when it is determined that any of the
granted or, if previously granted, that following conditions exist:
it is revoked according to paragraph (c) (a) The Federal action may signifi-
of this section; cantly affect the pattern and type of
(ii) That an adequate EID is pre- land use (industrial, commercial, agri-
pared; and cultural, recreational, residential) or
(iii) That either an environmental as- growth and distribution of population;
sessment and FNSI or a notice of in- (b) The effects resulting from any
tent for an EIS and ROD is prepared structure or facility constructed or op-
and issued. erated under the proposed action may
(f) Developing new categories of ex- conflict with local, regional or State
cluded actions. The responsible official, land use plans or policies;
or other interested parties, may re- (c) The proposed action may have sig-
quest that a new general or specialized nificant adverse effects on wetlands,
program specific category of excluded including indirect and cumulative ef-
actions be created, or that an existing fects, or any major part of a structure
category be amended or deleted. The or facility constructed or operated
request shall be in writing to the As- under the proposed action may be lo-
sistant Administrator, OEA, and shall cated in wetlands;
contain adequate information to sup- (d) The proposed action may signifi-
port the request. Proposed new cat- cantly affect threatened and endan-
egories shall be developed by OEA and gered species or their habitats identi-
published in the FEDERAL REGISTER as fied in the Department of the Interior’s
a proposed rule, amending paragraph list, in accordance with § 6.302, or a
(d) of this section when the proposed State’s list, or a structure or a facility
new category applies to all eligible pro- constructed or operated under the pro-
grams or, amending appropriate para- posed action may be located in the
graphs in other subparts of this part habitat;
when the proposed new category ap- (e) Implementation of the proposed
plies to one specific program. The pub- action or plan may directly cause or
lication shall include a thirty (30) day induce changes that significantly:
public comment period. In addition to (1) Displace population;
criteria for specific programs listed in (2) Alter the character of existing
other subparts of this part, the fol- residential areas;
lowing general criteria shall be consid- (3) Adversely affect a floodplain; or
ered in evaluating proposals for new (4) Adversely affect significant
categories: amounts of important farmlands as de-
(1) Any action taken seldom results fined in requirements in § 6.302(c), or
in the effects identified in general or agricultural operations on this land.
specialized program specific criteria (f) The proposed action may, directly,
identified through the application of indirectly or cumulatively have signifi-
criteria for not granting a categorical cant adverse effect on parklands, pre-
exclusion; serves, other public lands or areas of
(2) Based upon previous environ- recognized scenic, recreational, archae-
mental reviews, actions consistent ological, or historic value; or
with the proposed category have not (g) The Federal action may directly
required the preparation of an EIS; and or through induced development have a
(3) Whether information adequate to significant adverse effect upon local
determine if a potential action is con- ambient air quality, local ambient
79
§ 6.200 40 CFR Ch. I (7–1–00 Edition)
noise levels, surface water or ground- issues raised by governmental agencies

water quality or quantity, water sup- and the public); and
ply, fish, shellfish, wildlife, and their (c) Any major conclusions.
natural habitats. A comprehensive summary may be pre-
[50 FR 26315, June 25, 1985, as amended at 51 pared in instances where the EIS is un-
FR 32611, Sept. 12, 1986] usually long in nature. In accordance
with 40 CFR 1502.19, the comprehensive
summary may be circulated in lieu of
Subpart B—Content of EISs the EIS; however, both documents
§ 6.200 The environmental impact shall be distributed to any Federal,
statement. State and local agencies who have EIS
review responsibilities and also shall
Preparers of EISs must conform with
be made available to other interested
the requirements of 40 CFR part 1502 in
parties upon request.
writing EISs.
§ 6.203 Body of EISs.
§ 6.201 Format.
(a) Purpose and need. The EIS shall
The format used for EISs shall en- clearly specify the underlying purpose
courage good analysis and clear presen- and need to which EPA is responding.
tation of alternatives, including the If the action is a request for a permit
proposed action, and their environ- or a grant, the EIS shall clearly specify
mental, economic and social impacts. the goals and objectives of the appli-
The following standard format for EISs cant.
should be used unless the responsible (b) Alternatives including the proposed
official determines that there is a com- action. In addition to 40 CFR 1502.14,
pelling reason to do otherwise: the EIS shall discuss:
(a) Cover sheet; (1) Alternatives considered by the appli-
(b) Executive Summary; cant. This section shall include a bal-
(c) Table of contents; anced description of each alternative
(d) Purpose of and need for action; considered by the applicant. These dis-
(e) Alternatives including proposed cussions shall include size and location
action; of facilities, land requirements, oper-
(f) Affected environment; ation and maintenance requirements,
(g) Environmental consequences of auxiliary structures such as pipelines
the alternatives; or transmission lines, and construction
(h) Coordination (includes list of schedules. The alternative of no action
agencies, organizations, and persons to shall be discussed and the applicant’s
whom copies of the EIS are sent); preferred alternative(s) shall be identi-
(i) List of preparers; fied. For alternatives which were
(j) Index (commensurate with com- eliminated from detailed study, a brief
plexity of EIS); discussion of the reasons for their hav-
(k) Appendices. ing been eliminated shall be included.
(2) Alternatives available to EPA. EPA
§ 6.202 Executive summary. alternatives to be discussed shall in-
The executive summary shall de- clude: (i) Taking an action; or (ii) tak-
scribe in sufficient detail (10–15 pages) ing an action on a modified or alter-
the critical facets of the EIS so that native project, including an action not
the reader can become familiar with considered by the applicant; and (iii)
the proposed project or action and its denying the action.
net effects. The executive summary (3) Alternatives available to other per-
shall focus on: mitting agencies. When preparing a joint
(a) The existing problem; EIS, and if applicable, the alternatives
(b) A brief description of each alter- available to other Federal and/or State
native evaluated (including the pre- agencies shall be discussed.
ferred and no action alternatives) (4) Identifying preferred alternative. In
along with a listing of the environ- the final EIS, the responsible official
mental impacts, possible mitigation shall signify the preferred alternative.
measures relating to each alternative, (c) Affected environment and environ-
and any areas of controversy (including mental consequences of the alternatives.
80
The affected environment on which the erence shall be organized to the extent
evaluation of each alternative shall be possible into a Supplemental Informa-
based includes, for example, hydrology, tion Document and be made available
geology, air quality, noise, biology, for review upon request. No material
socioeconomics, energy, land use, and may be incorporated by reference un-
archeology and historic subjects. The less it is reasonably available for in-
discussion shall be structured so as to spection by potentially interested per-
present the total impacts of each alter- sons within the period allowed for com-
native for easy comparison among all ment.
alternatives by the reader. The effects
of a ‘‘no action’’ alternative should be § 6.205 List of preparers.
included to facilitate reader compari- When the EIS is prepared by con-
son of the beneficial and adverse im- tract, either under direct contract to
pacts of other alternatives to the appli- EPA or through an applicant’s or
cant doing nothing. A description of grantee’s contractor, the responsible
the environmental setting shall be in- official must independently evaluate
cluded in the ‘‘no action’’ alternative the EIS prior to its approval and take
for the purpose of providing needed responsibility for its scope and con-
background information. The amount tents. The EPA officials who undertake
of detail in describing the affected en- this evaluation shall also be described
vironment shall be commensurate with under the list of preparers.
the complexity of the situation and the
importance of the anticipated impacts.
(d) Coordination. The EIS shall in-
Subpart C—Coordination With
clude: Other Environmental Review
(1) The objections and suggestions and Consultation Require-
made by local, State, and Federal ments
agencies before and during the EIS re-
view process must be given full consid- § 6.300 General.
eration, along with the issues of public Various Federal laws and executive
concern expressed by individual citi- orders address specific environmental
zens and interested environmental concerns. The responsible official shall
groups. The EIS must include discus- integrate to the greatest practicable
sions of any such comments concerning extent the applicable procedures in this
our actions, and the author of each subpart during the implementation of
comment should be identified. If a the environmental review process
comment has resulted in a change in under subparts E through I. This sub-
the project or the EIS, the impact part presents the central requirements
statement should explain the reason. of these laws and executive orders. It
(2) Public participation through pub- refers to the pertinent authority and
lic hearings or scoping meetings shall regulations or guidance that contain
also be included. If a public hearing has the procedures. These laws and execu-
been held prior to the publication of tive orders establish review procedures
the EIS, a summary of the transcript independent of NEPA requirements.
should be included in this section. For The responsible official shall be famil-
the public hearing which shall be held iar with any other EPA or appropriate
after the publication of the draft EIS, agency procedures implementing these
the date, time, place, and purpose shall laws and executive orders.
be included here.
[44 FR 64177, Nov. 6, 1979, as amended at 50
(3) In the final EIS, a summary of the FR 26316, June 25, 1985]
coordination process and EPA re-
sponses to comments on the draft EIS § 6.301 Landmarks, historical, and ar-
shall be included. cheological sites.
[44 FR 64177, Nov. 6, 1979, as amended at 50 EPA is subject to the requirements of
FR 26316, June 25, 1985] the Historic Sites Act of 1935, 16 U.S.C.
461 et seq., the National Historic Pres-
§ 6.204 Incorporation by reference. ervation Act of 1966, as amended, 16
In addition to 40 CFR 1502.21, mate- U.S.C. 470 et seq., the Archaeological
rial incorporated into an EIS by ref- and Historic Preservation Act of 1974,
81
§ 6.302 40 CFR Ch. I (7–1–00 Edition)
16 U.S.C. 469 et seq., and Executive ing archeological preservation activi-

Order 11593, entitled ‘‘Protection and ties and methods at 48 FR 44716 (Sep-
Enhancement of the Cultural Environ- tember 29, 1983).
ment.’’ These statutes, regulations and
executive orders establish review pro-
FR 26316, June 25, 1985]
cedures independent of NEPA require-
ments. § 6.302 Wetlands, floodplains, impor-
(a) National natural landmarks. Under tant farmlands, coastal zones, wild
the Historic Sites Act of 1935, the Sec- and scenic rivers, fish and wildlife,
retary of the Interior is authorized to and endangered species.
designate areas as national natural The following procedures shall apply
landmarks for listing on the National
to EPA administrative actions in pro-
Registry of Natural Landmarks. In
grams to which the pertinent statute
conducting an environmental review of
or executive order applies.
a proposed EPA action, the responsible
official shall consider the existence and (a) Wetlands protection. Executive
location of natural landmarks using in- Order 11990, Protection of Wetlands, re-
formation provided by the National quires Federal agencies conducting cer-
Park Service pursuant to 36 CFR 62.6(d) tain activities to avoid, to the extent
to avoid undesirable impacts upon such possible, the adverse impacts associ-
landmarks. ated with the destruction or loss of
(b) Historic, architectural, archeo- wetlands and to avoid support of new
logical, and cultural sites. Under section construction in wetlands if a prac-
106 of the National Historic Preserva- ticable alternative exists. EPA’s State-
tion Act and Executive Order 11593, if ment of Procedures on Floodplain Man-
an EPA undertaking affects any prop- agement and Wetlands Protection
erty with historic, architectural, ar- (dated January 5, 1979, incorporated as
cheological or cultural value that is appendix A hereto) requires EPA pro-
listed on or eligible for listing on the grams to determine if proposed actions
National Register of Historic Places, will be in or will affect wetlands. If so,
the responsible official shall comply the responsible official shall prepare a
with the procedures for consultation floodplains/wetlands assessment, which
and comment promulgated by the Ad- will be part of the environmental as-
visory Council on Historic Preserva- sessment or environmental impact
tion in 36 CFR part 800. The responsible statement. The responsible official
official must identify properties af- shall either avoid adverse impacts or
fected by the undertaking that are po- minimize them if no practicable alter-
tentially eligible for listing on the Na- native to the action exists.
tional Register and shall request a de- (b) Floodplain management. Executive
termination of eligibility from the Order 11988, Floodplain Management,
Keeper of the National Register, De- requires Federal agencies to evaluate
partment of the Interior, under the the potential effects of actions they
procedures in 36 CFR part 63. may take in a floodplain to avoid, to
(c) Historic, prehistoric and archeo- the extent possible, adverse effects as-
logical data. Under the Archeological sociated with direct and indirect devel-
and Historic Preservation Act, if an opment of a floodplain. EPA’s State-
EPA activity may cause irreparable ment of Procedures on Floodplain Man-
loss or destruction of significant sci- agement and Wetlands Protection
entific, prehistoric, historic or archeo- (dated January 5, 1979, incorporated as
logical data, the responsible official or appendix A hereto), requires EPA pro-
the Secretary of the Interior is author- grams to determine whether an action
ized to undertake data recovery and will be located in or will affect a flood-
preservation activities. Data recovery plain. If so, the responsible official
and preservation activities shall be shall prepare a floodplain/wetlands as-
conducted in accordance with imple- sessment. The assessment will become
menting procedures promulgated by part of the environmental assessment
the Secretary of the Interior. The Na- or environmental impact statement.
tional Park Service has published tech- The responsible official shall either
nical standards and guidelines regard- avoid adverse impacts or minimize
82
them if no practicable alternative ex- program, a consistency determination

ists. shall be sought in accordance with pro-
(c) Important farmlands. It is EPA’s cedures promulgated by the Office of
policy as stated in the EPA Policy To Coastal Zone Management in 15 CFR
Protect Environmentally Significant part 930.
Agricultural Lands, dated September 8, (e) Wild and scenic rivers. (1) The Wild
1978, to consider the protection of the and Scenic Rivers Act, 16 U.S.C. 1274 et
Nation’s significant/important agricul- seq., establishes requirements applica-
tural lands from irreversible conver- ble to water resource projects affecting
sion to uses which result in its loss as wild, scenic or recreational rivers with-
an environmental or essential food pro- in the National Wild and Scenic Rivers
duction resource. In addition the system as well as rivers designated on
Farmland Protection Policy Act, the National Rivers Inventory to be
(FPPA) 7 U.S.C. 4201 et seq., requires studied for inclusion in the national
Federal agencies to use criteria devel- system. Under the Act, a Federal agen-
oped by the Soil Conservation Service, cy may not assist, through grant, loan,
U.S. Department of Agriculture, to: license or otherwise, the construction
(1) Identify and take into account the of a water resources project that would
adverse effects of their programs on have a direct and adverse effect on the
the preservation of farmlands from values for which a river in the National
conversion to other uses; System or study river on the National
(2) Consider alternative actions, as Rivers Inventory was established, as
appropriate, that could lessen such ad- determined by the Secretary of the In-
verse impacts; and terior for rivers under the jurisdiction
(3) Assure that their programs, to the of the Department of the Interior and
extent possible, are compatible with by the Secretary of Agriculture for riv-
State and local government and pri- ers under the jurisdiction of the De-
vate programs and policies to protect partment of Agriculture. Nothing con-
farmlands. If an EPA action may ad- tained in the foregoing sentence, how-
versely impact farmlands which are ever, shall:
classified prime, unique or of State and (i) Preclude licensing of, or assist-
local importance as defined in the Act, ance to, developments below or above a
the responsible official shall in all wild, scenic or recreational river area
cases apply the evaluative criteria pro- or on any stream tributary thereto
mulgated by the U.S. Department of which will not invade the area or un-
Agriculture at 7 CFR part 658. If cat- reasonably diminish the scenic, rec-
egories of important farmlands, which reational, and fish and wildlife values
include those defined in both the FPPA present in the area on October 2, 1968;
and the EPA policy, are identified in or
the project study area, both direct and (ii) Preclude licensing of, or assist-
indirect effects of the undertaking on ance to, developments below or above a
the remaining farms and farm support study river or any stream tributary
services within the project area and thereto which will not invade the area
immediate environs shall be evaluated. or diminish the scenic, recreational
Adverse effects shall be avoided or and fish and wildlife values present in
mitigated to the extent possible. the area on October 2, 1968.
(d) Coastal zone management. The (2) The responsible official shall:
Coastal Zone Management Act, 16 (i) Determine whether there are any
U.S.C. 1451 et seq., requires that all wild, scenic or study rivers on the Na-
Federal activities in coastal areas be tional Rivers Inventory or in the plan-
consistent with approved State Coastal ning area, and
Zone Management Programs, to the (ii) Not recommend authorization of
maximum extent possible. If an EPA any water resources project that would
action may affect a coastal zone area, have a direct and adverse effect on the
the responsible official shall assess the values for which such river was estab-
impact of the action on the coastal lished, as determined by the admin-
zone. If the action significantly affects istering Secretary in request of appro-
the coastal zone area and the State has priations to begin construction of any
an approved coastal zone management such project, whether heretofore or
83
§ 6.303 40 CFR Ch. I (7–1–00 Edition)
hereafter authorized, without advising vent and compensate for project-re-

the administering Secretary, in writing lated losses of wildlife resources and to
of this intention at least sixty days in enhance the resources. Reports and
advance, and without specifically re- recommendations of wildlife agencies
porting to the Congress in writing at should be incorporated into the envi-
the time the recommendation or re- ronmental assessment or environ-
quest is made in what respect construc- mental impact statement. Consulta-
tion of such project would be in con- tion procedures are detailed in 16
flict with the purposes of the Wild and U.S.C. 662.
Scenic Rivers Act and would affect the (h) Endangered species protection.
component and the values to be pro-
Under the Endangered Species Act, 16
tected by the Responsible Official
U.S.C. 1531 et seq., Federal agencies are
under the Act.
prohibited from jeopardizing threat-
(3) Applicable consultation require-
ened or endangered species or ad-
ments are found in section 7 of the Act.
The Department of Agriculture has versely modifying habitats essential to
promulgated implementing procedures, their survival. The responsible official
under section 7 at 36 CFR part 297, shall identify all designated endan-
which apply to water resource projects gered or threatened species or their
located within, above, below or outside habitat that may be affected by an
a wild and scenic river or study river EPA action. If listed species or their
under the Department’s jurisdiction. habitat may be affected, formal con-
(f) Barrier islands. The Coastal Bar- sultation must be undertaken with the
rier Resources Act, 16 U.S.C. 3501 et Fish and Wildlife Service or the Na-
seq., generally prohibits new Federal tional Marine Fisheries Service, as ap-
expenditures or financial assistance for propriate. If the consultation reveals
any purpose within the Coastal Barrier that the EPA activity may jeopardize a
Resources System on or after October listed species or habitat, mitigation
18, 1982. Specified exceptions to this measures should be considered. Appli-
prohibition are allowed only after con- cable consultation procedures are
sultation with the Secretary of the In- found in 50 CFR part 402.
terior. The responsible official shall en-
sure that consultation is carried out
FR 26316, June 25, 1985]
with the Secretary of the Interior be-
fore making available new expendi- § 6.303 Air quality.
tures or financial assistance for activi-
ties within areas covered by the Coast- (a) The Clean Air Act, as amended in
al Barriers Resources Act in accord 1990, 42 U.S.C. 7476(c), requires Federal
with the U.S. Fish and Wildlife Service actions to conform to any State imple-
published guidelines defining new ex- mentation plan approved or promul-
penditures and financial assistance, gated under section 110 of the Act. For
and describing procedures for consulta- EPA actions, the applicable conformity
tion at 48 FR 45664 (October 6, 1983). requirements specified in 40 CFR part
(g) Fish and wildlife protection. The 51, subpart W, 40 CFR part 93, subpart
Fish and Wildlife Coordination Act, 16 B, and the applicable State implemen-
U.S.C. 661 et seq., requires Federal tation plan must be met.
agencies involved in actions that will (b) In addition, with regard to waste-
result in the control or structural water treatment works subject to re-
modification of any natural stream or view under subpart E of this part, the
body of water for any purpose, to take responsible official shall consider the
action to protect the fish and wildlife air pollution control requirements
resources which may be affected by the specified in section 316(b) of the Clean
action. The responsible official shall Air Act, 42 U.S.C. 7616, and Agency im-
consult with the Fish and Wildlife plementation procedures.
Service and the appropriate State
(c)–(g) [Reserved]
agency to ascertain the means and
measures necessary to mitigate, pre- [58 FR 63247, Nov. 30, 1993]
84
Subpart D—Public and Other sponse. The responsible official shall

Federal Agency Involvement consider, fully, comments submitted on
the FNSI before taking administrative
§ 6.400 Public involvement. action. The FNSI shall be made avail-
(a) General. EPA shall make diligent able to the public in accordance with
efforts to involve the public in the en- the requirements and all appropriate
vironmental review process consistent recommendations contained in § 1506.6
with program regulations and EPA of this title.
(e) Record of Decision (ROD). The re-
policies on public participation. The
sponsible official shall disseminate the
responsibile official shall ensure that
ROD to those parties which commented
public notice is provided for in accord-
on the draft or final EIS.
ance with 40 CFR 1506.6(b) and shall en-
(f) Categorical exclusions. (1) For cat-
sure that public involvement is carried
egorical exclusion determinations
out in accordance with EPA Public
under subpart E (Wastewater Treat-
Participation Regulations, 40 CFR part
ment Construction Grants Program),
25, and other applicable EPA public
an applicant who files for and receives
participation procedures.
(b) Publication of notices of intent. As a determination of categorical exclu-
sion under § 6.107(a), or has one re-
soon as practicable after his decision to
scinded under § 6.107(c), shall publish a
prepare an EIS and before the scoping
process, the responsible official shall notice indicating the determination of
send the notice of intent to interested eligibility or rescission in a local news-
and affected members of the public and paper of community-wide circulation
shall request the OEA to publish the and indicate the availability of the
notice of intent in the FEDERAL REG- supporting documentation for public
ISTER. The responsible official shall
inspection. The responsible official
send to OEA the signed original notice shall, concurrent with the publication
of intent for FEDERAL REGISTER publi- of the notice, make the documentation
cation purposes. The scoping process as outlined in § 6.107(b) available to the
should be initiated as soon as prac- public and distribute the notice of the
ticable in accordance with the require- determination to all known interested
ments of 40 CFR 1501.7. Participants in parties.
the scoping process shall be kept in- (2) For categorical exclusion deter-
formed of substantial changes which minations under other subparts of this
evolve during the EIS drafting process. regulation, no public notice need be
(c) Public meetings or hearings. Public issued; however, information regarding
meetings or hearings shall be con- these determinations may be obtained
ducted consistent with Agency pro- by contacting the U.S. Environmental
gram requirements. There shall be a Protection Agency’s Office of Research
presumption that a scoping meeting Program Management for ORD actions,
will be conducted whenever a notice of or the Office of Federal Activities for
intent has been published. The respon- other program actions.
sible official shall conduct a public [44 FR 64177, Nov. 6, 1979, as amended at 51
hearing on a draft EIS. The responsible FR 32611, Sept. 12, 1986; 56 FR 20543, May 6,
official shall ensure that the draft EIS 1991]
is made available to the public at least
30 days in advance of the hearing. § 6.401 Official filing requirements.
(d) Findings of no significant impact (a) General. OEA is responsible for
(FNSI). The responsible official shall the conduct of the official filing sys-
allow for sufficient public review of a tem for EISs. This system was estab-
FNSI before it becomes effective. The lished as a central repository for all
FNSI and attendant publication must EISs which serves not only as means of
state that interested persons dis- advising the public of the availability
agreeing with the decision may submit of each EIS but provides a uniform
comments to EPA. The responsible of- method for the computation of min-
ficial shall not take administrative ac- imum time periods for the review of
tion on the project for at least thirty EISs. OEA publishes a weekly notice in
(30) calendar days after release of the the FEDERAL REGISTER listing all EISs
FNSI and may allow more time for re- received during a given week. The 45-
85
§ 6.402 40 CFR Ch. I (7–1–00 Edition)
day and 30-day review periods for draft ing an EIS. If the EIS is not made
and final EISs, respectively, are com- available, OEA will consider retraction
puted from the Friday following a of the EIS or revision of the prescribed
given reporting week. Pursuant to 40 review periods based on the cir-
CFR 1506.9, responsible officials shall cumstances.
comply with the guidelines established
by OEA on the conduct of the filing FR 9829, Mar. 8, 1982]
system.
(b) Minimum time periods. No decision § 6.402 Availability of documents.
on EPA actions shall be made until the
(a) General. The responsible official
later of the following dates:
will ensure sufficient copies of the EIS
(1) Ninety (90) days after the date es-
are distributed to interested and af-
tablished in § 6.401(a) of this part from
fected members of the public and are
which the draft EIS review time period
made available for further public dis-
is computed.
tribution. EISs, comments received,
(2) Thirty (30) days after the date es-
and any underlying documents should
tablished in § 6.401(a) of this part from
be available to the public pursuant to
which the final EIS review time period
the provisions of the Freedom of Infor-
is computed.
mation Act (5 U.S.C. 552(b)), without
(c) Filing of EISs. All EISs, including
regard to the exclusion for interagency
supplements, must be officially filed
memoranda where such memoranda
with OEA. Responsible officials shall
transmit comments of Federal agencies
transmit each EIS in five (5) copies to
on the environmental impact of the
the Director, Office of Environmental
proposed actions. To the extent prac-
Review, EIS Filing Section (A–104).
ticable, materials made available to
OEA will provide CEQ with one copy of
the public shall be provided without
each EIS filed. No EIS will be officially
charge; otherwise, a fee may be im-
filed by OER unless the EIS has been
posed which is not more than the ac-
made available to the public. OEA will
tual cost of reproducing copies required
not accept unbound copies of EISs for
to be sent to another Federal agency.
filing.
(b) Public information. Lists of all no-
(d) Extensions or waivers. The respon-
tices, determinations and other re-
sible official may independently extend
ports/documentation, related to these
review periods. In such cases, the re-
notices and determinations, involving
sponsible official shall notify OEA as
CEs, EAs, FNSIs, notices of intent,
soon as possible so that adequate no-
EISs, and RODs prepared by EPA shall
tice may be published in the weekly
be available for public inspection and
FEDERAL REGISTER report. OEA upon a
maintained by the responsible official
showing of compelling reasons of na-
as a monthly status report. OEA shall
tional policy may reduce the pre-
maintain a comprehensive list of no-
scribed review periods. Also, OEA upon
tices of intent and draft and final EISs
a showing by any other Federal agency
provided by all responsible officials for
of compelling reasons of national pol-
public inspection including publication
icy may extend prescribed review peri-
in the FEDERAL REGISTER. In addition,
ods, but only after consultation with
OEA will make copies of all EPA-pre-
the responsible official. If the respon-
pared EISs available for public inspec-
sible official does not concur with the
tion; the responsible official shall do
extension of time, OEA may not extend
the same for any EIS he/she under-
a prescribed review period more than 30
takes.
days beyond the minimum prescribed
review period. [44 FR 64177, Nov. 6, 1979, as amended at 51
(e) Rescission of filed EISs. The respon- FR 32611, Sept. 12, 1986]
sible official shall file EISs with OEA
at the same time they are transmitted § 6.403 The commenting process.
to commenting agencies and made (a) Inviting comments. After preparing
available to the public. The responsible a draft EIS and before preparing a final
official is required to reproduce an ade- EIS, the responsible official shall ob-
quate supply of EISs to satisfy these tain the comments of Federal agencies,
distribution requirements prior to fil- other governmental entities and the
86
public in accordance with 40 CFR § 6.501(b) and building as described in

1503.1. § 6.501(c).
(b) Response to comments. The respon- (e) Applicant means any individual,
sible official shall respond to com- agency, or entity which has filed an ap-
ments in the final EIS in accordance plication for grant assistance under 40
with 40 CFR 1503.4. CFR part 35, subpart E or I.
(f) Grantee means any individual,
§ 6.404 Supplements. agency, or entity which has been
(a) General. The responsible official awarded wastewater treatment con-
shall consider preparing supplements struction grant assistance under 40
to draft and final EISs in accordance CFR part 35, subpart E or I.
with 40 CFR 1502.9(c). A supplement (g) Responsible Official means a Fed-
shall be prepared, circulated and filed eral or State official authorized to ful-
in the same fashion (exclusive of fill the requirements of this subpart.
scoping) as draft and final EISs. The responsible Federal official is the
(b) Alternative procedures. In the case EPA Regional Administrator and the
where the responsible official wants to responsible State official is as defined
deviate from existing procedures, OEA in a delegation agreement under 205(g)
shall be consulted. OEA shall consult of the Clean Water Act. The respon-
with CEQ on any alternative arrange- sibilities of the State official are sub-
ments. ject to the limitations in § 6.514 of this
subpart.
[44 FR 64177, Nov. 6, 1979, as amended at 47 (h) Approval of the facilities plan
FR 9829, Mar. 8, 1982] means approval of the facilities plan
for a proposed wastewater treatment
Subpart E—Environmental Review works pursuant to 40 CFR part 35, sub-
Procedures for Wastewater part E or I.
Treatment Construction Grants § 6.502 Applicability and limitations.
Program
(a) Applicability. This subpart applies
to the following actions:
SOURCE: 50 FR 26317, June 25, 1985, unless
otherwise noted.
(1) Approval of a facilities plan or an
amendment to the plan;
§ 6.500 Purpose. (2) Award of grant assistance for a
project where signficant change has oc-
This subpart amplifies the procedures curred in the project or its impact
described in subparts A through D with since prior compliance with this part;
detailed environmental review proce- and
dures for the Municipal Wastewater (3) Approval of preliminary Step 3
Treatment Works Construction Grants work prior to the award of grant assist-
Program under Title II of the Clean ance pursuant to 40 CFR part 35, sub-
Water Act. part E or I.
(b) Limitations. (1) Except as provided
§ 6.501 Definitions.
in § 6.504(c), all recipients of Step 1
(a) Step 1 facilities planning means grant assistance must comply with the
preparation of a plan for facilities as requirements, steps, and procedures de-
described in 40 CFR part 35, subpart E scribed in this subpart.
or I. (2) As specified in 40 CFR 35.2113,
(b) Step 2 means a project to prepare projects that have not received Step 1
design drawings and specifications as grant assistance must comply with the
described in 40 CFR part 35, subpart E requirements of this subpart prior to
or I. submission of an application for Step 3
(c) Step 3 means a project to build a or Step 2=3 grant assistance.
publicly owned treatment works as de- (3) Except as otherwise provided in
scribed in 40 CFR part 35, subpart E or § 6.507, no step 3 or 2=3 grant assistance
I. may be awarded for the construction of
(d) Step 2=3 means a project which any component/portion of a proposed
combines preparation of design draw- wastewater treatment system(s) until
ings and specifications as described in the responsible official has:
87
§ 6.503 40 CFR Ch. I (7–1–00 Edition)
(i) Completed the environmental re- Step 1 facilities planning grantee

view for all complete wastewater treat- awarded a Step 1 grant on or before De-
ment system alternatives under consid- cember 29, 1981 may request a categor-
eration for the facilities planning area, ical exclusion at any time during Step
or any larger study area identified for 1 facilities planning. A potential Step 3
the purposes of conducting an adequate or Step 2=3 grant applicant may re-
environmental review as required quest a categorical exclusion at any
under this subpart; and time before the submission of a Step 3
(ii) Recorded the selection of the pre- or Step 2=3 grant application.
ferred alternative(s) in the appropriate (c) Documenting environmental infor-
decision document (ROD for EISs, mation. If the project is determined to
FNSI for environmental assessments, be ineligible for a categorical exclu-
or written determination for categor- sion, or if no request for a categorical
ical exclusions). exclusion is made, the potential Step 3
(4) In accord with § 6.302(f), on or or Step 2=3 applicant or the Step 1
after October 18, 1982, no new expendi- grantee subsequently prepares an Envi-
tures or financial assistance involving ronmental Information Document
the construction grants program can (EID) (§ 6.506) for the project.
be made within the Coastal Barrier Re- (d) Preparing environmental assess-
source System, or for projects outside ments. Except as provided in § 6.506(c)(4)
the system which would have the effect and following a review of the EID by
of encouraging development in the sys- EPA or by a State with delegated au-
tem, other than specified exceptions thority, EPA prepares an environ-
made by the EPA after consultation mental assessment (§ 6.506), or a State
with the Secretary of the Interior. with delegated authority (§ 6.514) pre-
[50 FR 26317, June 25, 1985, as amended at 51 pares a preliminary environmental as-
FR 32611, Sept. 12, 1986] sessment. EPA reviews and finalizes
any preliminary assessments. EPA sub-
§ 6.503 Overview of the environmental sequently:
review process.
(1) Prepares and issues a Finding of
The process for conducting an envi- No Significant Impact (FNSI) (§ 6.508);
ronmental review of wastewater treat- or
ment construction grant projects in- (2) Prepares and issues a Notice of In-
cludes the following steps: tent to prepare an original or supple-
(a) Consultation. The Step 1 grantee mental EIS (§ 6.510) and Record of Deci-
or the potential Step 3 or Step 2=3 ap- sion (ROD) (§ 6.511).
plicant is encouraged to consult with (e) Monitoring. The construction and
the State and EPA early in project for- post-construction operation and main-
mulation or the facilities planning tenance of the facilities are monitored
stage to determine whether a project is (§6.512) to ensure implementation of
eligible for a categorical exclusion mitigation measures (§ 6.511) identified
from the remaining substantive envi- in the FNSI or ROD.
ronmental review requirements of this
part (§ 6.505), to determine alternatives [50 FR 26317, June 25, 1985, as amended at 51
to the proposed project for evaluation, FR 32611, Sept. 12, 1986]
to identify potential environmental
issues and opportunities for public § 6.504 Consultation during the facili-
recreation and open space, and to de- ties planning process.
termine the potential need for parti- (a) General. Consistent with 40 CFR
tioning the environmental review proc- 1501.2 and 35.2030(c), the responsible of-
ess and/or the need for an Environ- ficial shall initiate the environmental
mental Impact Statement (EIS). review process early to identify envi-
(b) Determining categorical exclusion ronmental effects, avoid delays, and re-
eligibility. At the request of a potential solve conflicts. The environmental re-
Step 3 or Step 2=3 grant applicant, or a view process should be integrated
Step 1 facilities planning grantee, the throughout the facilities planning
responsible official will determine if a process. Two processes for consultation
project is eligible for a categorical ex- are described in this section to meet
clusion in accordance with § 6.505. A this objective. The first addresses
88
projects awarded Step 1 grant assist- velopment. These meetings should be

ance on or before December 29, 1981. held after completion of the majority
The second applies to projects not re- of the EID document and before a pre-
ceiving grant assistance for facilities ferred alternative is selected. Since
planning on or before December 29, 1981 any required EIS must be completed
and, therefore, subject to the regula- before the approval of a facilities plan,
tions implementing the Municipal a decision whether to prepare an EIS is
Wastewater Treatment Construction encouraged early during the facilities
Grant Amendments of 1981 (40 CFR part planning process. These meetings may
35, subpart I). assist in this early determination. EPA
(b) Projects receiving Step 1 grant as- should inform interested parties of the
sistance on or before December 29, 1981. following:
(1) During facilities planning, the
(i) The preliminary nature of the
grantee shall evaluate project alter-
Agency’s position on preparing an EIS;
natives and the existence of environ-
mentally important resource areas in- (ii) The relationship between the fa-
cluding those identified in § 6.108 and cilities planning and environmental re-
§ 6.509 of this subpart, and potential for view processes;
open space and recreation opportuni- (iii) The desirability of public input;
ties in the facilities planning area. and
This evaluation is intended to be brief (iv) A contact person for further in-
and concise and should draw on exist- formation.
ing information from EPA, State agen- (c) Projects not receiving grant assist-
cies, regional planning agencies, ance for Step 1 facilities planning on or
areawide water quality management before December 29, 1981. Potential Step
agencies, and the Step 1 grantee. The 3 or Step 2=3 grant applicants should,
Step 1 grantee should submit this in- in accordance with § 35.2030(c), consult
formation to EPA or a delegated State with EPA and the State early in the fa-
at the earliest possible time during facilities planning process to determine
cilities planning to allow EPA to deter- the appropriateness of a categorical ex-
mine if the action is eligible for a cat- clusion, the scope of an EID, or the ap-
egorical exclusion. The evaluation and propriateness of the early preparation
any additional analysis deemed nec- of an environmental assessment or an
essary by the responsible official may EIS. The consultation would be most
be used by EPA to determine whether useful during the evaluation of project
the action is eligible for a categorical alternatives prior to the selection of a
exclusion from the substantive envi- preferred alternative to assist in re-
ronmental review requirements of this solving any identified environmental
part. If a categorical exclusion is problems.
granted, the grantee will not be re-
quired to prepare a formal EID nor will § 6.505 Categorical exclusions.
the responsible official be required to
prepare an environmental assessment (a) General. At the request of an ex-
under NEPA. If an action is not grant- isting Step 1 facilities planning grant-
ed a categorical exclusion, this evalua- ee or of a potential Step 3 or Step 2=3
tion may be used to determine the grant applicant, the responsible offi-
scope of the EID required of the grant- cial, as provided for in §§ 6.107(b),
ee. This information can also be used 6.400(f) and 6.504(a), shall determine
to make an early determination of the from existing information and docu-
need for partitioning the environment whether an action is consistent
mental review or for an EIS. Whenever with the categories eligible for exclu-
possible, the Step 1 grantee should dis- sion from NEPA review identified in
cuss this initial evaluation with both § 6.107(d) or § 6.505(b) and not incon-
the delegated State and EPA. sistent with the criteria in § 6.107(e) or
(2) A review of environmental infor- § 6.505(c).
mation developed by the grantee (b) Specialized categories of actions eli-
should be conducted by the responsible gible for exclusion. For this subpart, eli-
official whenever meetings are held to gible actions consist of any of the cat-
assess the progress of facilities plan de- egories in § 6.107(d), or:
89
§ 6.506 40 CFR Ch. I (7–1–00 Edition)
(1) Actions for which the facilities (2) For all categorical exclusion de-
planning is consistent with the cat- terminations:
egory listed in § 6.107(d)(1) which do not (i) That are five or more years old on
affect the degree of treatment or ca- projects awaiting Step 2=3 or Step 3
pacity of the existing facility includ- grant funding, the responsible official
ing, but not limited to, infiltration and shall re-evaluate the project, environ-
inflow corrections, grant-eligible re- mental conditions and public views
placement of existing mechanical and, prior to grant award, either:
equipment or structures, and the con- (A) Reaffirm—issue a public notice re-
struction of small structures on exist- affirming EPA’s decision to proceed
ing sites; with the project without need for any
(2) Actions in sewered communities further environmental review;
of less than 10,000 persons which are for (B) Supplement—update the informa-
minor upgrading and minor expansion tion in the decision document on the
of existing treatment works. This cat- categorically excluded project and pre-
egory does not include actions that di- pare, issue, and distribute a revised no-
rectly or indirectly involve the exten- tice in accordance with § 6.107(f); or
sion of new collection systems funded (C) Reassess—revoke the categorical
with Federal or other sources of funds; exclusion in accordance with § 6.107(c)
(3) Actions in unsewered commu- and require a complete environmental
nities of less than 10,000 persons where review to determine the need for an
on-site technologies are proposed; or EIS in accordance with § 6.506, followed
(4) Other actions are developed in ac- by preparation, issuance and distribu-
cordance with § 6.107(f). tion of an EA/FNSI or EIS/ROD.
(c) Specialized Criteria for not granting (ii) That are made on projects that
a categorical exclusion. (1) The full envi- have been awarded a Step 2=3 grant,
ronmental review procedures of this the responsible official shall, at the
part must be followed if undertaking time of plans and specifications review
an action consistent with the cat- under § 35.2202(b) of this title, assess
egories described in paragraph (b) of whether the environmental conditions
this section meets any of the criteria or the project’s anticipated impact on
listed in § 6.107(e) or when: the environment have changed and,
(i) The facilities to be provided will prior to plans and specifications ap-
(A) create a new, or (B) relocate an ex- proval, advise the Regional Adminis-
isting, discharge to surface or ground trator if additional environmental re-
waters; view is necessary.
(ii) The facilities will result in sub-
stantial increases in the volume of dis- [50 FR 26317, June 25, 1985, as amended at 51
charge or the loading of pollutants FR 32611, Sept. 12, 1986]
from an existing source or from new fa-
§ 6.506 Environmental review process.
cilities to receiving waters; or
(iii) The facilities would provide ca- (a) Review of completed facilities plans.
pacity to serve a population 30% great- The responsible official shall ensure a
er than the existing population. review of the completed facilities plan
(d) Proceeding with grant awards. (1) with particular attention to the EID
After a categorical exclusion on a pro- and its utilization in the development
posed treatment works has been grant- of alternatives and the selection of a
ed, and notices published in accordance preferred alternative. An adequate EID
with § 6.400(f), grant awards may pro- shall be an integral part of any facili-
ceed without being subject to any fur- ties plan submitted to EPA or to a
ther environmental review require- State. The EID shall be of sufficient
ments under this part, unless the re- scope to enable the responsible official
sponsible official later determines that to make determinations on requests for
the project, or the conditions at the partitioning the environmental review
time the categorical determination process in accordance with § 6.507 and
was made, have changed significantly for preparing environmental assess-
since the independent EPA review of ments in accordance with § 6.506(b).
information submitted by the grantee (b) Environmental assessment. The en-
in support of the exclusion. vironmental assessment process shall
90
cover all potentially significant environmental impacts should be clearly

ronmental impacts. The responsible of- referenced and documented. These
ficial shall prepare a preliminary envi- sources should include, as appropriate
ronmental assessment on which to base but not limited to, local, tribal, re-
a recommendation to finalize and issue gional, State, and Federal agencies as
the environmental assessment/FNSI. well as public and private organiza-
For those States delegated environ- tions and institutions with responsi-
mental review responsibilities under bility or interest in the types of condi-
§ 6.514, the State responsible official tions listed in § 6.509 and in subpart C of
shall prepare the preliminary environ- this part.
mental assessment in sufficient detail (5) Analysis of alternatives. This dis-
to serve as an adequate basis for EPA’s cussion shall include a comparative
independent NEPA review and decision analysis of feasible alternatives, in-
to finalize and issue an environmental cluding the no action alternative,
assessment/FNSI or to prepare and throughout the study area. The alter-
issue a notice of intent for an EIS/ROD. natives shall be screened with respect
The EPA also may require submission to capital and operating costs; direct,
of supplementary information before indirect, and cumulative environ-
the facilities plan is approved if needed mental effects; physical, legal, or insti-
for its independent review of the tutional constraints; and compliance
State’s preliminary assessment for with regulatory requirements. Special
compliance with environmental review attention should given to: the environ-
requirements. Substantial requests for mental consequences of long-term, ir-
supplementary information by EPA, reversible, and induced impacts; and
including the review of the facilities for projects initiated after September
plan, shall be made in writing. Each of 30, 1978, that grant applicants have sat-
the following subjects outlined below, isfactorily demonstrated analysis of
and requirements of subpart C of this potential recreation and open-space op-
part, shall be reviewed by the respon- portunities in the planning of the pro-
sible official to identify potentially posed treatment works. The reasons for
significant environmental concerns rejecting any alternatives shall be pre-
and their associated potential impacts, sented in addition to any significant
and the responsible official shall fur- environmental benefits precluded by
thermore address these concerns and rejection of an alternative. The anal-
impacts in the environmental assess-
ysis should consider when relevant to
ment:
the project:
(1) Description of the existing environ-
(i) Flow and waste reduction meas-
ment. For the delineated facilities plan-
ures, including infiltration/inflow re-
ning area, the existing environmental
duction and pretreatment require-
conditions relevant to the analysis of
ments;
alternatives, or to determining the en-
vironmental impacts of the proposed (ii) Appropriate water conservation
action, shall be considered. measures;
(2) Description of the future environ- (iii) Alternative locations, capacities,
ment without the project. The relevant and construction phasing of facilities;
future environmental conditions shall (iv) Alternative waste management
be described. The no action alternative techniques, including pretreatment,
should be discussed. treatment and discharge, wasterwater
(3) Purpose and need. This should in- reuse, land application, and individual
clude a summary discussion and dem- systems;
onstration of the need, or absence of (v) Alternative methods for manage-
need, for wastewater treatment in the ment of sludge, other residual mate-
facilities planning area, with par- rials, including utilization options such
ticular emphasis on existing public as land application, composting, and
health or water quality problems and conversion of sludge for marketing as a
their severity and extent. soil conditioner or fertilizer;
(4) Documentation. Citations to infor- (vi) Improving effluent quality
mation used to describe the existing through more efficient operation and
environment and to assess future envi- maintenance;
91
§ 6.507 40 CFR Ch. I (7–1–00 Edition)
(vii) Appropriate energy reduction (c) FNSI/EIS determination. The re-

measures; and sponsible official shall apply the cri-
(viii) Multiple use including recre- teria under § 6.509 to the following:
ation, other open space, and environ- (1) A complete facilities plan;
mental education. (2) The EID;
(6) Evaluating environmental con- (3) The preliminary environmental
sequences of proposed action. A full assessment; and
range of relevant impacts of the pro- (4) Other documentation, deemed
posed action shall be discussed, includ- necessary by the responsible official
ing measures to mitigate adverse im- adequate to make an EIS determina-
pacts, any irreversible or irretrievable tion by EPA. Where EPA determines
commitments of resources to the that an EIS is to be prepared, there is
project and the relationship between no need to prepare a formal environ-
local short-term uses of the environmental assessment. If EPA or the State
ment and the maintenance and en- identifies deficiencies in the EID, pre-
hancement of long-term productivity. liminary environmental assessment, or
Any specific requirements, including other supporting documentation, nec-
grant conditions and areawide waste essary corrections shall be made to
treatment management plan require- this documentation before the condi-
ments, should be identified and ref- tions of the Step 1 grant are considered
erenced. In addition to these items, the satisfied or before the Step 3 or Step
responsible official may require that 2=3 application is considered complete.
other analyses and data in accordance The responsible official’s determina-
tion to issue a FNSI or to prepare an
with subpart C which are needed to sat-
EIS shall constitute final Agency ac-
isfy environmental review require-
tion, and shall not be subject to admin-
ments be included with the facilities
istrative review under 40 CFR part 30,
plan. Such requirements should be dis- subpart L.
cussed whenever meetings are held
with Step 1 grantees or potential Step [50 FR 26317, June 25, 1985, as amended at 51
3 or Step 2 = 3 applicants. FR 32612, Sept. 12, 1986]
(7) Minimizing adverse effects of the
§ 6.507 Partitioning the environmental
proposed action. (i) Structural and non- review process.
structural measures, directly or indi-
rectly related to the facilities plan, to (a) Purpose. Under certain cir-
mitigate or eliminate adverse effects cumstances the building of a compo-
on the human and natural environ- nent/portion of a wastewater treatment
ments, shall be identified during the system may be justified in advance of
environmental review. Among other completing all NEPA requirements for
measures, structual provisions include the remainder of the system(s). When
there are overriding considerations of
changes in facility design, size, and lo-
cost or impaired program effectiveness,
cation; non-structural provisions in-
the responsible official may award a
clude staging facilities, monitoring and
construction grant, or approve procure-
enforcement of environmental regula- ment by other than EPA funds, for a
tions, and local commitments to de- discrete component of a complete
velop and enforce land use regulations. wastewater treatment system(s). The
(ii) The EPA shall not accept a facili- process of partitioning the environ-
ties plan, nor award grant assistance mental review for the discrete compo-
for its implementation, if the appli- nent shall comply with the criteria and
cant/grantee has not made, or agreed procedures described in paragraph (b)
to make, changes in the project, in ac- of this section. In addition, all reason-
cordance with determinations made in able alternatives for the overall waste-
a FNSI based on its supporting envi- water treatment works system(s) of
ronmental assessment or the ROD for a which the component is a part shall
EIS. The EPA shall condition a grant, have been previously identified, and
or seek other ways, to ensure that the each part of the environmental review
grantee will comply with such environ- for the remainder of the overall facili-
mental review determinations. ties system(s) in the planning area in
92
accordance with § 6.502(b)(3) shall com- (1) Review the request for parti-
ply with all requirements under § 6.506. tioning against all requirements of this
(b) Criteria for partitioning. (1) subpart;
Projects may be partitioned under the (2) If approvable, prepare and issue a
following circumstances: FNSI in accordance with § 6.508;
(i) To overcome impaired program ef- (3) Include a grant condition prohib-
fectiveness, the project component, in iting the building of additional or dif-
addition to meeting the criteria listed ferent components of the entire facili-
in paragraph (b)(2) of this section, must ties system(s) in the planning area as
immediately remedy a severe public described in § 6.502(b)(3)(i).
health, water quality or other environ-
mental problem; or
FR 32612, Sept. 12, 1986]
(ii) To significantly reduce direct
costs on EPA projects, or other related § 6.508 Finding of No Significant Im-
public works projects, the project compact (FNSI) determination.
ponent (such as major pieces of equip-
(a) Criteria for producing and distrib-
ment, portions of conveyances or small
uting FNSIs. If, after completion of the
structures) in addition to meeting the
environmental review, EPA determines
criteria listed in paragraph (b)(2) of
that an EIS will not be required, the
this section, must achieve a cost sav-
responsible official shall issue a FNSI
ings to the Federal Government and/or
in accordance with §§ 6.105(f) and
to the grantee’s or potential grantee’s
6.400(d). The FNSI will be based on
overall costs incurred in procuring the
EPA’s independent review of the pre-
wastewater treatment component(s)
liminary environmental assessment
and/or the installation of other related
and any other environmental informa-
public works projects funded in coordi-
tion deemed necessary by the respon-
nation with other Federal, State, tribal
sible official consistent with the re-
or local agencies.
quirements of § 6.506(c). Following the
(2) The project component also must:
Agency’s independent review, the envi-
(i) Not foreclose any reasonable al- ronmental assessment will be finalized
ternatives identified for the overall and either be incorporated into, or at-
wastewater treatment works system(s); tached to, the FNSI. The FNSI shall
(ii) Not cause significant adverse di- list all mitigation measures as defined
rect or indirect environmental impacts in § 1508.20 of this title, and specifically
including those which cannot be ac- identify those mitigation measures
ceptably mitigated without completing necessary to make the recommended
the entire wastewater treatment sys- alternative environmentally accept-
tem of which the component is a part; able.
and (b) Proceeding with grant awards. (1)
(iii) Not be highly controversial. Once an environmental assessment has
(c) Requests for partitioning. The ap- been prepared and the issued FNSI be-
plicant’s or State’s request for parti- comes effective for the treatment
tioning must contain the following: works within the study area, grant
(1) A description of the discrete com- awards may proceed without prepara-
ponent proposed for construction be- tion of additional FNSIs, unless the re-
fore completing the environmental responsible official later determines that
view of the entire facilities plan; the project or environmental condi-
(2) How the component meets the tions have changed significantly from
above criteria; that which underwent environmental
(3) The environmental information review.
required by § 6.506 of this subpart for (2) For all environmental assessment/
the component; and FNSI determinations:
(4) Any preliminary information that (i) That are five or more years old on
may be important to EPA in an EIS de- projects awaiting Step 2=3 or Step 3
termination for the entire facilities grant funding, the responsible official
plan (§ 6.509). shall re-evaluate the project, environ-
(d) Approval of requests for parti- mental conditions and public views
tioning. The responsible official shall: and, prior to grant award, either:
93
§ 6.509 40 CFR Ch. I (7–1–00 Edition)
(A) Reaffirm—issue a public notice re- § 6.510 Environmental Impact State-

affirming EPA’s decision to proceed ment (EIS) preparation.
with the project without revising the (a) Steps in preparing EISs. In addition
environmental assessment; to the requirements specified in sub-
(B) Supplement—update information parts A, B, C, and D of this part, the re-
and prepare, issue and distribute a responsible official will conduct the fol-
vised EA/FNSI in accordance with lowing activities:
§§ 6.105(f) and 6.400(d); or (1) Notice of intent. If a determination
(C) Reassess—withdraw the FNSI and is made that an EIS will be required,
publish a notice of intent to produce an the responsible official shall prepare
EIS followed by the preparation, and distribute a notice of intent as re-
issuance and distribution of the EIS/ quired in § 6.105(e) of this part.
ROD. (2) Scoping. As soon as possible, after
(ii) That are made on projects that the publication of the notice of intent,
have been awarded a Step 2=3 grant, the responsible official will convene a
the responsible official shall, at the meeting of affected Federal, State and
time of plans and specifications review local agencies, or affected Indian
under § 35.2202(b) of this title, assess tribes, the grantee and other interested
whether the environmental conditions parties to determine the scope of the
or the project’s anticipated impact on EIS. A notice of this scoping meeting
must be made in accordance with
the environment have changed and,
§ 6.400(a) and 40 CFR 1506.6(b). As part
prior to plans and specifications ap-
of the scoping meeting EPA, in co-
proval, advise the Regional Adminis- operation with any delegated State,
trator if additional environmental re- will as a minimum:
view is necessary. (i) Determine the significance of
[51 FR 32612, Sept. 12, 1986] issues for and the scope of those sig-
nificant issues to be analyzed in depth,
§ 6.509 Criteria for initiating Environ- in the EIS;
mental Impact Statements (EIS). (ii) Identify the preliminary range of
(a) Conditions requiring EISs. (1) The alternatives to be considered;
responsible official shall assure that an (iii) Identify potential cooperating
EIS will be prepared and issued when it agencies and determine the informa-
is determined that the treatment tion or analyses that may be needed
works or collector system will cause from cooperating agencies or other par-
any of the conditions under § 6.108 to ties;
exist, or when (iv) Discuss the method for EIS prep-
aration and the public participation
(2) The treated effluent is being dis-
strategy;
charged into a body of water where the
(v) Identify consultation require-
present classification is too lenient or
ments of other environmental laws, in
is being challenged as too low to pro- accordance with subpart C; and
tect present or recent uses, and the ef-
(vi) Determine the relationship be-
fluent will not be of sufficient quality tween the EIS and the completion of
or quantity to meet the requirements the facilities plan and any necessary
of these uses. coordination arrangements between
(b) Other conditions. The responsible the preparers of both documents.
official shall also consider preparing an (3) Identifying and evaluating alter-
EIS if: The project is highly controver- natives. Immediately following the
sial; the project in conjunction with re- scoping process, the responsible official
lated Federal, State, local or tribal re- shall commence the identification and
source projects produces significant cu- evaluation of all potentially viable al-
mulative impacts; or if it is determined ternatives to adequately address the
that the treatment works may violate range of issues identified in the scoping
Federal, State, local or tribal laws or process. Additional issues may be ad-
requirements imposed for the protec- dressed, or others eliminated, during
tion of the environment. this process and the reasons docu-
mented as part of the EIS.
94
(b) Methods for preparing EISs. After § 6.511 Record of Decision (ROD) for
EPA determines the need for an EIS, it EISs and identification of mitiga-
shall select one of the following meth- tion measures.
ods for its preparation: (a) Record of Decision. After a final
(1) Directly by EPA’s own staff; EIS has been issued, the responsible of-
(2) By EPA contracting directly with ficial shall prepare and issue a ROD in
a qualified consulting firm; accordance with 40 CFR 1505.2 prior to,
(3) By utilizing a third party method, or in conjunction with, the approval of
whereby the responsible official enters the facilities plan. The ROD shall in-
into ‘‘third party agreements’’ for the clude identification of mitigation
applicant to engage and pay for the measures derived from the EIS process
services of a third party contractor to including grant conditions which are
prepare the EIS. Such agreement shall necessary to minimize the adverse im-
not be initiated unless both the appli- pacts of the selected alternative.
cant and the responsible official agree (b) Specific mitigation measures. Prior
to its creation. A third party agree- to the approval of a facilities plan, the
ment will be established prior to the responsible official must ensure that
applicant’s EID and eliminate the need effective mitigation measures identi-
for that document. In proceeding under fied in the ROD will be implemented by
the third party agreement, the respon- the grantee. This should be done by re-
sible official shall carry out the fol- vising the facilities plan, initiating
lowing practices: other steps to mitigate adverse effects,
(i) In consultation with the appli- or including conditions in grants re-
cant, choose the third party contractor quiring actions to minimize effects.
and manage that contract; Care should be exercised if a condition
(ii) Select the consultant based on is to be imposed in a grant document
to assure that the applicant possesses
ability and an absence of conflict of in-
the authority to fulfill the conditions.
terest. Third party contractors will be
required to execute a disclosure state- (c) Proceeding with grant awards. (1)
Once the ROD has been prepared on the
ment prepared by the responsible offi-
selected, or preferred, alternative(s) for
cial signifying they have no financial
the treatment works described within
or other conflicting interest in the out-
the EIS, grant awards may proceed
come of the project; and
without the preparation of supple-
(iii) Specify the information to be de- mental EISs unless the responsible of-
veloped and supervise the gathering, ficial later determines that the project
analysis and presentation of the infor- or the environmental conditions de-
mation. The responsible official shall scribed within the current EIS have
have sole authority for approval and changed significantly from the pre-
modification of the statements, anal- vious environmental review in accord-
yses, and conclusions included in the ance with § 1502.9(c) of this title.
third party EIS; or (2) For all EIS/ROD determinations:
(4) By utilizing a joint EPA/State (i) That are five or more years old on
process on projects within States projects awaiting Step 2=3 or Step 3
which have requirements and proce- grant funding, the responsible official
dures comparable to NEPA, whereby shall re-evaluate the project, environ-
the EPA and the State agree to prepare mental conditions and public views
a single EIS document to fulfill both and, prior to grant award, either:
Federal and State requirements. Both (A) Reaffirm—issue a public notice re-
EPA and the State shall sign a Memo- affirming EPA’s decision to proceed
randum of Agreement which includes with the project, and documenting that
the responsibilities and procedures to no additional significant impacts were
be used by both parties for the prepara- identified during the re-evaluation
tion of the EIS as provided for in 40 which would require supplementing the
CFR 1506.2(c). EIS; or
95
§ 6.512 40 CFR Ch. I (7–1–00 Edition)
(B) Supplement—conduct additional should be coordinated with any other

studies and prepare, issue and dis- applicable public participation pro-
tribute a supplemental EIS in accord- gram wherever possible.
ance with § 6.404 and document the (c) Scope. The requirements of 40 CFR
original, or any revised, decision in an 6.400 shall be fulfilled, and consistent
addendum to the ROD. with 40 CFR 1506.6, the responsible offi-
(ii) That are made on projects that cial may institute such additional
have been awarded a Step 2=3 grant, NEPA-related public participation pro-
the responsible official shall, at the cedures as are deemed necessary during
time of plans and specifications review the environmental review process.
under § 35.2202(b) of this title, assess [50 FR 26317, June 25, 1985, as amended at 51
whether the environmental conditions FR 32613, Sept. 12, 1986]
or the project’s anticipated impact on
the environment have changed, and § 6.514 Delegation to States.
prior to plans and specifications ap- (a) General. Authority delegated to
proval, advise the Regional Adminis- the State under section 205(g) of the
trator if additional environmental re- Clean Water Act to review a facilities
view is necessary. plan may include all EPA activities
[50 FR 26317, June 25, 1985, as amended at 51 under this part except for the fol-
FR 32613, Sept. 12, 1986] lowing:
(1) Determinations of whether or not
§ 6.512 Monitoring for compliance. a project qualifies for a categorical ex-
(a) General. The responsible official clusion;
shall ensure adequate monitoring of (2) Determinations to partition the
mitigation measures and other grant environmental review process;
conditions identified in the FNSI, or (3) Finalizing the scope of an EID
ROD. when required to adequately conclude
(b) Enforcement. If the grantee fails to an independent review of a preliminary
comply with grant conditions, the re- environmental assessment;
sponsible official may consider apply- (4) Finalizing the scope of an environ-
ing any of the sanctions specified in 40 mental assessment, and finalization,
CFR 30.900. approval and issuance of a final envi-
ronmental assessment;
§ 6.513 Public participation. (5) Determination to issue, and
(a) General. Consistent with public issuance of, a FNSI based on a com-
participation regulations in part 25 of pleted (§ 6.508) or partitioned
this title, and subpart D of this part, it (§ 6.507(d)(2)) environmental review;
is EPA policy that certain public par- (6) Determination to issue, and
ticipation steps be achieved before the issuance of, a notice of intent for pre-
State and EPA complete the environ- paring an EIS;
mental review process. As a minimum, (7) Preparation of EISs under
all potential applicants that do not § 6.510(b) (1) and (2), final decisions re-
qualify for a categorical exclusion quired for preparing an EIS under
shall conduct the following steps in ac- § 6.510(b)(3), finalizing the agreement to
cordance with procedures specified in prepare an EIS under § 6.510(b)(4), final-
part 25 of this title: izing the scope of an EIS, and issuance
(1) One public meeting when alter- of draft, final and supplemental EISs;
natives have been developed, but before (8) Preparation and issuance of the
an alternative has been selected, to dis- ROD based on an EIS;
cuss all alternatives under consider- (9) Final decisions under other appli-
ation and the reasons for rejection of cable laws described in subpart C of
others; and this part;
(2) One public hearing prior to formal (10) Determination following re-eval-
adoption of a facilities plan to discuss uations of projects awaiting grant
the proposed facilities plan and any funding in the case of Step 3 projects
needed mitigation measures. whose existing evaluations and/or deci-
(b) Coordination. Public participation sion documents are five or more years
activities undertaken in connection old, or determinations following re-
with the environmental review process evaluations on projects submitted for
96
plans and specifications review and ap- (b) The term applicant for the sake of
proval in the case of awarded Step 2=3 this subpart means any person who ap-
projects where the EPA Regional Ad- plies to EPA for the issuance of an
ministrator has been advised that addi- NPDES permit to discharge as a new
tional environmental review is nec- source.
essary, in accordance with § 6.505(d)(2),
§ 6.508(b)(2) or § 6.511(c)(2); and FR 9831, Mar. 8, 1982]
(11) Maintenance of official EPA
monthly status reports as required § 6.602 Applicability.
under § 6.402(b).
(a) General. The procedures set forth
(b) Elimination of duplication. The re-
under subparts A, B, C and D, and this
sponsible official shall assure that
maximum efforts are undertaken to subpart shall apply to the issuance of
minimize duplication within the limits new source NPDES permits, except for
described under paragraph (a) of this the issuance of a new source NPDES
section. In carrying out requirements permit from any State which has an
under this subpart, maximum consider- approved NPDES program in accord-
ation shall be given to eliminating du- ance with section 402(b) of the Clean
plication in accordance with § 1506.2 of Water Act.
(b) New Source Determination. An
this title. Where there are State or
NPDES permittee must be determined
local procedures comparable to NEPA,
a new source before these procedures
EPA should enter into memoranda of
apply. New source determinations will
understanding with these States con-
be undertaken pursuant to the provi-
cerning workload distribution and re-
sions of the permit regulations under
sponsibilities not specifically reserved
§ 122.29(a) and (b) of this chapter and
to EPA in paragraph (a) of this section
§ 122.53(h).
for implementing the environmental
review and facilities planning process. [44 FR 64177, Nov. 6, 1979, as amended at 47
FR 9831, Mar. 8, 1982; 51 FR 32613, Sept. 12,
[50 FR 26317, June 25, 1985, as amended at 51 1986]
FR 32613, Sept. 12, 1986]
§ 6.603 Limitations on actions during
Subpart F—Environmental Review environmental review process.
Procedures for the New The processing and review of an ap-
Source NPDES Program plicant’s NPDES permit application
shall proceed concurrently with the
§ 6.600 Purpose. procedures within this subpart. Actions
(a) General. This subpart provides undertaken by the applicant or EPA
procedures for carrying out the envi- shall be performed consistent with the
ronmental review process for the requirements of § 122.29(c) of this chap-
issuance of new source National Pollut- ter.
ant Discharge Elimination System [47 FR 9831, Mar. 8, 1982, as amended at 51 FR
(NPDES) discharge permits authorized 32613, Sept. 12, 1986]
under section 306, section 402, and sec-
tion 511(c)(1) of the Clean Water Act. § 6.604 Environmental review process.
(b) Permit regulations. All references (a) New source. If EPA’s initial deter-
in this subpart to the permit regulations mination under § 6.602(b) is that the fa-
shall mean parts 122 and 124 of title 40 cility is a new source, the responsible
of the CFR relating to the NPDES pro- official shall evaluate any environ-
gram. mental information to determine if
[44 FR 64177, Nov. 6, 1979, as amended at 47 any significant impacts are anticipated
FR 9831, Mar. 8, 1982] and an EIS is necessary. If the permit
applicant requests, the responsible offi-
§ 6.601 Definitions. cial shall establish time limits for the
(a) The term administrative action for completion of the environmental re-
the sake of this subpart means the view process consistent with 40 CFR
issuance by EPA of an NPDES permit 1501.8.
to discharge as a new source, pursuant (b) Information needs. Information
to 40 CFR 124.15. necessary for a proper environmental
97
§ 6.604 40 CFR Ch. I (7–1–00 Edition)
review shall be provided by the permit (2) If, after the meeting of involved
applicant in an environmental infor- agencies, EPA has been determined to
mation document. The responsible offi- be the lead agency, the responsible offi-
cial shall consult with the applicant to cial may request that other involved
determine the scope of an environ- agencies be cooperating agencies. Co-
mental information document. In doing operating agencies shall be chosen and
this the responsible official shall con- shall be involved in the EIS prepara-
sider the size of the new source and the tion process in the manner prescribed
extent to which the applicant is capa- in the 40 CFR 1501.6(a). If EPA has been
ble of providing the required informa- determined to be a cooperating agency,
tion. The responsible official shall not the responsible official shall be in-
require the applicant to gather data or volved in assisting in the preparation
perform analyses which unnecessarily of the EIS in the manner prescribed in
duplicate either existing data or the re- 40 CFR 1501.6(b).
sults of existing analyses available to (f) Notice of intent. (1) If EPA is the
EPA. The responsible official shall lead agency for the preparation of an
keep requests for data to the minimum EIS, the responsible official shall ar-
consistent with his responsibilities range through OER for the publication
under NEPA. of the notice of intent in the FEDERAL
(c) Environmental assessment. The re- REGISTER, distribute the notice of in-
sponsible official shall prepare a writ- tent and arrange and conduct a scoping
ten environmental assessment based on meeting as outlined in 40 CFR 1501.7.
an environmental review of either the (2) If the responsible official and the
environmental information document permit applicant agree to a third party
and/or any other available environ- method of EIS preparation, pursuant to
mental information. § 6.604(g)(3) of this part, the responsible
official shall insure that a notice of in-
(d) EIS determination. (1) When the en-
tent is published and that a scoping
vironmental review indicates that a
meeting is held before the third party
significant environmental impact may
contractor begins work which may in-
occur and that the significant adverse
fluence the scope of the EIS.
impacts cannot be eliminated by mak-
(g) EIS method. EPA shall prepare
ing changes in the proposed new source EISs by one of the following means:
project, a notice of intent shall be (1) Directly by its own staff;
issued, and a draft EIS prepared and (2) By contracting directly with a
distributed. When the environmental qualified consulting firm; or
review indicates no significant impacts (3) By utilizing a third party method,
are anticipated or when the proposed whereby the responsible official enters
project is changed to eliminate the sig- into a third party agreement for the ap-
nificant adverse impacts, a FNSI shall plicant to engage and pay for the serv-
be issued which lists any mitigation ices of a third party contractor to pre-
measures necessary to make the rec- pare the EIS. Such an agreement shall
ommended alternative environ- not be initiated unless both the appli-
mentally acceptable. cant and the responsible official agree
(2) The FNSI together with the envi- to its creation. A third party agree-
ronmental assessment that supports ment will be established prior to the
the finding shall be distributed in ac- applicant’s environmental information
cordance with § 6.400(d) of this regula- document and eliminate the need for
tion. that document. In proceeding under
(e) Lead agency. (1) If the environ- the third party agreement, the respon-
mental review reveals that the prepa- sible official shall carry out the fol-
ration of an EIS is required, the re- lowing practices:
sponsible official shall determine if (i) In consultation with the appli-
other Federal agencies are involved cant, choose the third party contractor
with the project. The responsible offi- and manage that contract.
cial shall contact all other involved (ii) Select the consultant based on
agencies and together the agencies his ability and an absence of conflict of
shall decide the lead agency based on interest. Third party contractors will
the criteria set forth in 40 CFR 1501.5. be required to execute a disclosure
98
statement prepared by the responsible tors that should be considered in deter-

official signifying they have no finan- mining if these changes are environ-
cial or other conflicting interest in the mentally significant include but are
outcome of the project. not limited to: The nature and extent
(iii) Specify the information to be de- of the vacant land subject to increased
veloped and supervise the gathering, development pressure as a result of the
analysis and presentation of the infor- new source; the increases in population
mation. The responsible official shall or population density which may be in-
have sole authority for approval and duced and the ramifications of such
modification of the statements, anal- changes; the nature of land use regula-
yses, and conclusions included in the tions in the affected area and their po-
third party EIS.
tential effects on development and the
(h) Documents for the administrative
environment; and the changes in the
record. Pursuant to 40 CFR 124.9(b)(6)
availability or demand for energy and
and 124.18(b)(5) any environmental as-
sessment, FNSI EIS, or supplement to the resulting environmental con-
an EIS shall be made a part of the ad- sequences.
ministrative record related to permit (2) The new source will directly, or
issuance. through induced development, have
significant adverse effect upon local
[44 FR 64177, Nov. 6, 1979, as amended at 47 ambient air quality, local ambient
FR 9831, Mar. 8, 1982]
noise levels, floodplains, surface or
§ 6.605 Criteria for preparing EISs. groundwater quality or quantity, fish,
wildlife, and their natural habitats.
(a) General guidelines. (1) When deter-
mining the significance of a proposed (3) Any major part of the new source
new source’s impact, the responsible will have significant adverse effect on
official shall consider both its short the habitat of threatened or endan-
term and long term effects as well as gered species on the Department of the
its direct and indirect effects and bene- Interior’s or a State’s lists of threat-
ficial and adverse environmental im- ened and endangered species.
pacts as defined in 40 CFR 1508.8. (4) The environmental impact of the
(2) If EPA is proposing to issue a issuance of a new source NPDES per-
number of new source NPDES permits mit will have significant direct and ad-
during a limited time span and in the verse effect on a property listed in or
same general geographic area, the re- eligible for listing in the National Reg-
sponsible official shall examine the ister of Historic Places.
possibility of tiering EISs. If the per- (5) Any major part of the source will
mits are minor and environmentally have significant adverse effects on
insignificant when considered sepa- parklands, wetlands, wild and scenic
rately, the responsible official may de- rivers, reservoirs or other important
termine that the cumulative impact of bodies of water, navigation projects, or
the issuance of all these permits may agricultural lands.
have a significant environmental effect
and require an EIS for the area. Each § 6.606 Record of decision.
separate decision to issue an NPDES
(a) General. At the time of permit
permit shall then be based on the infor-
mation in this areawide EIS. Site spe- award, the responsible official shall
cific EISs may be required in certain prepare a record of decision in those
circumstances in addition to the cases where a final EIS was issued in
areawide EIS. accordance with 40 CFR 1505.2 and pur-
(b) Specific criteria. An EIS will be suant to the provisions of the permit
prepared when: regulations under 40 CFR 124.15 and
(1) The new source will induce or ac- 124.18(b)(5). The record of decision shall
celerate significant changes in indus- list any mitigation measures necessary
trial, commercial, agricultural, or resi- to make the recommended alternative
dential land use concentrations or dis- environmentally acceptable.
tributions which have the potential for (b) Mitigation measures. The mitiga-
significant environmental effects. Fac- tion measures derived from the EIS
99
§ 6.607 40 CFR Ch. I (7–1–00 Edition)
process shall be incorporated as condi- § 6.702 Applicability.

tions of the permit; ancillary agree- The requirements of this subpart
ments shall not be used to require apply to administrative actions under-
mitigation. taken to approve intramural and extra-
[44 FR 64177, Nov. 6, 1979, as amended at 47 mural projects under the purview of
FR 9831, Mar. 8, 1982] ORD.
§ 6.607 Monitoring. § 6.703 General.

In accordance with 40 CFR 1505.3 and (a) Environmental information. (1) For
pursuant to 40 CFR 122.66(c) and 122.10 intramural research projects, informa-
tion necessary to perform the environ-
the responsible official shall ensure
mental review shall be obtained by the
that there is adequate monitoring of
appropriate program official.
compliance with all NEPA related re- (2) For extramural research projects,
quirements contained in the permit. environmental information documents
[47 FR 9831, Mar. 8, 1982] shall be submitted to EPA by appli-
cants to facilitate the Agency’s envi-
ronmental review process. Guidance on
Subpart G—Environmental Review environmental information documents
Procedures for Office of Re- shall be included in all assistance ap-
search and Development plication kits and in contract proposal
Projects instructions. If there is a question con-
cerning the preparation of an environ-
SOURCE: 56 FR 20543, May 6, 1991, unless mental information document, the ap-
otherwise noted. plicant should consult with the project
officer or contract officer for guidance.
§ 6.700 Purpose. (b) Environmental review. The diagram
in figure 1 represents the various
(a) This subpart amplifies the re- stages of the environmental review
quirements described in subparts A process to be undertaken for ORD
through D by providing specific envi- projects.
ronmental review procedures for ac- (1) For intramural research projects,
tivities undertaken or funded by the an environmental review will be per-
Office of Research and Development formed for each laboratory’s projects
(ORD). at the start of the planning year. The
(b) The ORD Program provides sci- review will be conducted before
entific support for setting environ- projects are incorporated into the ORD
mental standards as well as the tech- program planning system. Projects
nology needed to prevent, monitor and added at a later date and, therefore,
control pollution. Intramural research not identified at the start of the plan-
is conducted at EPA laboratories and ning year, or any redirection of a
field stations throughout the United project that could have significant en-
States. Extramural research is imple- vironmental effects, also will be sub-
mented through grants, cooperative jected to an environmental review.
agreements, and contracts. The major- This review will be performed in ac-
ity of ORD’s research is conducted cordance with the process set forth in
within the confines of laboratories. this subpart and depicted in figure 1.
(2) For extramural research projects,
Outdoor research includes monitoring,
the environmental review shall be con-
sampling, and environmental stress
ducted before an initial or continuing
and ecological effects studies. award is made. The appropriate pro-
§ 6.701 Definition. gram official will perform the environ-
mental review in accordance with the
The term appropriate program official process set forth in this subpart and
means the official at each decision depicted in figure 1. EPA form 5300–23
level within ORD to whom the Assist- will be used to document categorical
ant Administrator has delegated re- exclusion determinations or, with ap-
sponsibility for carrying out the envi- propriate supporting analysis, as the
ronmental review process. environmental assessment (EA). The
100
completed form 5300–23 and any finding (4) Projects conducted completely
of no significant impact (FNSI) or en- within a contained facility, such as a
vironmental impact statement (EIS) laboratory or other enclosed building,
will be submitted with the proposal where methods are employed for appro-
package to the appropriate EPA assist- priate disposal of laboratory wastes
ance or contract office. and safeguards exist against hazardous,
(c) Agency coordination. In order to toxic, and radioactive materials enter-
avoid duplication of effort and ensure ing the environment. Laboratory direc-
consistency throughout the Agency, tors or other appropriate officials must
environmental reviews of ORD projects certify and provide documentation that
will be coordinated, as appropriate and the laboratory follows good laboratory
feasible, with reviews performed by practices and adheres to applicable
other program offices. Technical sup- Federal statutes, regulations and
port documents prepared for reviews in guidelines.
other EPA programs may be adopted
for use in ORD’s environmental reviews § 6.705 Environmental assessment and
and supplemented, as appropriate. finding of no significant impact.
(a) When a project does not meet any
§ 6.704 Categorical exclusions. of the criteria for categorical exclu-
(a) At the beginning of the environ- sion, the appropriate program official
mental review process (see Figure 1), shall undertake an environmental as-
the appropriate program official shall sessment in accordance with 40 CFR
determine whether an ORD project can 1508.9 in order to determine whether an
be categorically excluded from the sub- EIS is required or if a FNSI can be
stantive requirements of a NEPA re- made. ORD projects which normally re-
view. This determination shall be based sult in the preparation of an EA in-
on general criteria in § 6.107(d) and spe- clude the following:
cialized categories of ORD actions eli- (1) Initial field demonstration of a
gible for exclusion in § 6.704(b). If the new technology;
appropriate program official deter- (2) Field trials of a new product or
mines that an ORD project is con- new uses of an existing technology;
sistent with the general criteria and (3) Alteration of a local habitat by
any of the specialized categories of eli- physical or chemical means.
gible activities, and does not satisfy (b) If the environmental assessment
the criteria in § 6.107(e) for not granting reveals that the research is not antici-
a categorical exclusion, then this find- pated to have a significant impact on
ing shall be documented and no further the environment, the appropriate pro-
action shall be required. A categorical gram official shall prepare a FNSI in
exclusion shall be revoked by the ap- accordance with § 6.105(f). Pursuant to
propriate program official if it is deter- § 6.400(d), no administrative action will
mined that the project meets the cri- be taken on a project until the pre-
teria for revocation in § 6.107(c). scribed 30-day comment period for a
Projects that fail to qualify for cat- FNSI has elapsed and the Agency has
egorical exclusion or for which cat- fully considered all comments.
egorical exclusion has been revoked (c) On actions involving potentially
must undergo full environmental re- significant impacts on the environ-
view in accordance with § 6.705 and ment, a FNSI may be prepared if
§ 6.706. changes have been made in the pro-
(b) The following specialized cat- posed action to eliminate any signifi-
egories of ORD actions are eligible for cant impacts. These changes must be
categorical exclusion from a detailed documented in the proposal and in the
NEPA review: FNSI.
(1) Library or literature searches and (d) If the environmental assessment
studies; reveals that the research may have a
(2) Computer studies and activities; significant impact on the environment,
(3) Monitoring and sample collection an EIS must be prepared. The appro-
wherein no significant alteration of ex- priate program official may make a de-
isting ambient conditions occurs; termination that an EIS is necessary
101
§ 6.706 40 CFR Ch. I (7–1–00 Edition)
without preparing a formal environ- actions which normally require the

mental assessment. This determination preparation of an EIS. However, each
may be made by applying the criteria ORD project will be evaluated using
for preparation of an EIS in § 6.706. the EIS criteria as stated in § 6.706(a) to
determine whether an EIS must be pre-
§ 6.706 Environmental impact state- pared.
ment.
(c) Notice of intent. (1) If the environ-
(a) Criteria for preparation. In per- mental review reveals that a proposed
forming the environmental review, the action may have a significant effect on
appropriate program official shall as- the environment and this effect cannot
sure that an EIS is prepared when any be eliminated by redirection of the re-
of the conditions under § 6.108 (a) search or other means, the appropriate
through (g) exist or when: program official shall issue a notice of
(1) The proposed action may signifi- intent to prepare an EIS pursuant to
cantly affect the environment through § 6.400(b).
the release of radioactive, hazardous or
(2) As soon as possible after release of
toxic substances;
(2) The proposed action, through the the notice of intent, the appropriate
release of an organism or organisms, program official shall ensure that a
may involve environmental effects draft EIS is prepared in accordance
which are significant; with subpart B and that the public is
(3) The proposed action involves ef- involved in accordance with subpart D.
fects upon the environment which are (3) Draft and final EISs shall be sent
likely to be highly controversial; to the Assistant Administrator for
(4) The proposed action involves envi- ORD for approval.
ronmental effects which may accumu- (4) Pursuant to § 6.401(b), a decision
late over time or combine with effects on whether to undertake or fund a
of other actions to create impacts project must be made in conformance
which are significant; with the time frames indicated.
(5) The proposed action involves un- (d) Record of decision. Before the
certain environmental effects or highly project is undertaken or funded, the
unique environmental risks which may appropriate program official shall pre-
be significant. pare, in accordance with § 6.105 (g) and
(b) ORD actions which may require (h), a record of decision in any case
preparation of an EIS. There are no ORD where a final EIS has been issued.
102
103
§ 6.800 40 CFR Ch. I (7–1–00 Edition)
Subpart H—Environmental Review will include his recommendations on

Procedures for Solid Waste the need for an EIS.
Demonstration Projects (c) Notice of intent and EIS. Based on
the environmental review if the cri-
§ 6.800 Purpose. teria in § 6.802 of this part apply, the re-
sponsible official will assure that a no-
This subpart amplifies the procedures
tice of intent and a draft EIS are pre-
described in subparts A through D by
pared. The responsible official may re-
providing more specific environmental
review procedures for demonstration quest the appropriate Regional Admin-
projects undertaken by the Office of istrator to assist him in the prepara-
Solid Waste and Emergency Response. tion and distribution of the environ-
mental documents.
[44 FR 64177, Nov. 6, 1979, as amended at 51 (d) Finding of no significant impact. If
FR 32613, Sept. 12, 1986] the environmental review indicated no
significant environmental impacts, the
responsible official will assure that a
The requirements of this subpart FNSI is prepared which lists any miti-
apply to solid waste demonstration gation measures necessary to make the
projects for resource recovery systems recommended alternative environ-
and improved solid waste disposal fa- mentally acceptable.
cilities undertaken pursuant to section (e) Timing of action. Pursuant to
8006 of the Resource Conservation and § 6.401(b), in no case shall a contract or
Recovery Act of 1976. grant be awarded until the prescribed
§ 6.802 Criteria for preparing EISs. 30-day review period for a final EIS has
elapsed. Similarly, no action shall be
The responsible official shall assure taken until the 30-day comment period
that an EIS will be prepared when it is for a FNSI is completed.
determined that any of the conditions
in § 6.108 exist. § 6.804 Record of decision.
[44 FR 64177, Nov. 6, 1979, as amended at 50 The responsible official shall prepare
FR 26323, June 25, 1985] a record of decision in any case where
final EIS has been issued in accordance
§ 6.803 Environmental review process. with 40 CFR 1505.2. It shall be prepared
(a) Environmental information. (1) En- at the time of contract or grant award.
vironmental information documents The record of decision shall list any
shall be submitted to EPA by grant ap- mitigation measures necessary to
plicants or contractors. If there is a make the recommended alternative en-
question concerning the need for a doc- vironmentally acceptable.
ument, the potential contractor or
grantee should consult with the appro- Subpart I—Environmental Review
priate project officer for the grant or
contract.
Procedures for EPA Facility
(2) The environmental information Support Activities
document shall contain the same sec-
§ 6.900 Purpose.
tions specified for EIS’s in subpart B.
Guidance alerting potential grantees This subpart amplifies the general re-
and contractors of the environmental quirements described in subparts A
information documents shall be in- through D by providing environmental
cluded in all grant application kits, at- procedures for the preparation of EISs
tached to letters concerning the sub- on construction and renovation of spe-
mission of unsolicited proposals, and cial purpose facilities.
included with all requests for proposal.
(b) Environmental review. An environ- § 6.901 Definitions.
mental review will be conducted before (a) The term special purpose facility
a grant or contract award is made. means a building or space, including
This review will include the prepara- land incidental to its use, which is
tion of an environmental assessment wholly or predominantly utilized for
by the responsible official; the appro- the special purpose of an agency and
priate Regional Administrator’s input not generally suitable for other uses,
104
as determined by the General Services EPA if he is involved in the planning,

Administration. construction or modification of special
(b) The term program of requirements purpose facilities when his activities
means a comprehensive document have potential environmental effects
(booklet) describing program activities external to the facility. Such modifica-
to be accomplished in the new special tions include but are not limited to fa-
purpose facility or improvement. It in- cility additions, changes in central
cludes architectural, mechanical, heating systems or wastewater treat-
structural, and space requirements. ment systems, and land clearing for ac-
(c) The term scope of work means a cess roads and parking lots.
document similar in content to the (b) EIS preparation criteria. The re-
program of requirements but substan- sponsible official shall conduct an envi-
tially abbreviated. It is usually pre- ronmental review of all actions involv-
pared for small-scale projects. ing construction of special purpose fa-
cilities and improvements to these fa-
§ 6.902 Applicability. cilities. The responsible official shall
(a) Actions covered. These procedures assure that an EIS will be prepared
apply to all new special purpose facil- when it is determined that any of the
ity construction, activities related to conditions in § 6.108 of this part exist.
this construction (e.g., site acquisition [44 FR 64177, Nov. 6, 1979, as amended at 50
and clearing), and any improvements FR 26323, June 25, 1985]
or modifications to facilities having
potential environmental effects exter- § 6.904 Environmental review process.
nal to the facility, including new con- (a) Environmental review. (1) An envi-
struction and improvements under- ronmental review shall be conducted
taken and funded by the Facilities En- when the program of requirements or
gineering and Real Estate Branch, Fa- scope of work has been completed for
cilities and Support Services Division, the construction, improvements, or
Office of the Assistant Administrator modification of special purpose facili-
for Administration and Resource Man- ties. For special purpose facility con-
agement; or by a regional office . struction, the Chief, Facilities Engi-
(b) Actions excluded. This subpart neering and Real Estate Branch, shall
does not apply to those activities of request the assistance of the appro-
the Facilities Engineering and Real Es- priate program office and Regional Ad-
tate Branch, Facilities and Support ministrator in the review. For modi-
Services Division, for which the branch fications and improvement, the appro-
does not have full fiscal responsibility priate responsible official shall request
for the entire project. This includes assistance in making the review from
pilot plant construction, land acquisi- other cognizant EPA offices.
tion, site clearing and access road con- (2) Any environmental information
struction where the Facilities Engi- documents requested shall contain the
neering and Real Estate Branch’s ac- same sections listed for EISs in subpart
tivity is only supporting a project fi- B. Contractors and consultants shall be
nanced by a program office. Responsi- notified in contractual documents
bility for considering the environ- when an environmental information
mental impacts of such projects rests document must be prepared.
with the office managing and funding (b) Notice of intent, EIS, and FNSI. The
the entire project. Other subparts of responsible official shall decide at the
this regulation apply depending on the completion of the Environmental re-
nature of the project. view whether there may be any signifi-
[44 FR 64177, Nov. 6, 1979, as amended at 51 cant environmental impacts. If there
FR 32613, Sept. 12, 1986] could be significant environmental im-
pacts, a notice of intent and an EIS
§ 6.903 Criteria for preparing EISs. shall be prepared according to the pro-
(a) Preliminary information. The re- cedures under subparts A, B, C and D.
sponsible official shall request an envi- If there are not any significant envi-
ronmental information document from ronmental impacts, a FNSI shall be
a construction contractor or con- prepared according to the procedures in
sulting architect/engineer employed by subparts A and D. The FNSI shall list
105
§ 6.905 40 CFR Ch. I (7–1–00 Edition)
any mitigation measures necessary to forth below reflect EPA’s duties and re-
make the recommended alternative en- sponsibilities as required under the Ex-
vironmentally acceptable. ecutive Order and satisfy the require-
(c) Timing of action. Pursuant to ment for issuance of procedures under
§ 6.401(b), in no case shall a contract be section 2–1 of the Executive Order.
awarded or construction activities (b) Policy. It shall be the policy of
begun until the prescribed 30-day wait this Agency to carry out the purpose
period for a final EIS has elapsed. and requirements of the Executive
Similarly, under § 6.400(d), no action Order to the fullest extent possible.
shall be taken until the 30-day com- EPA, within the realm of its expertise,
ment period for FNSIs is completed. shall work with the Department of
State and the Council on Environ-
§ 6.905 Record of decision. mental Quality to provide information
At the time of contract award, the to other Federal agencies and foreign
responsible official shall prepare a nations to heighten awareness of and
record of decision in those cases where interest in the environment. EPA shall
a final EIS has been issued in accord- further cooperate to the extent pos-
ance with 40 CFR 1505.2. The record of sible with Federal agencies to lend spe-
decision shall list any mitigation cial expertise and assistance in the
measures necessary to make the rec- preparation of required environmental
ommended alternative environ- documents under the Executive Order.
mentally acceptable. EPA shall perform environmental re-
views of activities significantly affect-
Subpart J—Assessing the Environ- ing the global commons and foreign na-
mental Effects Abroad of EPA tions as required under Executive
Actions Order 12114 and as set forth under these
procedures.
AUTHORITY: Executive Order 12114, 42
U.S.C. 4321, note.
SOURCE: 46 FR 3364, Jan. 14, 1981, unless (a) Administrative actions requiring
otherwise noted. environmental review. The environ-
mental review requirements apply to
§ 6.1001 Purpose and policy. the activities of EPA as set forth
(a) Purpose. On January 4, 1979, the below:
President signed Executive Order 12114 (1) Major research or demonstration
entitled ‘‘Environmental Effects projects which affect the global com-
Abroad of Major Federal Actions.’’ The mons or a foreign nation.
purpose of this Executive Order is to (2) Ocean dumping activities carried
enable responsible Federal officials in out under section 102 of the MPRSA
carrying out or approving major Fed- which affect the related environment.
eral actions which affect foreign na- (3) Major permitting or licensing by
tions or the global commons to be in- EPA of facilities which affect the glob-
formed of pertinent environmental al commons or the environment of a
considerations and to consider fully foreign nation. This may include such
the environmental impacts of the ac- actions as the issuance by EPA of haz-
tions undertaken. While based on inde- ardous waste treatment, storage, or
pendent authority, this Order furthers disposal facility permits pursuant to
the purpose of the National Environ- section 3005 of the Resource Conserva-
mental Policy Act (NEPA) (42 U.S.C. tion and Recovery Act (42 U.S.C. 6925),
4321 et seq.) and the Marine Protection NPDES permits pursuant to section 402
Research and Sanctuaries Act of the Clean Water Act (33 U.S.C. 1342),
(MPRSA) (33 U.S.C. 1401 et seq.). It and prevention of significant deteriora-
should be noted, however, that in ful- tion approvals pursuant to Part C of
filling its responsibilities under Execu- the Clean Air Act (42 U.S.C. 7470 et
tive Order 12114, EPA shall be guided seq.).
by CEQ regulations only to the extent (4) Wastewater Treatment Construc-
that they are made expressly application Grants Program under section 201
ble by this subpart. The procedures set of the Clean Water Act when activities
106
addressed in the facility plan would preparation of appropriate environ-

have environmental effects abroad. mental documents relating to ocean
(5) Other EPA activities as deter- dumping activities in the global com-
mined by OER and OIA (see § 6.1007(c)). mons under section 102 of the MPRSA.
For ocean dumping site designations
§ 6.1003 Definitions. prescribed pursuant to section 102(c) of
As used in this subpart, environment the MPRSA and 40 CFR part 228, EPA
means the natural and physical envi- shall prepare an environmental impact
ronment and excludes social, economic statement consistent with the require-
and other environments; global comments of EPA’s Procedures for the Vol-
mons is that area (land, air, water) out- untary Preparation of Environmental
side the jurisdiction of any nation; and Impact Statements dated October 21,
responsible official is either the EPA As- 1974 (see 39 FR 37419). Also EPA shall
sistant Administrator or Regional Ad- prepare an environmental impact
ministrator as appropriate for the par- statement for the establishment or re-
ticular EPA program. Also, an action vision of criteria under section 102(a) of
significantly affects the environment if MPRSA.
it does significant harm to the environ- (2) For individual permits issued by
ment even though on balance the ac- EPA under section 102(b) an environ-
tion may be beneficial to the environmental assessment shall be made by
ment. To the extent applicable, the re-
EPA. Pursuant to 40 CFR part 221, the
sponsible official shall address the con-
permit applicant shall submit with the
siderations set forth in the CEQ Regu-
application an environmental analysis
lations under 40 CFR 1508.27 in deter-
which includes a discussion of the need
mining significant effect.
for the action, an outline of alter-
§ 6.1004 Environmental review and as- natives, and an analysis of the environ-
sessment requirements. mental impact of the proposed action
(a) Research and demonstration and alternatives consistent with the
projects. The appropriate Assistant Ad- EPA criteria established under section
ministrator is responsible for per- 102(a) of MPRSA. The information sub-
forming the necessary degree of envi- mitted under 40 CFR part 221 shall be
ronmental review on research and dem- sufficient to satisfy the environmental
onstration projects undertaken by assessment requirement.
EPA. If the research or demonstration (c) EPA permitting and licensing activi-
project affects the environment of the ties. The appropriate Regional Adminis-
global commons, the applicant shall trator is responsible for conducting
prepare an environmental analysis. concise environmental reviews with re-
This will assist the responsible official gard to permits issued under section
in determining whether an EIS is nec- 3005 of the Resource Conservation and
essary. If it is determined that the ac- Recovery Act (RCRA permits), section
tion significantly affects the environ- 402 of the Clean Water Act (NPDES
ment of the global commons, then an permits), and section 165 of the Clean
EIS shall be prepared. If the under- Air Act (PSD permits), for such actions
taking significantly affects a foreign undertaken by EPA which affect the
nation EPA shall prepare a unilateral, global commons or foreign nations.
bilateral or multilateral environ- The information submitted by appli-
mental study. EPA shall afford the af- cants for such permits or approvals
fected foreign nation or international under the applicable consolidated per-
body or organization an opportunity to mit regulations (40 CFR parts 122 and
participate in this study. This environ- 124) and Prevention of Significant De-
mental study shall discuss the need for terioration (PSD) regulations (40 CFR
the action, analyze the environmental part 52) shall satisfy the environmental
impact of the various alternatives con- document requirement under section 2–
sidered and list the agencies and other 4(b) of Executive Order 12114. Compli-
parties consulted. ance with applicable requirements in
(b) Ocean dumping activities. (1) The part 124 of the consolidated permit reg-
Assistant Administrator for Water and ulations (40 CFR part 124) shall be suf-
Waste Management shall ensure the ficient to satisfy the requirements to
107
§ 6.1005 40 CFR Ch. I (7–1–00 Edition)
conduct a concise environmental re- couraged to provide appropriate re-

view for permits subject to this para- sources to the agency preparing envi-
graph. ronmental documents in order to avoid
(d) Wastewater treatment facility plan- duplication of resources. In working
ning. 40 CFR 6.506 details the environ- with a lead agency, EPA shall to the
mental review process for the facilities fullest extent possible serve as a co-
planning process under the wastewater operating agency in accordance with 40
treatment works construction grants CFR 1501.6. When other program com-
program. For the purpose of these reg- mitments preclude the degree of in-
ulations, the facility plan shall also involvement requested by the lead agen-
clude a concise environmental review
cy, the responsible EPA official shall
of those activities that would have en-
so inform the lead agency in writing.
vironmental effects abroad. This shall
apply only to the Step 1 grants award- § 6.1006 Exemptions and consider-
ed after January 14, 1981, but on or be- ations.
fore December 29, 1981, and facilities
plans developed after December 29, Under section 2–5 (b) and (c) of the
1981. Where water quality impacts iden- Executive Order, Federal agencies may
tified in a facility plan are the subject provide for modifications in the con-
or water quality agreements with Can- tents, timing and availability of docu-
ada or Mexico, nothing in these regula- ments or exemptions from certain re-
tions shall impose on the facility plan- quirements for the environmental re-
ning process coordination and con- view and assessment. The responsible
sultation requirements in addition to official, in consultation with the Direc-
those required by such agreements. tor, Office of Environmental Review
(e) Review by other Federal agencies (OER), and the Director, Office of
and other appropriate officials. The re- International Activities (OIA), may ap-
sponsible officials shall consult with prove modifications for situations de-
other Federal agencies with relevant scribed in section 2–5(b). The respon-
expertise during the preparation of the sible official, in consultation with the
environmental document. As soon as Director, OER and Director OIA, shall
feasible after preparation of the envi- obtain exemptions from the Adminis-
ronmental document, the responsible
trator for situations described in sec-
official shall make the document avail-
tion 2–5(c). The Department of State
able to the Council on Environmental
and the Council on Environmental
Quality, Department of State, and
Quality shall be consulted as soon as
other appropriate officials. The respon-
possible on the utilization of such ex-
sible official with assistance from OIA
shall work with the Department of emptions.
State to establish procedures for com- § 6.1007 Implementation.
municating with and making docu-
ments available to foreign nations and (a) Oversight. OER is responsible for
international organizations. overseeing the implementation of these
procedures and shall consult with OIA
[46 FR 3364, Jan. 14, 1981, as amended at 50
FR 26323, June 25, 1985]
wherever appropriate. OIA shall be uti-
lized for making formal contacts with
§ 6.1005 Lead or cooperating agency. the Department of State. OER shall as-
(a) Lead Agency. Section 3–3 of Execu- sist the responsible officials in car-
tive Order 12114 requires the creation of rying out their responsibilities under
a lead agency whenever an action in- these procedures.
volves more than one Federal agency. (b) Information exchange. OER with
In implementing section 3–3, EPA the aid of OIA, shall assist the Depart-
shall, to the fullest extent possible, fol- ment of State and the Council on Envi-
low the guidance for the selection of a ronmental Quality in developing the
lead agency contained in 40 CFR 1501.5 informational exchange on environ-
of the CEQ regulations. mental review activities with foreign
(b) Cooperating Agency. Under section nations.
2–4(d) of the Executive Order, Federal (c) Unidentified activities. The respon-
agencies with special expertise are en- sible official shall consult with OER
108
Environmental Protection Agency Pt. 6, App. A
and OIA to establish the type of envi- Section 2 Purpose

ronmental review or document appro- a. The purpose of this Statement of Proce-
priate for any new EPA activities or dures is to set forth Agency policy and guid-
requirements imposed upon EPA by ance for carrying out the provisions of Exec-
statute, international agreement or utive Orders 11988 and 11990.
other agreements. b. EPA program offices shall amend exist-
ing regulations and procedures to incor-
APPENDIX A TO PART 6—STATEMENT OF porate the policies and procedures set forth
PROCEDURES ON FLOODPLAIN MAN- in this Statement of Procedures.
AGEMENT AND WETLANDS PROTEC- c. To the extent possible, EPA shall accom-
TION modate the requirements of Executive Or-
ders 11988 and 11990 through the Agency
Contents: NEPA procedures contained in 40 CFR part 6.
Section 1 General
Section 3 Policy
Section 2 Purpose
Section 3 Policy a. The Agency shall avoid wherever pos-
Section 4 Definitions sible the long and short term impacts associ-
Section 5 Applicability ated with the destruction of wetlands and
Section 6 Requirements the occupancy and modification of
Section 7 Implementation floodplains and wetlands, and avoid direct
and indirect support of floodplain and wet-
Section 1 General
lands development wherever there is a prac-
a. Executive Order 11988 entitled ‘‘Flood- ticable alternative.
plain Management’’ dated May 24, 1977, re- b. The Agency shall incorporate floodplain
quires Federal agencies to evaluate the po- management goals and wetlands protection
tential effects of actions it may take in a considerations into its planning, regulatory,
floodplain to avoid adversely impacting and decisionmaking processes. It shall also
floodplains wherever possible, to ensure that promote the preservation and restoration of
its planning programs and budget requests floodplains so that their natural and bene-
reflect consideration of flood hazards and ficial values can be realized. To the extent
floodplain management, including the res- possible EPA shall:
toration and preservation of such land areas (1) Reduce the hazard and risk of flood loss
as natural undeveloped floodplains, and to and wherever it is possible to avoid direct or
prescribe procedures to implement the poli- indirect adverse impact on floodplains;
cies and procedures of this Executive Order.
(2) Where there is no practical alternative
Guidance for implementation of the Execu-
to locating in a floodplain, minimize the im-
tive Order has been provided by the U.S.
pact of floods on human safety, health, and
Water Resources Council in its Floodplain
welfare, as well as the natural environment;
Management Guidelines dated February 10,
1978 (see 40 FR 6030). (3) Restore and preserve natural and bene-
b. Executive Order 11990 entitled ‘‘Protec- ficial values served by floodplains;
tion of Wetlands’’, dated May 24, 1977, re- (4) Require the construction of EPA struc-
quires Federal agencies to take action to tures and facilities to be in accordance with
avoid adversely impacting wetlands wher- the standards and criteria, of the regulations
ever possible, to minimize wetlands destruc- promulgated pursuant to the National Flood
tion and to preserve the values of wetlands, Insurance Program;
and to prescribe procedures to implement (5) Identify floodplains which require res-
the policies and procedures of this Executive toration and preservation and recommend
Order. management programs necessary to protect
c. It is the intent of these Executive Orders these floodplains and to include such consid-
that, wherever possible, Federal agencies im- erations as part of on-going planning pro-
plement the floodplains/wetlands require- grams; and
ments through existing procedures, such as (6) Provide the public with early and con-
those internal procedures established to im- tinuing information concerning floodplain
plement the National Environmental Policy management and with opportunities for par-
Act (NEPA) and OMB A–95 review proce- ticipating in decision making including the
dures. In those instances where the environ- (evaluation of) tradeoffs among competing
mental impacts of a proposed action are not alternatives.
significant enough to require an environ- c. The Agency shall incorporate wetlands
mental impact statement (EIS) pursuant to protection considerations into its planning,
section 102(2)(C) of NEPA, or where programs regulatory, and decisionmaking processes. It
are not subject to the requirements of shall minimize the destruction, loss, or deg-
NEPA, alternative but equivalent floodplain/ radation of wetlands and preserve and en-
wetlands evaluation and notice procedures hance the natural and beneficial values of
must be established. wetlands. Agency activities shall continue to
109
Pt. 6, App. A 40 CFR Ch. I (7–1–00 Edition)
be carried out consistent with the Adminis- Section 5 Applicability
trator’s Decision Statement No. 4 dated Feb-
a. The Executive Orders apply to activities
ruary 21, 1973 entitled ‘‘EPA Policy to Pro-
of Federal agencies pertaining to (1) acquir-
tect the Nation’s Wetlands.’’
ing, managing, and disposing of Federal
Section 4 Definitions lands and facilities, (2) providing Federally
undertaken, financed, or assisted construc-
a. Base Flood means that flood which has a tion and improvements, and (3) conducting
one percent chance of occurrence in any Federal activities and programs affecting
given year (also known as a 100-year flood). land use, including but not limited to water
This term is used in the National Flood In- and related land resources planning, regu-
surance Program (NFIP) to indicate the min- lating, and licensing activities.
imum level of flooding to be used by a com- b. These procedures shall apply to EPA’s
munity in its floodplain management regula- programs as follows: (1) All Agency actions
tions. involving construction of facilities or man-
b. Base Floodplain means the land area cov- agement of lands or property. This will re-
ered by a 100-year flood (one percent chance quire amendment of the EPA Facilities Man-
floodplain). Also see definition of floodplain. agement Manual (October 1973 and revisions
c. Flood or Flooding means a general and thereafter).
temporary condition of partial or complete (2) All Agency actions where the NEPA
inundation of normally dry land areas from process applies. This would include the pro-
the overflow of inland and/or tidal waters, grams under sections 306/402 of the Clean
and/or the unusual and rapid accumulation Water Act pertaining to new source permit-
or runoff of surface waters from any source, ting and section 201 of the Clean Water Act
or flooding from any other source. pertaining to wastewater treatment con-
d. Floodplain means the lowland and rel- struction grants.
atively flat areas adjoining inland and coast- (3) All agency actions where there is suffi-
al waters and other floodprone areas such as cient independent statutory authority to
offshore islands, including at a minimum, carry out the floodplain/wetlands procedures.
that area subject to a one percent or greater (4) In program areas where there is no EIS
chance of flooding in any given year. The requirement nor clear statutory authority
base floodplain shall be used to designate the for EPA to require procedural implementa-
100-year floodplain (one percent chance tion, EPA shall continue to provide leader-
floodplain). The critical action floodplain is ship and offer guidance so that the value of
defined as the 500-year floodplain (0.2 percent floodplain management and wetlands protec-
chance floodplain). tion can be understood and carried out to the
e. Floodproofing means modification of in- maximum extent practicable in these pro-
dividual structures and facilities, their sites, grams.
and their contents to protect against struc- c. These procedures shall not apply to any
tural failure, to keep water out or to reduce permitting or source review programs of
effects of water entry. EPA once such authority has been trans-
f. Minimize means to reduce to the smallest ferred or delegated to a State. However, EPA
possible amount or degree. shall, to the extent possible, require States
g. Practicable means capable of being done to provide equivalent effort to assure sup-
within existing constraints. The test of what port for the objectives of these procedures as
is practicable depends upon the situation and part of the State assumption process.
includes consideration of the pertinent fac-
tors such as environment, community wel- Section 6 Requirements
fare, cost, or technology. a. Floodplain/Wetlands review of proposed
h. Preserve means to prevent modification Agency actions.
to the natural floodplain environment or to (1) Floodplain/Wetlands Determination— Be-
maintain it as closely as possible to its nat- fore undertaking an Agency action, each pro-
ural state. gram office must determine whether or not
i. Restore means to re-establish a setting or the action will be located in or affect a flood-
environment in which the natural functions plain or wetlands. The Agency shall utilize
of the floodplain can again operate. maps prepared by the Federal Insurance Ad-
j. Wetlands means those areas that are in- ministration of the Federal Emergency Man-
undated by surface or ground water with a agement Agency (Flood Insurance Rate Maps
frequency sufficient to support and under or Flood Hazard Boundary Maps), Fish and
normal circumstances does or would support Wildlife Service (National Wetlands Inven-
a prevalence of vegetative or aquatic life tory Maps), and other appropriate agencies
that requires saturated or seasonally satu- to determine whether a proposed action is lo-
rated soil conditions for growth and repro- cated in or will likely affect a floodplain or
duction. Wetlands generally include swamps, wetlands. If there is no floodplain/wetlands
marshes, bogs, and similar areas such as impact identified, the action may proceed
sloughs, potholes, wet meadows, river over- without further consideration of the remain-
flows, mud flats, and natural ponds. ing procedures set forth below.
110
(2) Early Public Notice—When it is apparent apply, the Statement of Findings may be in-
that a proposed or potential agency action is corporated in the final EIS or in the environ-
likely to impact a floodplain or wetlands, mental assessment. In other cases, notice
the public should be informed through appro- should be placed in the FEDERAL REGISTER or
priate public notice procedures. other local medium and copies sent to Fed-
(3) Floodplain/Wetlands Assessment—If the eral, State, and local agencies and other en-
Agency determines a proposed action is lo- tities which submitted comments or are oth-
cated in or affects a floodplain or wetlands, erwise concerned with the floodplain/wet-
a floodplain/wetlands assessment shall be un- lands assessment. For floodplain actions sub-
dertaken. For those actions where an envi- ject to Office of Management and Budget
ronmental assessment (EA) or environ- (OMB) Circular A–95, the Agency shall send
mental impact statement (EIS) is prepared the Statement of Findings to State and
pursuant to 40 CFR part 6, the floodplain/ areawide A–95 clearinghouse in the geo-
wetlands assessment shall be prepared con- graphic area affected. At least 15 working
currently with these analyses and shall be days shall be allowed for public and inter-
included in the EA or EIS. In all other cases, agency review of the Statement of Findings.
a floodplain/wetlands assessment shall be pre- (7) Authorizations/Appropriations—Any re-
pared. Assessments shall consist of a descrip- quests for new authorizations or appropria-
tion of the proposed action, a discussion of tions transmitted to OMB shall include, a
its effect on the floodplain/wetlands, and floodplain/wetlands assessment and, for
shall also describe the alternatives consid- floodplain impacting actions, a Statement of
ered. Findings, if a proposed action will be located
(4) Public Review of Assessments—For pro- in a floodplain or wetlands.
posed actions impacting floodplain/wetlands
b. Lead agency concept. To the maximum
where an EA or EIS is prepared, the oppor-
extent possible, the Agency shall relay on
tunity for public review will be provided
the lead agency concept to carry out the pro-
through the EIS provisions contained in 40
visions set forth in section 6.a of this appen-
CFR parts 6, 25, or 35, where appropriate. In
dix. Therefore, when EPA and another Fed-
other cases, an equivalent public notice of
eral agency have related actions, EPA shall
the floodplain/wetlands assessment shall be
work with the other agency to identify
made consistent with the public involvement
which agency shall take the lead in satis-
requirements of the applicable program.
(5) Minimize, Restore or Preserve—If there is fying these procedural requirements and
no practicable alternative to locating in or thereby avoid duplication of efforts.
affecting the floodplain or wetlands, the c. Additional floodplain management provi-
Agency shall act to minimize potential harm sions relating to Federal property and facilities.
to the floodplain or wetlands. The Agency (1) Construction Activities—EPA controlled
shall also act to restore and preserve the structures and facilities must be constructed
natural and beneficial values of floodplains in accordance with existing criteria and
and wetlands as part of the analysis of all al- standards set forth under the NFIP and must
ternatives under consideration. include mitigation of adverse impacts wher-
(6) Agency Decision—After consideration of ever feasible. Deviation from these require-
alternative actions, as they have been modi- ments may occur only to the extent NFIP
fied in the preceding analysis, the Agency standards are demonstrated as inappropriate
shall select the desired alternative. For all for a given structure or facility.
Agency actions proposed to be in or affecting (2) Flood Protection Measures—If newly con-
a floodplain/wetlands, the Agency shall pro- structed structures or facilities are to be lo-
vide further public notice announcing this cated in a floodplain, accepted floodproofing
decision. This decision shall be accompanied and other flood protection measures shall be
by a Statement of Findings, not to exceed undertaken. To achieve flood protection,
three pages. This Statement shall include: (i) EPA shall, wherever practicable, elevate
The reasons why the proposed action must structures above the base flood level rather
be located in or affect the floodplain or wet- than filling land.
lands; (ii) a description of significant facts (3) Restoration and Preservation—As part of
considered in making the decision to locate any EPA plan or action, the potential for re-
in or affect the floodplain or wetlands in- storing and preserving floodplains and wet-
cluding alternative sites and actions; (iii) a lands so that their natural and beneficial
statement indicating whether the proposed values can be realized must be considered
action conforms to applicable State or local and incorporated into the plan or action
floodplain protection standards; (iv) a de- wherever feasible.
scription of the steps taken to design or (4) Property Used by Public—If property
modify the proposed action to minimize po- used by the public has suffered damage or is
tential harm to or within the floodplain or located in an identified flood hazard area,
wetlands; and (v) a statement indicating how EPA shall provide on structures, and other
the proposed action affects the natural or places where appropriate, conspicuous indi-
beneficial values of the floodplain or wet- cators of past and probable flood height to
lands. If the provisions of 40 CFR part 6 enhance public knowledge of flood hazards.
111
Pt. 7 40 CFR Ch. I (7–1–00 Edition)
(5) Transfer of EPA Property—When prop- 7.75 Transition plan.
erty in flood plains is proposed for lease,
easement, right-of-way, or disposal to non- Subpart D—Requirements for Applicants
Federal public or private parties, EPA shall and Recipients
reference in the conveyance those uses that
are restricted under Federal, State and local 7.80 Applicants.
floodplain regulations and attach other re- 7.85 Recipients.
strictions to uses of the property as may be 7.90 Grievance procedures.
deemed appropriate. Notwithstanding, EPA 7.95 Notice of nondiscrimination.
shall consider withholding such properties 7.100 Intimidation and retaliation prohib-
from conveyance. ited.
Section 7 Implementation Subpart E—Agency Compliance
a. Pursuant to section 2, the EPA program Procedures
offices shall amend existing regulations, pro-
cedures, and guidance, as appropriate, to in- 7.105 General policy.
corporate the policies and procedures set 7.110 Preaward compliance.
forth in this Statement of Procedures. Such 7.115 Postaward compliance.
amendments shall be made within six 7.120 Complaint investigations.
months of the date of these Procedures. 7.125 Coordination with other agencies.
b. The Office of External Affairs (OEA) is 7.130 Actions available to EPA to obtain
responsible for the oversight of the imple- compliance.
mentation of this Statement of Procedures 7.135 Procedure for regaining eligibility.
and shall be given advanced opportunity to APPENDIX A TO PART 7—EPA ASSISTANCE
review amendments to regulations, proce- PROGRAMS AS LISTED IN THE ‘‘CATALOG OF
dures, and guidance. OEA shall coordinate FEDERAL DOMESTIC ASSISTANCE’’
efforts with the program offices to develop
AUTHORITY: 42 U.S.C. 2000d to 2000d–4; 29
necessary manuals and more specialized sup-
U.S.C. 794; 33 U.S.C. 1251 nt.
plementary guidance to carry out this State-
ment of Procedures. SOURCE: 49 FR 1659, Jan. 12, 1984, unless
[44 FR 64177, Nov. 6, 1976, as amended at 50 otherwise noted.
FR 26323, June 25, 1985]
Subpart A—General
PART 7—NONDISCRIMINATION IN § 7.10 Purpose of this part.
PROGRAMS RECEIVING FEDERAL
ASSISTANCE FROM THE ENVI- This part implements: Title VI of the
Civil Rights Act of 1964, as amended;
RONMENTAL PROTECTION section 504 of the Rehabilitation Act of
AGENCY 1973, as amended; and section 13 of the
Federal Water Pollution Control Act
Subpart A—General Amendments of 1972, Public Law 92–500,
Sec. (collectively, the Acts).
7.10 Purpose of this part.
7.15 Applicability. § 7.15 Applicability.
7.20 Responsible agency officers.
This part applies to all applicants
7.25 Definitions.
for, and recipients of, EPA assistance
Subpart B—Discrimination Prohibited on in the operation of programs or activi-
the Basis of Race, Color, National Ori- ties receiving such assistance begin-
gin or Sex ning February 13, 1984. New construc-
tion (§ 7.70) for which design was initi-
7.30 General prohibition. ated prior to February 13, 1984, shall
7.35 Specific prohibitions.
comply with the accessibility require-
Subpart C—Discrimination Prohibited on ments in the Department of Health,
the Basis of Handicap Education and Welfare (now the De-
partment of Health and Human Serv-
7.45 General prohibition. ices) nondiscrimination regulation, 45
7.50 Specific prohibitions against discrimi- CFR 84.23, issued June 3, 1977, or with
nation. equivalent standards that ensure the
7.55 Separate or different programs.
7.60 Prohibitions and requirements relating facility is readily accessible to and us-
to employment. able by handicapped persons. Such as-
7.65 Accessibility. sistance includes but is not limited to
7.70 New construction. that which is listed in the Catalogue of
112
Federal Domestic Assistance under the methaqualone). Examples of (a)(2) include

66.000 series. It supersedes the provi- opium, coca leaves, methadone, amphet-
sions of former 40 CFR parts 7 and 12. amines and barbiturates.
(b) The misuse of any drug or sub-
§ 7.20 Responsible agency officers. stance listed by the Department of Jus-
tice in 21 CFR 1308.12–1308.15 under au-
(a) The EPA Office of Civil Rights
(OCR) is responsible for developing and thority of the Controlled Substances
Act as a controlled substance available
administering EPA’s compliance pro-
for prescription.
grams under the Acts.
EPA means the United States Envi-
(b) EPA’s Project Officers will, to the
extent possible, be available to explain ronmental Protection Agency.
EPA assistance means any grant or
to each recipient its obligations under
cooperative agreement, loan, contract
this part and to provide recipients with
(other than a procurement contract or
technical assistance or guidance upon
a contract of insurance or guaranty),
request.
or any other arrangement by which
§ 7.25 Definitions. EPA provides or otherwise makes
available assistance in the form of:
As used in this part: (1) Funds;
Administrator means the Adminis- (2) Services of personnel; or
trator of EPA. It includes any other (3) Real or personal property or any
agency official authorized to act on his interest in or use of such property, in-
or her behalf, unless explicity stated cluding:
otherwise. (i) Transfers or leases of such prop-
Alcohol abuse means any misuse of al- erty for less than fair market value or
cohol which demonstrably interferes for reduced consideration; and
with a person’s health, interpersonal (ii) Proceeds from a subsequent
relations or working ability. transfer or lease of such property if
Applicant means any entity that files EPA’s share of its fair market value is
an application or unsolicited proposal not returned to EPA.
or otherwise requests EPA assistance Facility means all, or any part of, or
(see definition for EPA assistance). any interests in structures, equipment,
Assistant Attorney General is the head roads, walks, parking lots, or other
of the Civil Rights Division, U.S. De- real or personal property.
partment of Justice. Handicapped person:
Award Official means the EPA official (a) Handicapped person means any
with the authority to approve and exe- person who (1) has a physical or mental
cute assistance agreements and to take impairment which substantially limits
other assistance related actions au- one or more major life activities, (2)
thorized by this part and by other EPA has a record of such an impairment, or
regulations or delegation of authority. (3) is regarded as having such an im-
Drug abuse means: pairment. For purposes of employment,
(a) The use of any drug or substance the term handicapped person does not
listed by the Department of Justice in include any person who is an alcoholic
21 CFR 1308.11, under authority of the or drug abuser whose current use of al-
Controlled Substances Act, 21 U.S.C. cohol or drugs prevents such individual
801, as a controlled substance unavail- from performing the duties of the job
able for prescription because: in question or whose employment, by
(1) The drug or substance has a high
reason of such current drug or alcohol
potential for abuse,
abuse, would constitute a direct threat
(2) The drug or other substance has
to property or the safety of others.
no currently accepted medical use in
(b) As used in this paragraph, the
treatment in the United States, or
phrase:
(3) There is a lack of accepted safety
(1) Physical or mental impairment
for use of the drug or other substance
means (i) any physiological disorder or
under medical supervision.
condition, cosmetic disfigurement, or
NOTE: Examples of drugs under paragraph
(a)(1) of this section include certain opiates anatomical loss affecting one or more
and opiate derivatives (e.g., heroin) and hal- of the following body systems: Neuro-
lucinogenic substances (e.g., marijuana, logical; musculoskeletal; special sense
mescaline, peyote) and depressants (e.g., organs; respiratory, including speech
113
§ 7.25 40 CFR Ch. I (7–1–00 Edition)
organs; cardiovascular; reproductive; (a) American Indian or Alaskan native.

digestive; genito-urinary; hemic and A person having origins in any of the
lymphatic; skin; and endocrine; and (ii) original peoples of North America, and
any mental or psychological disorder, who maintains cultural identification
such as mental retardation, organic through tribal affiliation or commu-
brain syndrome, emotional or mental nity recognition.
illness, and specific learning disabil- (b) Asian or Pacific Islander. A person
ities. having origins in any of the original
(2) Major life activities means func- peoples of the Far East, Southeast
tions such as caring for one’s self, per-
Asia, the Indian subcontinent, or the
forming manual tasks, walking, seeing,
Pacific Islands. This area includes, for
hearing, speaking, breathing, learning,
and working. example, China, Japan, Korea, the
(3) Has a record of such an impairment Philippine Islands, and Samoa.
means has a history of, or has been (c) Black and not of Hispanic origin. A
misclassified as having, a mental or person having origins in any of the
physical impairment that substantially black racial groups of Africa.
limits one or more major life activi- (d) Hispanic. A person of Mexican,
ties. Puerto Rican, Cuban, Central or South
(4) Is regarded as having an impairment American or other Spanish culture or
means: origin, regardless or race.
(i) Has a physical or mental impair- (e) White, not of Hispanic origin. A per-
ment that does not substantially limit son having origins in any of the origi-
major life activities but that is treated nal peoples of Europe, North Africa, or
by a recipient as constituting such a the Middle East.
limitation; Recipient means, for the purposes of
(ii) Has a physical or mental impair- this regulation, any State or its polit-
ment that substantially limits major ical subdivision, any instrumentality
life activities only as a result of the at-
of a State or its political subdivision,
titudes of others toward such impair-
any public or private agency, institu-
ment; or
(iii) Has none of the impairments de- tion, organization, or other entity, or
fined above but is treated by a recipi- any person to which Federal financial
ent as having such an impairment. assistance is extended directly or
Office of Civil Rights or OCR means through another recipient, including
the Director of the Office of Civil any successor, assignee, or transferee
Rights, EPA Headquarters or his/her of a recipient, but excluding the ulti-
designated representative. mate beneficiary of the assistance.
Project Officer means the EPA official Section 13 refers to section 13 of the
designated in the assistance agreement Federal Water Pollution Control Act
(as defined in EPA assistance) as EPA’s Amendments of 1972.
program contact with the recipient; United States includes the States of
Project Officers are responsible for the United States, the District of Co-
monitoring the project. lumbia, the Commonwealth of Puerto
Qualified handicapped person means: Rico, the Virgin Islands, American
(a) With respect to employment: A Samoa, Guam, Wake Island, the Canal
handicapped person who, with reason- Zone, and all other territories and pos-
able accommodation, can perform the sessions of the United States; the term
essential functions of the job in ques- State includes any one of the foregoing.
tion.
(b) With respect to services: A handi-
capped person who meets the essential (a) through (e) are in conformity with Direc-
tive 15 of the Office of Federal Statistical
eligibility requirements for the receipt
Policy and Standards, whose function is now
of such services. in the Office of Information and Regulatory
Racial classifications: 1 Affairs, Office of Management and Budget.
Should that office, or any successor office,
1 Additional subcategories based on na- change or otherwise amend the categories
tional origin or primary language spoken listed in Directive 15, the categories in this
may be used where appropriate on either a paragraph shall be interpreted to conform
national or a regional basis. Subparagraphs with any such changes or amendments.
114
Subpart B—Discrimination Prohib- race, color, sex, or national origin, the

ited on the Basis of Race, recipient shall take affirmative action
to provide remedies to those who have
Color, National Origin or Sex been injured by the discrimination.
§ 7.30 General prohibition. (b) A recipient shall not use criteria
or methods of administering its pro-
No person shall be excluded from par- gram which have the effect of sub-
ticipation in, be denied the benefits of, jecting individuals to discrimination
or be subjected to discrimination under because of their race, color, national
any program or activity receiving EPA origin, or sex, or have the effect of de-
assistance on the basis of race, color, feating or substantially impairing ac-
national origin, or on the basis of sex complishment of the objectives of the
in any program or activity receiving program with respect to individuals of
EPA assistance under the Federal a particular race, color, national ori-
Water Pollution Control Act, as gin, or sex.
amended, including the Environmental (c) A recipient shall not choose a site
Financing Act of 1972. or location of a facility that has the
§ 7.35 Specific prohibitions. purpose or effect of excluding individ-
uals from, denying them the benefits
(a) As to any program or activity re- of, or subjecting them to discrimina-
ceiving EPA assistance, a recipient tion under any program to which this
shall not directly or through contrac- part applies on the grounds of race,
tual, licensing, or other arrangements color, or national origin or sex; or with
on the basis of race, color, national ori- the purpose or effect of defeating or
gin or, if applicable, sex: substantially impairing the accom-
(1) Deny a person any service, aid or plishment of the objectives of this sub-
other benefit of the program; part.
(2) Provide a person any service, aid (d) The specific prohibitions of dis-
or other benefit that is different, or is crimination enumerated above do not
provided differently from that provided limit the general prohibition of § 7.30.
to others under the program;
(3) Restrict a person in any way in
the enjoyment of any advantage or Subpart C—Discrimination Prohib-
privilege enjoyed by others receiving ited on the Basis of Handicap
any service, aid, or benefit provided by
§ 7.45 General prohibition.
the program;
(4) Subject a person to segregation in No qualified handicapped person
any manner or separate treatment in shall solely on the basis of handicap be
any way related to receiving services excluded from participation in, be de-
or benefits under the program; nied the benefits of, or otherwise be
(5) Deny a person or any group of per- subjected to discrimination under any
sons the opportunity to participate as program or activity receiving EPA as-
members of any planning or advisory sistance.
body which is an integral part of the
program, such as a local sanitation § 7.50 Specific prohibitions against dis-
board or sewer authority; crimination.
(6) Discriminate in employment on (a) A recipient, in providing any aid,
the basis of sex in any program subject benefit or service under any program
to section 13, or on the basis of race, or activity receiving EPA assistance
color, or national origin in any pro- shall not, on the basis of handicap, di-
gram whose purpose is to create em- rectly or through contractual, licens-
ployment; or, by means of employment ing, or other arrangement:
discrimination, deny intended bene- (1) Deny a qualified handicapped per-
ficiaries the benefits of the EPA assist- son any service, aid or other benefit of
ance program, or subject the bene- a federally assisted program;
ficiaries to prohibited discrimination. (2) Provide different or separate aids,
(7) In administering a program or ac- benefits, or services to handicapped
tivity receiving Federal financial as- persons or to any class of handicapped
sistance in which the recipient has pre- persons than is provided to others un-
viously discriminated on the basis of less the action is necessary to provide
115
§ 7.55 40 CFR Ch. I (7–1–00 Edition)
qualified handicapped persons with § 7.55 Separate or different programs.

aids, benefits, or services that are as
Recipients shall not deny a qualified
effective as those provided to others;
handicapped person an opportunity
(3) Aid or perpetuate discrimination equal to that afforded others to partici-
against a qualified handicapped person pate in or benefit from the aid, benefit,
by providing significant assistance to or service in the program receiving
an entity that discriminates on the EPA assistance. Recipients shall ad-
basis of handicap in providing aids, minister programs in the most inte-
benefits, or services to beneficiaries of grated setting appropriate to the needs
the recipient’s program; of qualified handicapped persons.
(4) Deny a qualified handicapped per-
son the opportunity to participate as a § 7.60 Prohibitions and requirements
member of planning or advisory boards; relating to employment.
or (a) No qualified handicapped person
(5) Limit a qualified handicapped per- shall, on the basis of handicap, be sub-
son in any other way in the enjoyment jected to discrimination in employ-
of any right, privilege, advantage, or ment under any program or activity
opportunity enjoyed by others receiv- that receives or benefits from Federal
ing an aid, benefit or service from the assistance.
program. (b) A recipient shall make all deci-
(b) A recipient may not, in deter- sions concerning employment under
mining the site or location of a facil- any program or activity to which this
ity, make selections: (1) That have the part applies in a manner which ensures
effect of excluding handicapped persons that discrimination on the basis of
from, denying them the benefits of, or handicap does not occur, and shall not
otherwise subjecting them to discrimi- limit, segregate, or classify applicants
nation under any program or activity or employees in any way that ad-
that receives or benefits from EPA as- versely affects their opportunities or
sistance or (2) that have the purpose or status because of handicap.
effect of defeating or substantially im- (c) The prohibition against discrimi-
pairing the accomplishment of the ob- nation in employment applies to the
jectives of the program or activity re- following activities:
ceiving EPA assistance with respect to (1) Recruitment, advertising, and the
handicapped persons. processing of applications for employ-
ment;
(c) A recipient shall not use criteria
or methods of administering any pro- (2) Hiring, upgrading, promotion,
gram or activity receiving EPA assist- award of tenure, demotion, transfer,
layoff, termination, right of return
ance which have the effect of sub-
from layoff, and rehiring;
jecting individuals to discrimination
(3) Rates of pay or any other form of
because of their handicap, or have the
compensation and changes in com-
effect of defeating or substantially im-
pensation;
pairing accomplishment of the objec-
(4) Job assignments, job classifica-
tives of such program or activity with
tions, organizational structures, posi-
respect to handicapped persons.
tion descriptions, lines of progression,
(d) Recipients shall take appropriate and seniority lists;
steps to ensure that communications
(5) Leaves of absence, sick leave, or
with their applicants, employees, and any other leave;
beneficiaries are available to persons
(6) Fringe benefits available by vir-
with impaired vision and hearing.
tue of employment, whether or not ad-
(e) The exclusion of non-handicapped ministered by the recipient;
persons or specified classes of handi- (7) Selection and financial support
capped persons from programs limited for training, including apprenticeship,
by Federal statute or Executive Order professional meetings, conferences, and
to handicapped persons or a different other related activities, and selection
class of handicapped persons is not pro- for leaves of absence to pursue train-
hibited by this subpart. ing;
116
(8) Employer sponsored activities, in- alteration in the nature of its program
cluding social or recreational pro- or activity or in undue financial and
grams; or administrative burdens. If an action
(9) Any other term, condition, or would result in such an alternation or
privilege of employment. such financial and administrative bur-
(d) A recipient shall not participate dens, the recipient shall be required to
in a contractual or other relationship take any other action that would not
that has the effect of subjecting quali- result in such an alteration or finan-
fied handicapped applicants or employ- cial and administrative burdens but
ees to discrimination prohibited by would nevertheless ensure that handi-
this subpart. The relationships referred capped persons receive the benefits and
to in this paragraph include relation- services of the program or activity re-
ships with employment and referral ceiving EPA assistance.
agencies, with labor unions, with orga- (b) Methods of making existing pro-
nizations providing or administering grams accessible. A recipient may com-
fringe benefits to employees of the reply with the accessibility requirements
cipient, and with organizations proof this section by making structural
viding training and apprenticeship pro- changes, redesigning equipment, reas-
grams. signing services to accessible buildings,
(e) A recipient shall make reasonable assigning aides to beneficiaries, or any
accommodation to the known physical other means that make its program or
or mental limitations of an otherwise activity accessible to handicapped per-
qualified handicapped applicant or em- sons. In choosing among alternatives, a
ployee unless the recipient can dem- recipient must give priority to meth-
onstrate that the accommodation ods that offer program benefits to
would impose an undue hardship on the handicapped persons in the most inte-
operation of its program. grated setting appropriate.
(f) A recipient shall not use employ- (c) Deadlines. (1) Except where struc-
ment tests or criteria that discrimi- tural changes in facilities are nec-
nate against handicapped persons and essary, recipients must adhere to the
shall ensure that employment tests are provisions of this section within 60
adapted for use by persons who have days after the effective date of this
handicaps that impair sensory, man- part.
ual, or speaking skills. (2) Recipients having an existing fa-
(g) A recipient shall not conduct a cility which does require alterations in
preemployment medical examination order to make a program or activity
or make a preemployment inquiry as accessible must prepare a transition
to whether an applicant is a handi- plan in accordance with § 7.75 within
capped person or as to the nature or se- six months from the effective date of
verity of a handicap except as per- this part. The recipient must complete
mitted by the Department of Justice in the changes as soon as possible, but not
28 CFR 42.513. later than three years from date of
award.
§ 7.65 Accessibility. (d) Notice of accessibility. The recipi-
(a) General. A recipient shall operate ent must make sure that interested
each program or activity receiving persons, including those with impaired
EPA assistance so that such program vision or hearing, can find out about
or activity, when viewed in its en- the existence and location of the as-
tirety, is readily accessible to and usa- sisted program services, activities, and
ble by handicapped persons. This para- facilities that are accessible to and us-
graph does not: able by handicapped persons.
(1) Necessarily require a recipient to (e) Structural and financial feasibility.
make each of its existing facilities or This section does not require struc-
every part of an existing facility acces- tural alterations to existing facilities
sible to and usable by handicapped per- if making such alterations would not
sons. be structurally or financially feasible.
(2) Require a recipient to take any An alteration is not structurally fea-
action that the recipient can dem- sible when it has little likelihood of
onstrate would result in a fundamental being accomplished without removing
117
§ 7.70 40 CFR Ch. I (7–1–00 Edition)
or altering a load-bearing structural (a) Requirements. The transition plan

member. Financial feasibility shall must set forth the steps needed to com-
take into account the degree to which plete the structural changes required
the alteration work is to be assisted by and must be developed with the assist-
EPA assistance, the cost limitations of ance of interested persons, including
the program under which such assist- handicapped persons or organizations
ance is provided, and the relative cost representing handicapped persons. At a
of accomplishing such alterations in minimum, the transition plan must:
manners consistent and inconsistent (1) Identify the physical obstacles in
with accessibility. the recipient’s facilities that limit
handicapped persons’ access to its pro-
§ 7.70 New construction. gram or activity,
(a) General. New facilities shall be de- (2) Describe in detail what the recipi-
signed and constructed to be readily ent will do to make the facilities acces-
accessible to and usable by handi- sible,
capped persons. Alterations to existing (3) Specify the schedule for the steps
facilities shall, to the maximum extent needed to achieve full program accessi-
feasible, be designed and constructed to bility, and include a year-by-year time-
be readily accessible to and usable by table if the process will take more than
handicapped persons. one year,
(b) Conformance with Uniform Federal (4) Indicate the person responsible for
Accessibility Standards. (1) Effective as carrying out the plan.
of January 18, 1991, design, construc- (b) Availability. Recipients shall make
tion, or alteration of buildings in con- available a copy of the transition plan
formance with sections 3-8 of the Uni- to the OCR upon request and to the
form Federal Accessibility Standards public for inspection at either the site
(USAF) (appendix A to 41 CFR subpart of the project or at the recipient’s
101–19.6) shall be deemed to comply main office.
with the requirements of this section
with respect to those buildings. Depar- Subpart D—Requirements for
tures from particular technical and Applicants and Recipients
scoping requirements of UFAS by the
use of other methods are permitted § 7.80 Applicants.
where substantially equivalent or (a) Assurances—(1) General. Appli-
greater access to and usability of the cants for EPA assistance shall submit
building is provided. an assurance with their applications
(2) For purposes of this section, sec- stating that, with respect to their pro-
tion 4.1.6(1)(g) of UFAS shall be inter- grams or activities that receive EPA
preted to exempt from the require- assistance, they will comply with the
ments of UFAS only mechanical rooms requirements of this part. Applicants
and other spaces that, because of their must also submit any other informa-
intended use, will not require accessi- tion that the OCR determines is nec-
bility to the public or beneficiaries or essary for preaward review. The appli-
result in the employment or residence cant’s acceptance of EPA assistance is
therein of persons with physical handi- an acceptance of the obligation of this
caps. assurance and this part.
(3) This section does not require re- (2) Duration of assurance—(i) Real
cipients to make building alterations property. When EPA awards assistance
that have little likelihood of being ac- in the form of real property, or assist-
complished without removing or alter- ance to acquire real property, or struc-
ing a load-bearing structural member. tures on the property, the assurance
[49 FR 1659, Jan. 12, 1984, as amended at 55 will obligate the recipient, or trans-
FR 52138, 52142, Dec. 19, 1990] feree, during the period the real prop-
erty or structures are used for the pur-
§ 7.75 Transition plan. pose for which EPA assistance is ex-
If structural changes to facilities are tended, or for another purpose in which
necessary to make the program acces- similar services or benefits are pro-
sible to handicapped persons, a recipi- vided. The transfer instrument shall
ent must prepare a transition plan. contain a covenant running with the
118
land which assures nondiscrimination. cipient’s investigation was completed,

Where applicable, the covenant shall the disposition, and the date of disposi-
also retain a right of reverter which tion; and
will permit EPA to recover the prop- (4) Reports of any compliance reviews
erty if the covenant is ever broken. conducted by any other agencies.
(ii) Personal property. When EPA pro- (b) Additional compliance information.
vides assistance in the form of personal If necessary, the OCR may require re-
property, the assurance will obligate cipients to submit data and informa-
the recipient for so long as it continues tion specific to certain programs to de-
to own or possess the property. termine compliance where there is rea-
(iii) Other forms of assistance. In all son to believe that discrimination may
other cases, the assurance will obligate exist in a program or activity receiving
the recipient for as long as EPA assist- EPA assistance or to investigate a
ance is extended. complaint alleging discrimination in a
(b) Wastewater treatment project. EPA program or activity receiving EPA as-
Form 4700–4 shall also be submitted sistance. Requests shall be limited to
with applications for assistance under data and information which is relevant
Title II of the Federal Water Pollution to determining compliance and shall be
Control Act. accompanied by a written statement
(c) Compliance information. Each ap- summarizing the complaint or setting
plicant for EPA assistance shall submit forth the basis for the belief that dis-
regarding the program or activity that crimination may exist.
would receive EPA assistance: (c) Self-evaluation. Each recipient
(1) Notice of any lawsuit pending must conduct a self-evaluation of its
against the applicant alleging discrimi- administrative policies and practices,
nation on the basis of race, color, sex, to consider whether such policies and
handicap, or national origin; practices may involve handicap dis-
(2) A brief description of any applica- crimination prohibited by this part.
tions pending to other Federal agencies When conducting the self-evaluation,
for assistance, and of Federal assist- the recipient shall consult with inter-
ance being provided at the time of the ested and involved persons including
application; and handicapped persons or organizations
(3) A statement describing any civil representing handicapped persons. The
rights compliance reviews regarding evaluation shall be completed within 18
the applicant conducted during the months after the effective date of this
two-year period before the application, part.
and information concerning the agency (d) Preparing compliance informa-
or organization performing the re- tion. In preparing compliance informa-
views. tion, a recipient must:
(Approved by the Office of Management and (1) [Reserved]
Budget under control number 2000–0006) (2) Use the racial classifications set
forth in § 7.25 in determining categories
§ 7.85 Recipients. of race, color or national origin.
(a) Compliance information. Each re- (e) Maintaining compliance informa-
cipient shall collect, maintain, and on tion. Recipients must keep records for
request of the OCR, provide the fol- paragraphs (a) and (b) of this section
lowing information to show compliance for three (3) years after completing the
with this part: project. When any complaint or other
(1) A brief description of any lawsuits action for alleged failure to comply
pending against the recipient that al- with this part is brought before the
lege discrimination which this part three-year period ends, the recipient
prohibits; shall keep records until the complaint
(2) Racial/ethnic, national origin, sex is resolved.
and handicap data, or EPA Form 4700– (f) Accessibility to compliance infor-
4 information submitted with its appli- mation. A recipient shall:
cation; (1) Give the OCR access during nor-
(3) A log of discrimination com- mal business hours to its books,
plaints which identifies the complaint, records, accounts and other sources of
the date it was filed, the date the re- information, including its facilities, as
119
§ 7.90 40 CFR Ch. I (7–1–00 Edition)
may be pertinent to ascertain compli- ployee designated in accordance with

ance with this part; § 7.85.
(2) Make compliance information (b) Deadline. Recipients of assistance
available to the public upon request; must provide initial notice by thirty
and (30) calendar days after award and con-
(3) Assist in obtaining other required tinuing notice for the duration of EPA
information that is in the possession of assistance.
other agencies, institutions, or persons
not under the recipient’s control. If § 7.100 Intimidation and retaliation
such party refuses to release that in- prohibited.
formation, the recipient shall inform No applicant, recipient, nor other
the OCR and explain its efforts to ob- person shall intimidate, threaten, co-
tain the information. erce, or discriminate against any indi-
(g) Coordination of compliance effort. If vidual or group, either:
the recipient employs fifteen (15) or (a) For the purpose of interfering
more employees, it shall designate at with any right or privilege guaranteed
least one person to coordinate its ef- by the Acts or this part, or
forts to comply with its obligations (b) Because the individual has filed a
under this part. complaint or has testified, assisted or
participated in any way in an inves-
(Approved by the Office of Management and
Budget under control number 2000–0006) tigation, proceeding or hearing under
this part, or has opposed any practice
§ 7.90 Grievance procedures. made unlawful by this regulation.
(a) Requirements. Each recipient shall
adopt grievance procedures that assure Subpart E—Agency Compliance
the prompt and fair resolution of com- Procedures
plaints which allege violation of this
part. § 7.105 General policy.
(b) Exception. Recipients with fewer EPA’s Administrator, Director of the
than fifteen (15) full-time employees Office of Civil Rights, Project Officers
need not comply with this section un- and other responsible officials shall
less the OCR finds a violation of this seek the cooperation of applicants and
part or determines that creating a recipients in securing compliance with
grievance procedure will not signifi- this part, and are available to provide
cantly impair the recipient’s ability to help.
provide benefits or services.
§ 7.110 Preaward compliance.
§ 7.95 Notice of nondiscrimination. (a) Review of compliance information.
(a) Requirements. A recipient shall Within EPA’s application processing
provide initial and continuing notice period, the OCR will determine wheth-
that it does not discriminate on the er the applicant is in compliance with
basis of race, color, national origin, or this part and inform the Award Offi-
handicap in a program or activity re- cial. This determination will be based
ceiving EPA assistance or, in programs on the submissions required by § 7.80
covered by section 13, on the basis of and any other information EPA re-
sex. Methods of notice must accommo- ceives during this time (including com-
date those with impaired vision or plaints) or has on file about the appli-
hearing. At a minimum, this notice cant. When the OCR cannot make a de-
must be posted in a prominent place in termination on the basis of this infor-
the recipient’s offices or facilities. mation, additional information will be
Methods of notice may also include requested from the applicant, local
publishing in newspapers and maga- government officials, or interested per-
zines, and placing notices in recipient’s sons or organizations, including handi-
internal publications or on recipient’s capped persons or organizations rep-
printed letterhead. Where appropriate, resenting such persons. The OCR may
such notice must be in a language or also conduct an on-site review only
languages other than English. The no- when it has reason to believe discrimi-
tice must identify the responsible em- nation may be occurring in a program
120
or activity which is the subject of the (1) Agree to the OCR’s recommenda-
application. tions, or
(b) Voluntary compliance. If the review (2) Submit a written response suffi-
indicates noncompliance, an applicant cient to demonstrate that the prelimi-
may agree in writing to take the steps nary findings are incorrect, or that
the OCR recommends to come into compliance may be achieved through
compliance with this part. The OCR steps other than those recommended
must approve the written agreement by OCR.
before any award is made. If the recipient does not take one of
(c) Refusal to comply. If the applicant these actions within fifty (50) calendar
refuses to enter into such an agree- days after receiving this preliminary
ment, the OCR shall follow the proce- notice, the OCR shall, within fourteen
dure established by paragraph (b) of (14) calendar days, send a formal writ-
§ 7.130. ten determination of noncompliance to
the recipient and copies to the Award
§ 7.115 Postaward compliance. Official and Assistant Attorney Gen-
(a) Periodic review. The OCR may pe- eral.
riodically conduct compliance reviews (e) Voluntary compliance time limits.
of any recipient’s programs or activi- The recipient will have ten (10) cal-
ties receiving EPA assistance, includ- endar days from receipt of the formal
ing the request of data and informa- determination of noncompliance in
tion, and may conduct on-site reviews which to come into voluntary compli-
when it has reason to believe that dis- ance. If the recipient fails to meet this
crimination may be occurring in such deadline, the OCR must start pro-
programs or activities. ceedings under paragraph (b) of § 7.130.
(b) Notice of review. After selecting a (f) Form of voluntary compliance agree-
recipient for review or initiating a ments. All agreements to come into vol-
complaint investigation in accordance untary compliance must:
with § 7.120, the OCR will inform the re- (1) Be in writing;
cipient of: (2) Set forth the specific steps the re-
(1) The nature of and schedule for recipient has agreed to take, and
view, or investigation; and (3) Be signed by the Director, OCR or
(2) Its opportunity, before the deter- his/her designee and an official with
mination in paragraph (d) of this sec- authority to legally bind the recipient.
tion is made, to make a written sub-
mission responding to, rebutting, or de- § 7.120 Complaint investigations.
nying the allegations raised in the re- The OCR shall promptly investigate
view or complaint. all complaints filed under this section
(c) Postreview notice. (1) Within 180 unless the complainant and the party
calendar days from the start of the complained against agree to a delay
compliance review or complaint inves- pending settlement negotiations.
tigation, the OCR will notify the re- (a) Who may file a complaint. A person
cipient in writing by certified mail, re- who believes that he or she or a spe-
turn receipt requested, of: cific class of persons has been discrimi-
(i) Preliminary findings; nated against in violation of this part
(ii) Recommendations, if any, for may file a complaint. The complaint
achieving voluntary compliance; and may be filed by an authorized rep-
(iii) Recipient’s right to engage in resentative. A complaint alleging em-
voluntary compliance negotiations ployment discrimination must identify
where appropriate. at least one individual aggrieved by
(2) The OCR will notify the Award Of- such discrimination. Complaints solely
ficial and the Assistant Attorney Gen- alleging employment discrimination
eral for Civil Rights of the preliminary against an individual on the basis of
findings of noncompliance. race, color, national origin, sex or reli-
(d) Formal determination of noncompli- gion shall be processed under the pro-
ance. After receiving the notice of the cedures for complaints of employment
preliminary finding of noncompliance discrimination filed against recipients
in paragraph (c) of this section, the re- of Federal assistance (see 28 CFR part
cipient may: 42, subpart H and 29 CFR part 1691).
121
§ 7.125 40 CFR Ch. I (7–1–00 Edition)
Complainants are encouraged but not lished by paragraphs (c) through (e) of
required to make use of any grievance § 7.115.
procedure established under § 7.90 be- (ii) [Reserved]
fore filing a complaint. Filing a com- (e) Confidentiality. EPA agrees to
plaint through a grievance procedure keep the complainant’s identity con-
does not extend the 180 day calendar fidential except to the extent necessary
requirement of paragraph (b)(2 of this to carry out the purposes of this part,
section. including the conduct of any investiga-
(b) Where, when and how to file com- tion, hearing, or judicial proceeding
plaint. The complainant may file a arising thereunder. Ordinarily in com-
complaint at any EPA office. The complaints of employment discrimination,
plaint may be referred to the region in the name of the complainant will be
which the alleged discriminatory acts given to the recipient with the notice
occurred. of complaint.
(1) The complaint must be in writing (f) [Reserved]
and it must describe the alleged dis- (g) Dismissal of complaint. If OCR’s in-
criminatory acts which violate this vestigation reveals no violation of this
part. part, the Director, OCR, will dismiss
(2) The complaint must be filed with- the complaint and notify the complain-
in 180 calendar days of the alleged dis- ant and recipient.
criminatory acts, unless the OCR
waives the time limit for good cause. § 7.125 Coordination with other agen-
The filing of a grievance with the re- cies.
cipient does not satisfy the require- If, in the conduct of a compliance re-
ment that complaints must be filed view or an investigation, it becomes
within 180 days of the alleged discrimi- evident that another agency has juris-
natory acts. diction over the subject matter, OCR
(c) Notification. The OCR will notify will cooperate with that agency during
the complainant and the recipient of the continuation of the review of inves-
the agency’s receipt of the complaint tigation. EPA will:
within five (5) calendar days. (a) Coordinate its efforts with the
(d) Complaint processing procedures. other agency, and
After acknowledging receipt of a com- (b) Ensure that one of the agencies is
plaint, the OCR will immediately ini- designated the lead agency for this pur-
tiate complaint processing procedures. pose. When an agency other than EPA
(1) Preliminary investigation. (i) Within serves as the lead agency, any action
twenty (20) calendar days of acknowl- taken, requirement imposed, or deter-
edgment of the complaint, the OCR mination made by the lead agency,
will review the complaint for accept- other than a final determination to
ance, rejection, or referral to the ap- terminate funds, shall have the same
propriate Federal agency. effect as though such action had been
(ii) If the complaint is accepted, the taken by EPA.
OCR will notify the complainant and
the Award Official. The OCR will also § 7.130 Actions available to EPA to ob-
notify the applicant or recipient com- tain compliance.
plained against of the allegations and (a) General. If compliance with this
give the applicant or recipient oppor- part cannot be assured by informal
tunity to make a written submission means, EPA may terminate or refuse
responding to, rebutting, or denying to award or to continue assistance.
the allegations raised in the complaint. EPA may also use any other means au-
(iii) The party complained against thorized by law to get compliance, in-
may send the OCR a response to the cluding a referral of the matter to the
notice of complaint within thirty (30) Department of Justice.
calendar days of receiving it. (b) Procedure to deny, annul, suspend
(2) Informal resolution. (i) OCR shall or terminate EPA assistance—(1) OCR
attempt to resolve complaints infor- finding. If OCR determines that an ap-
mally whenever possible. When a com- plicant or recipient is not in compli-
plaint cannot be resolved informally, ance with this part, and if compliance
OCR shall follow the procedures estab- cannot be achieved voluntarily, OCR
122
shall make a finding of noncompliance. ance Programs (40 CFR part 30, subpart
The OCR will notify the applicant or L).
recipient (by registered mail, return (4) Scope of decision. The denial, an-
receipt requested) of the finding, the nulment, termination or suspension
action proposed to be taken, and the shall be limited to the particular appli-
opportunity for an evidentiary hearing. cant or recipient who was found to
(2) Hearing. (i) Within 30 days of re- have discriminated, and shall be lim-
ceipt of the above notice, the applicant ited in its effect to the particular pro-
or recipient shall file a written answer, gram or the part of it in which the dis-
under oath or affirmation, and may re- crimination was found.
quest a hearing.
(ii) The answer and request for a § 7.135 Procedure for regaining eligi-
hearing shall be sent by registered bility.
mail, return receipt requested, to the (a) Requirements. An applicant or re-
Chief Administrative Law Judge (ALJ) cipient whose assistance has been de-
(A–110), United States Environmental nied, annulled, terminated, or sus-
Protection Agency, 401 M Street, SW., pended under this part regains eligi-
Washington, DC 20460. Upon receipt of bility as soon as it:
a request for a hearing, the ALJ will (1) Provides reasonable assurance
send the applicant or recipient a copy that it is complying and will comply
of the ALJ’s procedures. If the recipi- with this part in the future, and
ent does not request a hearing, it shall (2) Satisfies the terms and conditions
be deemed to have waived its right to a for regaining eligibility that are speci-
hearing, and the OCR finding shall be fied in the denial, annulment, termi-
deemed to be the ALJ’s determination. nation or suspension order.
(3) Final decision and disposition. (i) (b) Procedure. The applicant or recipi-
The applicant or recipient may, within ent must submit a written request to
30 days of receipt of the ALJ’s deter- restore eligibility to the OCR declaring
mination, file with the Administrator that it has met the requirements set
its exceptions to that determination. forth in paragraph (a) of this section.
When such exceptions are filed, the Ad- Upon determining that these require-
ministrator may, within 45 days after ments have been met, the OCR must
the ALJ’s determination, serve to the notify the Award Official, and the ap-
applicant or recipient, a notice that he/ plicant or recipient that eligibility has
she will review the determination. In been restored.
the absence of either exceptions or no- (c) Rights on denial of restoration of
tice of review, the ALJ’s determination eligibility. If the OCR denies a request
shall constitute the Administrator’s to restore eligibility, the applicant or
final decision. recipient may file a written request for
(ii) If the Administrator reviews the a hearing before the EPA Chief Admin-
ALJ’s determination, all parties shall istrative Law Judge in accordance with
be given reasonable opportunity to file paragraph (c) § 7.130, listing the reasons
written statements. A copy of the Ad- it believes the OCR was in error.
ministrator’s decision will be sent to
the applicant or recipient. APPENDIX A TO PART 7—EPA ASSIST-
(iii) If the Administrator’s decision is ANCE PROGRAMS AS LISTED IN THE
to deny an application, or annul, sus- ‘‘CATALOG OF FEDERAL DOMESTIC
pend or terminate EPA assistance, that ASSISTANCE’’
decision becomes effective thirty (30) 1. Assistance provided by the Office of Air,
days from the date on which the Ad- Noise and Radiation under the Clean Air Act
ministrator submits a full written re- of 1977, as amended; Pub. L. 95–95, 42 U.S.C.
port of the circumstances and grounds 7401 et seq. (ANR 66.001)
for such action to the Committees of 2. Assistance provided by the Office of Air,
the House and Senate having legisla- Noise and Radiation under the Clean Air Act
of 1977, as amended; Pub. L. 95–95, 42 U.S.C.
tive jurisdiction over the program or
7401 et seq. (ANR 66.003)
activity involved. The decision of the 3. Assistance provided by the Office of
Administrator shall not be subject to Water under the Clean Water Act of 1977, as
further administrative appeal under amended; sections 101(e), 109(b), 201–05, 207,
EPA’s General Regulation for Assist- 208(d), 210–12, 215–19, 304(d)(3), 313, 501, 502, 511
123
and 516(b); Pub. L. 97–117; Pub. L. 95–217; Pub. 15. Assistance provided by the Office of Re-
L. 96–483; 33 U.S.C. 1251 et seq. (OW 66.418) search and Development under the Public
4. Assistance provided by the Office of Health Service Act as amended by the Safe
Water under the Clean Water Act of 1977, as Drinking Water Act, as amended by Pub. L.
amended; section 106; Pub. L. 95–217; 33 95–190 (ORD 66.506)
U.S.C. 1251 et seq. (OW 66.419) 16. Assistance provided by the Office of Re-
5. Assistance provided by the Office of search and Development under the Toxic
Water under the Clean Water Act of 1977, as Substances Control Act; Pub. L. 94–469; 15
amended; Pub. L. 95–217; 33 U.S.C. 1251 et seq. U.S.C. 2609; section 10. (ORD 66.507)
(OW 66.426) 17. Assistance provided by the Office of Ad-
6. Assistance provided by the Office of ministration, including but not limited to:
Water under the Public Health Service Act, Clean Air Act of 1977, as amended, Pub. L. 95–
as amended by the Safe Drinking Water Act, 95; 42 U.S.C. 7401 et seq., Clean Water Act of
Pub. L. 93–523; as amended by Pub. L. 93–190; 1977, as amended; Pub. L. 95–217; 33 U.S.C.
Pub. L. 96–63; and Pub. L. 93–502. (OW 66.432) 1251 et seq.; Solid Waste Disposal Act, as
7. Assistance provided by the Office of amended by the Resource Conservation and
Water under the Safe Drinking Water Act, Recovery Act of 1976; 42 U.S.C. 6901; Pub. L.
Pub. L. 93–523, as amended by Pub. L. 96–63, 94–580; Federal Insecticide, Fungicide and
Pub. L. 95–190, and Pub. L. 96–502. (OW 66.433) Rodenticide Act; Pub. L. 92–516; 7 U.S.C. 136
8. Assistance provided by the Office of et seq. as amended by Pub. L.’s 94–140 and 95–
Water under the Clean Water Act of 1977, sec- 396; Public Health Service Act, as amended
tion 205(g), as amended by Pub. L. 95–217 and by the Safe Drinking Water Act, as amended
the Federal Water Pollution Control Act, as by Pub. L. 95–190. (OA 66.600)
amended; Pub. L. 97–117; 33 U.S.C. 1251 et seq. 18. Assistance provided by the Office of Ad-
(OW 66.438) ministration under the Clean Water Act of
9. Assistance provided by the Office of 1977, as amended; Pub. L. 95–217; section 213;
Water under the Resource Conservation and 33 U.S.C. 1251 et seq. (OA 66.603)
Recovery Act of 1976; as amended by the 19. Assistance provided by the Office of En-
Solid Waste Disposal Act; Pub. L. 94–580; sec- forcement Counsel under the Federal Insecti-
tion 3011, 42 U.S.C. 6931, 6947, 6948–49. (OW cide and Rodenticide Act, as amended; Pub.
66.802). L. 92–516; 7 U.S.C. 136 et seq., as amended by
10. Assistance provided by the Office of Re- Pub. L. 94–140, section 23(a) and Pub. L. 95–
search and Development under the Clean Air 396. (OA 66.700)
Act of 1977, as amended; Pub. L. 95–95; 42 20. Assistance provided by the Office of
U.S.C. et seq.; Clean Water Act of 1977, as Solid Waste and Emergency Response under
amended; Pub. L. 95–217; 33 U.S.C. 1251 et seq., the Comprehensive Environmental Re-
section 8001 of the Solid Water Disposal Act, sponses, Compensation and Liability Act of
as amended by the Resource Conservation 1980; Pub. L. 96–510, section 3012, 42 U.S.C.
and Recovery Act of 1976; Pub. L. 94–580; 42 9601, et seq. (OSW—number not to be assigned
U.S.C. 6901, Public Health Service Act as since Office of Management and Budget does
amended by the Safe Drinking Water Act as not catalog one-year programs.)
amended by Pub. L. 95–190; Federal Insecti- 21. Assistance provided by the Office of
cide, Fungicide and Rodenticide Act; Pub. L. Water under the Clean Water Act as amend-
95–516; 7 U.S.C. 136 et seq., as amended by ed; Pub. L. 97–117, 33 U.S.C. 1313. (OW—66.454)
Pub. L.’s 94–140 and 95–396; Toxic Substances
Control Act; 15 U.S.C. 2609; Pub. L. 94–469. PART 8—ENVIRONMENTAL IMPACT
(ORD 66.500) ASSESSMENT OF NONGOVERN-
11. Assistance provided by the Office of Re-
search and Development under the Clean Air MENTAL ACTIVITIES IN ANTARC-
Act of 1977, as amended; Pub. L. 95–95; 42 TICA
U.S.C. 7401 et seq. (ORD 66.501)
12. Assistance provided by the Office of Re- Sec.
search and Development under the Federal 8.1 Purpose.
Insecticide, Fungicide and Rodenticide Act, 8.2 Applicability and effect.
Pub. L. 95–516, 7 U.S.C. 136 et seq., as amended 8.3 Definitions.
by Pub. L.’s 94–140 and 95–396. (ORD 66.502) 8.4 Preparation of environmental docu-
13. Assistance provided by the Office of Re- ments, generally.
search and Development under the Solid 8.5 Submission of environmental docu-
Waste Disposal Act, as amended by the Re- ments.
source Conservation and Recovery Act of 8.6 Preliminary environmental review.
1976; 42 U.S.C. 6901, Pub. L. 94–580, section 8.7 Initial environmental evaluation.
8001. (ORD 66.504) 8.8 Comprehensive environmental evalua-
14. Assistance provided by the Office of Re- tion.
search and Development under the Clean 8.9 Measures to assess and verify environ-
Water Act of 1977, as amended; Pub. L. 95–217; mental impacts.
33 U.S.C. 1251 et seq. (ORD 66.505) 8.10 Cases of emergency.
124
8.11 Prohibited acts, enforcement and pen- pacts on the Antarctic environment
alties. are identified by the operator.
8.12 Coordination of reviews from other (b) The requirements set forth in this
Parties. part apply to nongovernmental activi-
AUTHORITY: 16 U.S.C. 2401 et seq., as amend- ties for which the United States is re-
ed, 16 U.S.C. 2403a. quired to give advance notice under
SOURCE: 62 FR 23545, Apr. 30, 1997, unless
paragraph 5 of Article VII of the Ant-
otherwise noted. arctic Treaty of 1959: All nongovern-
mental expeditions to and within Ant-
§ 8.1 Purpose. arctica organized in or proceeding from
its territory.
(a) This part is issued pursuant to the (c) This part does not apply to activi-
Antarctic Science, Tourism, and Con- ties undertaken in the Antarctic Trea-
servation Act of 1996. As provided in ty area that are governed by the Con-
that Act, this part implements the re- vention on the Conservation of Ant-
quirements of Article 8 and Annex I to arctic Marine Living Resources or the
the Protocol on Environmental Protec- Convention for the Conservation of
tion to the Antarctic Treaty of 1959 and Antarctic Seals. Persons traveling to
provides for: Antarctica are subject to the require-
(1) the environmental impact assessments of the Marine Mammal Protec-
ment of nongovernmental activities, tion Act, 16 U.S.C. 1371 et seq.
including tourism, for which the (d) This part is effective on April 30,
United States is required to give ad- 1997. This part will expire upon the ear-
vance notice under paragraph 5 of Arti- lier of the end of the 2000–2001 austral
cle VII of the Antarctic Treaty of 1959; summer season or upon issuance of a
and final regulation.
(2) coordination of the review of in-
[62 FR 23545, Apr. 30, 1997, as amended at 63
formation regarding environmental im- FR 18326, Apr. 15, 1998]
pact assessment received by the United
States from other Parties under the § 8.3 Definitions.
Protocol.
As used in this part:
(b) The procedures in this part are Act means 16 U.S.C. 2401 et seq., Pub-
designed to: Ensure that nongovern- lic Law 104–227, the Antarctic Science,
mental operators identify and assess Tourism, and Conservation Act of 1996.
the potential impacts of their proposed Annex I refers to Annex I, Environ-
activities, including tourism, on the mental Impact Assessment, of the Pro-
Antarctic environment; that operators tocol.
consider these impacts in deciding Antarctica means the Antarctic Trea-
whether or how to proceed with pro- ty area; i.e., the area south of 60 de-
posed activities; and that operators grees south latitude.
provide environmental documentation Antarctic environment means the nat-
pursuant to the Act and Annex I of the ural and physical environment of Ant-
Protocol. These procedures are con- arctica and its dependent and associ-
sistent with and implement the envi- ated ecosystems, but excludes social,
ronmental impact assessment provi- economic, and other environments.
sions of Article 8 and Annex I to the Antarctic Treaty area means the area
Protocol on Environmental Protection south of 60 degrees south latitude.
to the Antarctic Treaty. Antarctic Treaty Consultative Meeting
(ATCM) means a meeting of the Parties
§ 8.2 Applicability and effect. to the Antarctic Treaty, held pursuant
(a) This part is intended to ensure to Article IX(1) of the Treaty.
that potential environmental effects of Comprehensive Environmental Evalua-
nongovernmental activities under- tion (CEE) means a study of the reason-
taken in Antarctica are appropriately ably foreseeable potential effects of a
identified and considered by the oper- proposed activity on the Antarctic en-
ator during the planning process and vironment, prepared in accordance
that to the extent practicable, appro- with the provisions of this part and in-
priate environmental safeguards which cludes all comments received thereon.
would mitigate or prevent adverse im- (See: 40 CFR 8.8.)
125
§ 8.4 40 CFR Ch. I (7–1–00 Edition)
Environmental document or environ- Protocol means the Protocol on Envi-

mental documentation (Document) means ronmental Protection to the Antarctic
a preliminary environmental review Treaty, done at Madrid, October 4, 1991,
memorandum, an initial environ- and all annexes thereto which are in
mental evaluation, or a comprehensive force for the United States.
environmental evaluation. This part means 40 CFR part 8.
Environmental impact assessment (EIA)
means the environmental review proc- § 8.4 Preparation of environmental
ess required by the provisions of this documents, generally.
part and by Annex I of the Protocol, (a) Basic information requirements. In
and includes preparation by the oper- addition to the information required
ator and U.S. government review of an pursuant to other sections of this part,
environmental document, and public all environmental documents shall
access to and circulation of environ- contain the following:
mental documents to other Parties and (1) The name, mailing address, and
the Committee on Environmental Pro- phone number of the operator;
tection as required by Annex I of the (2) The anticipated date(s) of depar-
Protocol. ture of each expedition to Antarctica;
EPA means the Environmental Pro- (3) An estimate of the number of per-
tection Agency. sons in each expedition;
Expedition means any activity under- (4) The means of conveyance of expe-
taken by one or more nongovernmental
dition(s) to and within Antarctica;
persons organized within or proceeding
(5) Estimated length of stay of each
from the United States to or within the
expedition in Antarctica;
Antarctic Treaty area for which ad-
vance notification is required under (6) Information on proposed landing
Paragraph 5 of Article VII of the Trea- sites in Antarctica; and
ty. (7) Information concerning training
Impact means impact on the Ant- of staff, supervision of expedition mem-
arctic environment and dependent and bers, and what other measures, if any,
associated ecosystems. that will be taken to avoid or minimize
Initial Environmental Evaluation (IEE) possible environmental impacts.
means a study of the reasonably fore- (b) Preparation of an environmental
seeable potential effects of a proposed document. Unless an operator deter-
activity on the Antarctic environment mines and documents that a proposed
prepared in accordance with 40 CFR 8.7. activity will have less than a minor or
Operator or operators means any per- transitory impact on the Antarctic en-
son or persons organizing a nongovern- vironment, the operator will prepare
mental expedition to or within Antarc- an IEE or CEE in accordance with this
tica. part. In making the determination
Person has the meaning given that what level of environmental docu-
term in section 1 of title 1, United mentation is appropriate, the operator
States Code, and includes any person should consider, as applicable, whether
subject to the jurisdiction of the and to what degree the proposed activ-
United States except that the term ity:
does not include any department, agen- (1) Has the potential to adversely af-
cy, or other instrumentality of the fect the Antarctic environment;
Federal Government. (2) May adversely affect climate or
Preliminary environmental review weather patterns;
means the environmental review de- (3) May adversely affect air or water
scribed under that term in 40 CFR 8.6. quality;
Preliminary Environmental Review (4) May affect atmospheric, terres-
Memorandum (PERM) means the docu- trial (including aquatic), glacial, or
mentation supporting the conclusion of marine environments;
the preliminary environmental review (5) May detrimentally affect the dis-
that the impact of a proposed activity tribution, abundance, or productivity
will be less than minor or transitory on of species, or populations of species of
the Antarctic environment. fauna and flora;
126
(6) May further jeopardize endan- expeditions, an operator may include

gered or threatened species or popu- more than one proposed expedition
lations of such species; within one environmental document
(7) May degrade, or pose substantial and one environmental document may
risk to, areas of biological, scientific, also be used to address expeditions
historic, aesthetic, or wilderness sig- being carried out by more than one op-
nificance; erator provided that the environmental
(8) Has highly uncertain environ- document indicates the names of each
mental effects, or involves unique or operator for which the environmental
unknown environmental risks; or documentation is being submitted pur-
(9) Together with other activities, suant to obligations under this part.
the effects of any one of which is indi-
vidually insignificant, may have at § 8.5 Submission of environmental doc-
least minor or transitory cumulative uments.
environmental effects. (a) An operator shall submit environ-
(c) Type of environmental document. mental documentation to the EPA for
The type of environmental document review. The EPA, in consultation with
required under this part depends upon other interested Federal agencies, will
the nature and intensity of the envi- carry out a review to determine if the
ronmental impacts that could result submitted environmental documenta-
from the activity under consideration. tion meets the requirements of Article
A PERM must be prepared by the oper- 8 and Annex I of the Protocol and the
ator to document the conclusion of the provisions of this part. The EPA will
operator’s preliminary environmental provide its comments, if any, on the
review that the impact of a proposed environmental documentation to the
activity on the Antarctic environment operator and will consult with the op-
will be less than minor or transitory. erator regarding any suggested revi-
(See: 40 CFR 8.6.) An IEE must be pre- sions. If EPA has no comments, or if
pared by the operator for proposed ac- the documentation is satisfactorily re-
tivities which may have at least (but vised in response to EPA’s comments,
no more than) a minor or transitory and the operator does not receive a no-
impact on the Antarctic environment. tice from EPA that the environmental
(See: 40 CFR 8.7.) A CEE must be pre- documentation does not meet the re-
pared by the operator if an IEE indi- quirements of Article 8 and Annex I of
cates, or if it is otherwise determined, the Protocol and the provisions of this
that a proposed activity is likely to part, the operator will have no further
have more than a minor or transitory obligations pursuant to the applicable
impact on the Antarctic environment requirements of this part provided that
(See: 40 CFR 8.8.) any appropriate measures, which may
(d) Incorporation of information and include monitoring, are put in place to
consolidation of environmental docu- assess and verify the impact of the ac-
mentation. (1) An operator may incor- tivity. Alternatively, following final
porate material into an environmental response from the operator, the EPA,
document by referring to it in the doc- in consultation with other Federal
ument when the effect will be to reduce agencies and with the concurrence of
paperwork without impeding the re- the National Science Foundation, will
view of the environmental document inform the operator that EPA finds
by EPA and other Federal agencies. that the environmental documentation
The incorporated material shall be does not meet the requirements of Ar-
cited and its content briefly described. ticle 8 and Annex I of the Protocol and
No material may be incorporated by re- the provisions of this part. If the oper-
ferring to it in the document unless it ator then proceeds with the expedition
is reasonably available to the EPA. without fulfilling the requirements of
(2) Provided that environmental doc- this part, the operator is subject to en-
umentation complies with all applica- forcement proceedings pursuant to sec-
ble provisions of Annex I to the Pro- tions 7, 8, and 9 of the Antarctic Con-
tocol and this part and is appropriate servation Act, as amended by the Act;
in light of the specific circumstances of 16 U.S.C. 2407, 2408, 2409, and 45 CFR
the operator’s proposed expedition or part 672.
127
§ 8.6 40 CFR Ch. I (7–1–00 Edition)
(b) The EPA may waive or modify the seventy-five (75) day response pe-
deadlines pursuant to this part where riod, it will be reviewed under the time
EPA determines an operator is acting frames set out for an IEE in 40 CFR 8.7.
in good faith and that circumstances If EPA recommends a CEE and one is
outside the control of the operator cre- prepared, it will be reviewed under the
ated delays, provided that the environ- time frames set out for a CEE in 40
mental documentation fully meets CFR 8.8.
deadlines under the Protocol.
§ 8.7 Initial environmental evaluation.
§ 8.6 Preliminary environmental re-
view. (a) Submission of IEE to the EPA. Un-
less a PERM has been submitted pursu-
(a) Unless an operator has deter-
ant to 40 CFR 8.6 which meets the envi-
mined to prepare an IEE or CEE, the
operator shall conduct a preliminary ronmental documentation require-
environmental review that assesses the ments under Article 8 and Annex I to
potential direct and reasonably fore- the Protocol and the provisions of this
seeable indirect impacts on the Ant- part or a CEE is being prepared, an IEE
arctic environment of the proposed ex- shall be submitted by the operator to
pedition. A Preliminary Environ- the EPA no fewer than ninety (90) days
mental Review Memorandum (PERM) before the proposed departure of the
shall contain sufficient detail to assess expedition.
whether the proposed activity may (b) Contents. An IEE shall contain
have less than a minor or transitory sufficient detail to assess whether a
impact, and shall be submitted to the proposed activity may have more than
EPA for review no less than 180 days a minor or transitory impact on the
before the proposed departure of the Antarctic environment and shall in-
expedition. The EPA, in consultation clude the following information:
with other interested Federal agencies, (1) A description of the proposed ac-
will review the PERM to determine if tivity, including its purpose, location,
it is sufficient to demonstrate that the duration, and intensity; and
activity will have less than a minor or (2) Consideration of alternatives to
transitory impact or whether addi- the proposed activity and any impacts
tional environmental documentation, that the proposed activity may have on
i.e., an IEE or CEE, is required to meet the Antarctic environment, including
the obligations of Article 8 and Annex consideration of cumulative impacts in
I of the Protocol. The EPA will provide
light of existing and known proposed
its comments to the operator within
activities.
fifteen (15) days of receipt of the
PERM, and the operator shall have sev- (c) Further environmental review. (1)
enty-five (75) days to prepare a revised The EPA, in consultation with other
PERM or an IEE, if necessary. Fol- interested Federal agencies, will re-
lowing the final response from the op- view an IEE to determine whether the
erator, EPA may make a finding that IEE meets the requirements under
the environmental documentation sub- Annex I to the Protocol and the provi-
mitted does not meet the requirements sions of this part. The EPA will provide
of Article 8 and Annex I of the Protocol its comments to the operator within
and the provisions of this part. This thirty (30) days of receipt of the IEE,
finding will be made with the concur- and the operator will have forty-five
rence of the National Science Founda- (45) days to prepare a revised IEE, if
tion. If EPA does not provide such no- necessary. Following the final response
tice within thirty (30) days, the oper- from the operator, EPA may make a
ator will be deemed to have met the re- finding that the documentation sub-
quirements of this part provided that mitted does not meet the requirements
any required procedures, which may in- of Article 8 and Annex I of the Protocol
clude appropriate monitoring, are put and the provisions of this part. This
in place to assess and verify the impact finding will be made with the concur-
of the activity. rence of the National Science Founda-
(b) If EPA recommends an IEE and tion. If such a notice is required, EPA
one is prepared and submitted within will provide it within fifteen (15) days
128
of receiving the final IEE from the op- of existing activities and other known
erator or, if the operator does not pro- planned activities;
vide a final IEE, within sixty (60) days (7) Identification of measures, includ-
following EPA’s comments on the ing monitoring programs, that could be
original IEE. If EPA does not provide taken to minimize or mitigate impacts
notice within these time limits, the op- of the proposed activity and to detect
erator will be deemed to have met the unforeseen impacts and that could pro-
requirements of this part provided that vide early warning of any adverse ef-
any required procedures, which may in- fects of the activity as well as to deal
clude appropriate monitoring, are put promptly and effectively with acci-
in place to assess and verify the impact dents;
of the activity. (8) Identification of unavoidable im-
(2) If a CEE is required, the operator pacts of the proposed activity;
must adhere to the time limits applica- (9) Consideration of the effects of the
ble to such documentation. (See: 40 proposed activity on the conduct of sci-
CFR 8.8.) In this event EPA, at the op- entific research and on other existing
erator’s request, will consult with the uses and values;
operator regarding possible changes in (10) An identification of gaps in
the proposed activity which would knowledge and uncertainties encoun-
allow preparation of an IEE. tered in compiling the information re-
quired under this section;
§ 8.8 Comprehensive environmental
evaluation. (11) A non-technical summary of the
information provided under this sec-
(a) Preparation of a CEE. Unless a tion; and
PERM or an IEE has been submitted (12) The name and address of the per-
and determined to meet the environ- son or organization which prepared the
mental documentation requirements of CEE and the address to which com-
this part, the operator shall prepare a ments thereon should be directed.
CEE. A CEE shall contain sufficient in- (b) Submission of Draft CEE to the EPA
formation to enable informed consider- and Circulation to Other Parties. (1) For
ation of the reasonably foreseeable po- the 1998–1999, 1999–2000, and 2000–2001
tential environmental effects of a pro- austral seasons, any operator who
posed activity and possible alter- plans a nongovernmental expedition
natives to that proposed activity. A
which would require a CEE must sub-
CEE shall include the following:
mit a draft of the CEE by December 1,
(1) A description of the proposed ac- 1997, December 1, 1998, and December 1,
tivity, including its purpose, location, 1999, respectively. Within fifteen (15)
duration and intensity, and possible al- days of receipt of the draft CEE, EPA
ternatives to the activity, including will: send it to the Department of
the alternative of not proceeding, and State which will circulate it to all Par-
the consequences of those alternatives; ties to the Protocol and forward it to
(2) A description of the initial envi- the Committee for Environmental Pro-
ronmental reference state with which tection established by the Protocol,
predicted changes are to be compared and publish notice of receipt of the
and a prediction of the future environ- CEE and request for comments on the
mental reference state in the absence CEE in the FEDERAL REGISTER, and will
of the proposed activity; provide copies to any person upon re-
(3) A description of the methods and quest. The EPA will accept public com-
data used to forecast the impacts of ments on the CEE for a period of nine-
the proposed activity; ty (90) days following notice in the
(4) Estimation of the nature, extent, FEDERAL REGISTER. The EPA, in con-
duration and intensity of the likely di- sultation with other interested Federal
rect impacts of the proposed activity; agencies, will evaluate the CEE to de-
(5) A consideration of possible indi- termine if the CEE meets the require-
rect or second order impacts from the ments under Article 8 and Annex I to
proposed activity; the Protocol and the provisions of this
(6) A consideration of cumulative im- part and will transmit its comments to
pacts of the proposed activity in light the operator within 120 days following
129
§ 8.9 40 CFR Ch. I (7–1–00 Edition)
publication in the FEDERAL REGISTER tection, provided that no expedition

of the notice of availability of the CEE. need be delayed through the operation
(2) The operator shall send a final of paragraph 5 of Article 3 to Annex I
CEE to EPA at least seventy-five (75) of the Protocol for longer than 15
days before commencement of the pro- months from the date of circulation of
posed activity in the Antarctic Treaty the draft CEE.
area. The CEE must include (or sum- (c) Decisions based on CEE. The deci-
marize) any comments on the draft sion to proceed, based on environ-
CEE received from EPA, the public, mental documentation that meets the
and the Parties, including comments requirements under Article 8 and
offered at the XXII Antarctic Treaty Annex I to the Protocol and the provi-
Consultative Meeting in 1998, the XXIII sions of this part, rests with the oper-
Antarctic Treaty Consultative Meeting ator. Any decision by an operator on
in 1999, and the XXIV Antarctic Treaty whether to proceed with or modify a
Consultative Meeting in 2000 for CEEs proposed activity for which a CEE was
submitted for the 1998–1999, 1999–2000, required shall be based on the CEE and
and 2000–2001 austral seasons, respec- other relevant considerations.
tively. Following the final response [62 FR 23545, Apr. 30, 1997, as amended at 63
from the operator, the EPA will inform FR 18326, Apr. 15, 1998]
the operator if EPA, with the concur-
rence of the National Science Founda- § 8.9 Measures to assess and verify en-
tion, makes the finding that the envi- vironmental impacts.
ronmental documentation submitted (a) The operator shall conduct appro-
does not meet the requirements of Ar- priate monitoring of key environ-
ticle 8 and Annex I of the Protocol and mental indicators as proposed in the
the provisions of this part. This notifi- CEE to assess and verify the potential
cation will occur within fifteen (15) environmental impacts of activities
days of submittal of the final CEE by which are the subject of a CEE. The op-
the operator if the final CEE is sub- erator may also need to carry out mon-
mitted by the operator within the time itoring in order to assess and verify the
limits set out in this section. If no impact of an activity for which an IEE
final CEE is submitted or the operator has been prepared.
fails to meet these time limits, EPA (b) All proposed activities for which
will provide such notification sixty (60) an IEE or CEE has been prepared shall
days prior to departure of the expedi- include procedures designed to provide
tion. If EPA does not provide such no- a regular and verifiable record of the
tice, the operator will be deemed to impacts of these activities, in order,
have met the requirements of this part inter alia, to:
provided that procedures, which in- (1) Enable assessments to be made of
clude appropriate monitoring, are put the extent to which such impacts are
in place to assess and verify the impact consistent with the Protocol; and
of the activity. The EPA will transmit (2) Provide information useful for
the CEE, along with a notice of any de- minimizing and mitigating those im-
cisions by the operator relating there- pacts, and, where appropriate, informa-
to, to the Department of State which tion on the need for suspension, can-
shall circulate it to all Parties no later cellation, or modification of the activ-
than sixty (60) days before commence- ity.
ment of the proposed activity in the
Antarctic Treaty area. The EPA will § 8.10 Cases of emergency.
also publish a notice of availability of This part shall not apply to activities
the final CEE in the FEDERAL REG- taken in cases of emergency relating to
ISTER. the safety of human life or of ships,
(3) No final decision shall be taken to aircraft, equipment and facilities of
proceed with any activity for which a high value, or the protection of the en-
CEE is prepared unless there has been vironment, which require an activity
an opportunity for consideration of the to be undertaken without completion
draft CEE by the Antarctic Treaty of the procedures set out in this part.
Consultative Meeting on the advice of Notice of any such activities which
the Committee for Environmental Pro- would have otherwise required the
130
preparation of a CEE shall be provided terested Federal agencies. The Depart-

within fifteen (15) days to the Depart- ment of State shall make a copy of
ment of State, as provided below, for these descriptions available upon re-
circulation to all Parties to the Pro- quest to the public.
tocol and to the Committee on Envi- (d) Upon receipt from another Party
ronmental Protection, and a full expla- of significant information obtained,
nation of the activities carried out and any action taken in consequence
shall be provided within forty-five (45) therefrom from procedures put in place
days of those activities. Notification with regard to monitoring pursuant to
shall be provided to: The Director, The Articles 2(2) and 5 of Annex I to the
Office of Oceans Affairs, OES/OA, Room Protocol, the Department of State
5805, Department of State, 2201 C shall circulate a copy to all interested
Street, NW, Washington, DC 20520–7818. Federal agencies. The Department of
State shall make a copy of this infor-
§ 8.11 Prohibited acts, enforcement mation available upon request to the
and penalties. public.
(a) It shall be unlawful for any oper- (e) Upon receipt from another Party
ator to violate this part. of a final CEE, the Department of
(b) An operator who violates any of State shall circulate a copy to all in-
this part is subject to enforcement, terested Federal agencies. The Depart-
which may include civil and criminal ment of State shall make a copy avail-
enforcement proceedings, and pen- able upon request to the public.
alties, pursuant to sections 7, 8, and 9
of the Antarctic Conservation Act, as PART 9—OMB APPROVALS UNDER
amended by the Act; 16 U.S.C. 2407, THE PAPERWORK REDUCTION ACT
2408, 2409, and 45 CFR part 672.
§ 8.12 Coordination of reviews from AUTHORITY: 7 U.S.C. 135 et seq., 136–136y; 15

other Parties. U.S.C. 2001, 2003, 2005, 2006, 2601–2671; 21
U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 U.S.C.
(a) Upon receipt of a draft CEE from 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326,
another Party, the Department of 1330, 1342, 1344, 1345 (d) and (e), 1361; E.O.
State shall publish notice in the FED- 11735, 38 FR 21243, 3 CFR, 1971–1975 Comp. p.
ERAL REGISTER and shall circulate a 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g,
copy of the CEE to all interested Fed- 300g–1, 300g–2, 300g–3, 300g–4, 300g–5, 300g–6,
300j–1, 300j–2, 300j–3, 300j–4, 300j–9, 1857 et seq.,
eral agencies. The Department of State 6901–6992k, 7401–7671q, 7542, 9601–9657, 11023,
shall coordinate responses from Fed- 11048.
eral agencies to the CEE and shall
transmit the coordinated response to § 9.1 OMB approvals under the Paper-
the Party which has circulated the work Reduction Act.
CEE. The Department of State shall This part consolidates the display of
make a copy of the CEE available upon control numbers assigned to collec-
request to the public. tions of information in certain EPA
(b) Upon receipt of the annual list of regulations by the Office of Manage-
IEEs from another Party prepared in ment and Budget (OMB) under the Pa-
accordance with Article 2 of Annex I perwork Reduction Act (PRA). No per-
and any decisions taken in consequence son is required to respond to an infor-
thereof, the Department of State shall mation collection request regulated by
circulate a copy to all interested Fed- the PRA unless a valid control number
eral agencies. The Department of State assigned by OMB is displayed in either
shall make a copy of the list of IEEs this part, another part of the Code of
prepared in accordance with Article 2 Federal Regulations, a valid FEDERAL
and any decisions taken in consequence REGISTER notice, or by other appro-
thereof available upon request to the priate means.
public.
OMB control
(c) Upon receipt of a description of 40 CFR citation No.
appropriate national procedures for en-
vironmental impact statements from Public Information
another Party, the Department of Part 2, subpart B ........................................... 2050–0143
State shall circulate a copy to all in-
131
§ 9.1 40 CFR Ch. I (7–1–00 Edition)
OMB control OMB control

40 CFR citation 40 CFR citation
No. No.
Environmental Impact Assessment of Nongovernmental 35.6155(a), (c) ............................................... 2030–0038

Activities in Antarctica 35.6230(a), (c) ............................................... 2030–0038
35.6300(a)(3) ................................................. 2030–0038
8.5–8.10 ......................................................... 2020–0007 35.6315(c) ...................................................... 2030–0038
35.6320 .......................................................... 2030–0038
General Regulation for Assistance Programs for Other
35.6340(a) ...................................................... 2030–0038
than State and Local Governments
35.6350 .......................................................... 2030–0038
30.400 ............................................................ 2030–0020 35.6500 .......................................................... 2030–0038
30.500 ............................................................ 2030–0020 35.6550(a)(1)(ii) ............................................. 2030–0038
30.501 ............................................................ 2030–0020 35.6550(b)(1)(iii) ............................................ 2030–0038
30.503 ............................................................ 2030–0020 35.6550(b)(2)(i) .............................................. 2030–0038
30.505 ............................................................ 2030–0020 35.6585 .......................................................... 2030–0038
30.510 ............................................................ 2030–0020 35.6595(a), (b) ............................................... 2030–0038
30.520 ............................................................ 2030–0020 35.6600(a) ...................................................... 2030–0038
30.530 ............................................................ 2030–0020 35.6650 .......................................................... 2030–0038
30.531 ............................................................ 2030–0020 35.6655 .......................................................... 2030–0038
30.532 ............................................................ 2030–0020 35.6660 .......................................................... 2030–0038
30.535 ............................................................ 2030–0020 35.6665(a), (b) ............................................... 2030–0038
30.1002 .......................................................... 2030–0020 35.6700 .......................................................... 2030–0038
30.1003 .......................................................... 2030–0020 35.6705 .......................................................... 2030–0038
30.1200 .......................................................... 2030–0020 35.6710 .......................................................... 2030–0038
35.6805 .......................................................... 2030–0038
Uniform Administrative Requirements for Grants and Co-
operative Agreements to State and Local Governments 35.6815(a), (c), (d) ......................................... 2030–0038
35.9000–35.9070 ........................................... 2040–0138
31.10 .............................................................. 2030–0020
31.20–31.21 ................................................... 2030–0020 Indian Tribes: Air Quality Planning and Management
31.31–31.32 ................................................... 2030–0020
31.36(g)–31.36(h) .......................................... 2030–0020 49.6 ................................................................ 2060–0306
31.40 .............................................................. 2030–0020 49.7 ................................................................ 2060–0306
31.42 .............................................................. 2030–0020
31.6 ................................................................ 2030–0020 Requirements for Preparation, Adoption, and Submittal of
Implementation Plans
Procurement Under Assistance Agreements
51.160–51.166 ............................................... 2060–0003
33.110 ............................................................ 2030–0003 51.321–51.323 ............................................... 2060–0088
33.211 ............................................................ 2030–0003 51.353–51.354 ............................................... 2060–0252
51.365–51.366 ............................................... 2060–0252
State and Local Assistance 51.370–51.371 ............................................... 2060–0252
51.850–51.860 ............................................... 2060–0279
35.2015 .......................................................... 2040–0027
35.2025 .......................................................... 2040–0027 Approval and Promulgation of Implementation Plans
35.2034 .......................................................... 2040–0027
35.2040 .......................................................... 2040–0027 52.21 .............................................................. 2060–0003
35.2105–35.2107 ........................................... 2040–0027 52.741 ............................................................ 2060–0203
35.2110 .......................................................... 2040–0027
35.2114 .......................................................... 2040–0027 Outer Continental Shelf Air Regulations
35.2118 .......................................................... 2040–0027
35.2120 .......................................................... 2040–0027 55.4–55.8 ....................................................... 2060–0249
35.2127 .......................................................... 2040–0027 55.11–55.14 ................................................... 2060–0249
35.2130 .......................................................... 2040–0027
35.2140 .......................................................... 2040–0027 Ambient Air Quality Surveillance
35.2211–35.2212 ........................................... 2040–0027
35.2215–35.2216 ........................................... 2040–0027 58.11–58.14 ................................................... 2060–0084
35.2218 .......................................................... 2040–0027
58.20–58.23 ................................................... 2060–0084
35.3010 .......................................................... 2040–0095
58.25–58.28 ................................................... 2060–0084
35.3030 .......................................................... 2040–0095
35.3130 .......................................................... 2040–0118 58.30–58.31 ................................................... 2060–0084
35.3135 .......................................................... 2040–0118 58.33 .............................................................. 2060–0084
35.3140 .......................................................... 2040–0118 58.35 .............................................................. 2060–0084
35.3145 .......................................................... 2040–0118 58.40–58.41 ................................................... 2060–0084
35.3150 .......................................................... 2040–0118 58.43 .............................................................. 2060–0084
35.3155 .......................................................... 2040–0118 58.45 .............................................................. 2060–0084
35.3160 .......................................................... 2040–0118 58.50 .............................................................. 2060–0084
35.3165 .......................................................... 2040–0118
35.3170 .......................................................... 2040–0118 National Volatile Organic Compound Emission Standards
35.6055(a)(2) ................................................. 2030–0038 for Consumer and Commercial Products
35.6055(b)(1) ................................................. 2030–0038
35.6055(b)(2)(i)–(ii) ........................................ 2030–0038 59.105 ............................................................ 2060–0353
35.6105(a)(2)(i)–(v), (vii) ................................ 2030–0038 59.405 ............................................................ 2060–0393
35.6110(b)(2) ................................................. 2030–0038 59.407 ............................................................ 2060–0393
35.6120 .......................................................... 2030–0038 59.408 ............................................................ 2060–0393
35.6145 .......................................................... 2030–0038
132

No. No.
National Volatile Organic Compound Emission Standards 60.538–60.539 ............................................... 2060–0161

for Consumer Products 60.543(b)(2)–(4), (c)–(n) ................................ 2060–0156
60.544 ............................................................ 2060–0156
59.209 ............................................................ 2060–0348 60.545(a)–(d), (f) ............................................ 2060–0156
60.546(a)–(e), (f)(4)–(6), (g)–(j) ..................... 2060–0156
Standards of Performance for New Stationary Sources 1 60.547 ............................................................ 2060–0156
60.562–1 ........................................................ 2060–0145
60.7(d) ............................................................ 2060–0207 60.562–2 ........................................................ 2060–0145
60.35c ............................................................ 2060–0220 60.563–60.565 ............................................... 2060–0145
60.45–60.47 ................................................... 2060–0026 60.580 ............................................................ 2060–0073
60.46a–60.49a ............................................... 2060–0023 60.583–60.585 ............................................... 2060–0073
60.40b ............................................................ 2060–0072 60.592–60.593 ............................................... 2060–0067
60.42b ............................................................ 2060–0072 60.603–60.604 ............................................... 2060–0059
60.44b–60.49b ............................................... 2060–0072 60.613–60.615 ............................................... 2060–0197
60.42c ............................................................ 2060–0202 60.622 ............................................................ 2060–0079
60.44c–60.48c ............................................... 2060–0202 60.624–60.625 ............................................... 2060–0079
60.53–60.54 ................................................... 2060–0040 60.632–60.636 ............................................... 2060–0120
60.50a ............................................................ 2060–0210 60.640 ............................................................ 2060–0120
60.56a–60.59a ............................................... 2060–0210 60.642–60.644 ............................................... 2060–0120
60.63–60.65 ................................................... 2060–0025 60.646–60.647 ............................................... 2060–0120
60.73–60.74 ................................................... 2060–0019 60.663–60.665 ............................................... 2060–0197
60.84–60.85 ................................................... 2060–0041 60.670 ............................................................ 2060–0050
60.93 .............................................................. 2060–0083 60.672 ............................................................ 2060–0050
60.104–60.108 ............................................... 2060–0022 60.674–60.676 ............................................... 2060–0050
60.113a–60.115a ........................................... 2060–0121 60.683–60.685 ............................................... 2060–0114
60.113b–60.116b ........................................... 2060–0074 60.692–1 ........................................................ 2060–0172
60.123 ............................................................ 2060–0080 60.692–2 ........................................................ 2060–0172
60.133 ............................................................ 2060–0110 60.692–3 ........................................................ 2060–0172
60.142–60.144 ............................................... 2060–0029 60.692–4 ........................................................ 2060–0172
60.143a–60.145a ........................................... 2060–0029 60.692–5 ........................................................ 2060–0172
60.153–60.155 ............................................... 2060–0035 60.693–1 ........................................................ 2060–0172
60.192(b) ........................................................ 2060–0031 60.693–2 ........................................................ 2060–0172
60.194–60.195 ............................................... 2060–0031 60.695–60.698 ............................................... 2060–0172
60.203–60.204 ............................................... 2060–0037 60.703–60.705 ............................................... 2060–0269
60.213–60.214 ............................................... 2060–0037 60.710 ............................................................ 2060–0171
60.223–60.224 ............................................... 2060–0037 60.713–60.717 ............................................... 2060–0171
60.233–60.234 ............................................... 2060–0037 60.722–60.725 ............................................... 2060–0162
60.243–60.244 ............................................... 2060–0037 60.734–60.736 ............................................... 2060–0251
60.253–60.254 ............................................... 2060–0122 60.740 ............................................................ 2060–0181
60.273–60.276 ............................................... 2060–0038 60.743–60.747 ............................................... 2060–0181
60.273a–60.276a ........................................... 2060–0038 60.757 ............................................................ 2060–0220
60.284–60.286 ............................................... 2060–0021 60.758 ............................................................ 2060–0220
60.292–60.293 ............................................... 2060–0054
60.296 ............................................................ 2060–0054 National Emission Standards for Hazardous Air
60.303 ............................................................ 2060–0082 Pollutants 2
60.310 ............................................................ 2060–0106
60.313–60.316 ............................................... 2060–0106 61.24–61.25 ................................................... 2060–0191
60.334–60.335 ............................................... 2060–0028 61.32–61.34 ................................................... 2060–0092
60.343–60.344 ............................................... 2060–0063 61.53–61.55 ................................................... 2060–0097
60.373–60.374 ............................................... 2060–0081 61.65(b)–(d) ................................................... 2060–0071
60.384–60.386 ............................................... 2060–0016 61.67–61.71 ................................................... 2060–0071
60.393–60.396 ............................................... 2060–0034 61.93–61.95 ................................................... 2060–0191
60.398 ............................................................ 2060–0034 61.103–61.105 ............................................... 2060–0191
60.403–60.404 ............................................... 2060–0111 61.107 ............................................................ 2060–0191
60.433–60.435 ............................................... 2060–0105 61.123–61.124 ............................................... 2060–0191
60.443–60.447 ............................................... 2060–0004 61.126 ............................................................ 2060–0191
60.453–60.456 ............................................... 2060–0108 61.132–61.133 ............................................... 2060–0185
60.463–60.466 ............................................... 2060–0107 61.135–61.139 ............................................... 2060–0185
60.473–60.474 ............................................... 2060–0002 61.142 ............................................................ 2060–0101
60.482–2 ........................................................ 2060–0012 61.144–61.147 ............................................... 2060–0101
60.482–3 ........................................................ 2060–0012 61.149 ............................................................ 2060–0101
60.482–4 ........................................................ 2060–0012 61.150–61.155 ............................................... 2060–0101
60.482–7 ........................................................ 2060–0012 61.163–61.165 ............................................... 2060–0043
60.482–8 ........................................................ 2060–0012 61.203 ............................................................ 2060–0191
60.482–10 ...................................................... 2060–0012 61.206–61.209 ............................................... 2060–0191
60.483–1 ........................................................ 2060–0012 61.223–61.224 ............................................... 2060–0191
60.483–2 ........................................................ 2060–0012 61.242–1 ........................................................ 2060–0068
60.484–60.487 ............................................... 2060–0012 61.242–2 ........................................................ 2060–0068
60.493–60.496 ............................................... 2060–0001 61.242–3 ........................................................ 2060–0068
60.502–60.503 ............................................... 2060–0006 61.242–4 ........................................................ 2060–0068
60.505 ............................................................ 2060–0006 61.242–7 ........................................................ 2060–0068
60.530–60.536 ............................................... 2060–0161 61.242–8 ........................................................ 2060–0068
60.537(a)(1)–(2), (a)(4)–(5), (b)–(i) ................ 2060–0161 61.242–10 ...................................................... 2060–0068
133
§ 9.1 40 CFR Ch. I (7–1–00 Edition)

No. No.
61.242–11 ...................................................... 2060–0068 63.1387 .......................................................... 2060–0359

61.243–1 ........................................................ 2060–0068 63.1420–63.1439 ........................................... 2060–0415
61.243–2 ........................................................ 2060–0068 63.1620–63.1679 ........................................... 2060–0391
61.244–61.247 ............................................... 2060–0068
61.253–61.255 ............................................... 2060–0191 Chemical Accident Prevention Provisions
61.271–61.276 ............................................... 2060–0185
61.300 ............................................................ 2060–0182 68.12 .............................................................. 2050–0144
61.302–61.305 ............................................... 2060–0182 68.15 .............................................................. 2050–0144
61.342 ............................................................ 2060–0183 68.39 .............................................................. 2050–0144
61.344–61.349 ............................................... 2060–0183 68.42 .............................................................. 2050–0144
61.354–61.357 ............................................... 2060–0183 68.48 .............................................................. 2050–0144
68.50 .............................................................. 2050–0144
Approval and Promulgation of State Plans for Designated 68.52 .............................................................. 2050–0144
Facilities and Pollutants 68.56 .............................................................. 2050–0144
68.58 .............................................................. 2050–0144
62.14355 ........................................................ 2060–0430 68.60 .............................................................. 2050–0144
68.65 .............................................................. 2050–0144
National Emission Standards for Hazardous Air Pollutants 68.67 .............................................................. 2050–0144
for Source Categories 3 68.69 .............................................................. 2050–0144
63.5(d) ............................................................ 2060–0330 68.71 .............................................................. 2050–0144
63.52–63.56 ................................................... 2060–0266 68.73 .............................................................. 2050–0144
63.72 .............................................................. 2060–0222 68.75 .............................................................. 2050–0144
63.74–63.79 ................................................... 2060–0222 68.79 .............................................................. 2050–0144
63.91–63.96 ................................................... 2060–0264 68.81 .............................................................. 2050–0144
63.103 ............................................................ 2060–0282 68.83 .............................................................. 2050–0144
63.105 ............................................................ 2060–0282 68.85 .............................................................. 2050–0144
63.117–63.118 ............................................... 2060–0282 68.95 .............................................................. 2050–0144
63.122–63.123 ............................................... 2060–0282 68.120(a), (e), and (g) ................................... 2050–0144
63.129–63.130 ............................................... 2060–0282 68.150 ............................................................ 2050–0144
63.146–63.148 ............................................... 2060–0282 68.155 ............................................................ 2050–0144
63.151–63.152 ............................................... 2060–0282 68.160 ............................................................ 2050–0144
63.181–63.182 ............................................... 2060–0282 68.165 ............................................................ 2050–0144
63.302–63.311 ............................................... 2060–0253 68.168 ............................................................ 2050–0144
63.322–63.325 ............................................... 2060–0234 68.170 ............................................................ 2050–0144
63.345–63.347 ............................................... 2060–0327 68.175 ............................................................ 2050–0144
63.363–63.367 ............................................... 2060–0283 68.180 ............................................................ 2050–0144
63.403–63.406 ............................................... 2060–0268 68.185 ............................................................ 2050–0144
63.420 ............................................................ 2060–0325 68.190 ............................................................ 2050–0144
63.422–63.428 ............................................... 2060–0325 68.200 ............................................................ 2050–0144
63.467–63.468 ............................................... 2060–0273 68.215 ............................................................ 2050–0144
63.480–63.506 ............................................... 2060–0356 68.220 ............................................................ 2050–0144
63.525–63.528 ............................................... 2060–0290
State Operating Permit Programs
63.548–63.550 ............................................... 2060–0296
63.563–63.567 ............................................... 2060–0289
70.3–70.11 ..................................................... 2060–0243
63.602–63.603 ............................................... 2060–0361
63.605–63.608 ............................................... 2060–0361 Federal Operating Permit Programs
63.625–63.628 ............................................... 2060–0361
63.630 ............................................................ 2060–0361 71.5 ................................................................ 2060–0336
63.653 ............................................................ 2060–0340 71.6(a),(c),(d),(g) ............................................ 2060–0336
63.654 ............................................................ 2060–0340 71.7 ................................................................ 2060–0336
63.703–63.707 ............................................... 2060–0326 71.9(e)–(j) ...................................................... 2060–0336
63.752–63.753 ............................................... 2060–0314 71.24–71.26 ................................................... 2060–0276
63.787(a)–(b) ................................................. 2060–0330
63.788(a)–(c) ................................................. 2060–0330 Permits Regulation
63.806–63.807 ............................................... 2060–0324
63.829–63.830 ............................................... 2060–0335 72.7–72.10 ..................................................... 2060–0258
63.846(d) ........................................................ 2060–0360 72.14 .............................................................. 2060–0258
63.847(b), (g) ................................................. 2060–0360 72.20–72.25 ................................................... 2060–0258
63.848(d)(5), (e), (f)(5)(ii), (g), (k), (m) .......... 2060–0360 72.30–72.33 ................................................... 2060–0258
63.850 ............................................................ 2060–0360 72.40–72.44 ................................................... 2060–0258
63.1178—63.1194 ......................................... 2060–0362 72.50–72.51 ................................................... 2060–0258
63.1259–63.1260 ........................................... 2060–0314 72.60–72.69 ................................................... 2060–0258
63.1290—63.1309 ......................................... 2060–0357 72.70–72.74 ................................................... 2060–0258
63.1311 .......................................................... 2060–0351 72.80–72.85 ................................................... 2060–0258
63.1314 .......................................................... 2060–0351 72.90–72.96 ................................................... 2060–0258
63.1315 .......................................................... 2060–0351
63.1319 .......................................................... 2060–0351 Allowance System
63.1320 .......................................................... 2060–0351
63.1325–63.1332 ........................................... 2060–0351 73.10–73.13 ................................................... 2060–0261
63.1335 .......................................................... 2060–0351 73.16 .............................................................. 2060–0261
63.1367–63.1368 ........................................... 2060–0370 73.18–73.21 ................................................... 2060–0261
63.1383 .......................................................... 2060–0359 73.30–73.38 ................................................... 2060–0258
63.1386 .......................................................... 2060–0359 73.50–73.53 ................................................... 2060–0258
134

No. No.
73.70–73.77 ................................................... 2060–0221 80.157 ............................................................ 2060–0275

73.80–73.86 ................................................... 2060–0258 80.158 ............................................................ 2060–0275
73.90 .............................................................. 2060–0258 80.160 ............................................................ 2060–0275
80.161 ............................................................ 2060–0275
Sulfur Dioxide Opt-ins 80.162 ............................................................ 2060–0275
80.163(d)(3) ................................................... 2060–0275
74.12 .............................................................. 2060–0258 80.164 ............................................................ 2060–0275
74.14 .............................................................. 2060–0258 80.165 ............................................................ 2060–0275
74.16 .............................................................. 2060–0258 80.166 ............................................................ 2060–0275
74.18 .............................................................. 2060–0258 80.167(d) ........................................................ 2060–0275
74.20 .............................................................. 2060–0258 80.170 ............................................................ 2060–0275
74.22 .............................................................. 2060–0258 80.171 ............................................................ 2060–0275
74.24–74.25 ................................................... 2060–0258 80.173 ............................................................ 2060–0275
74.41 .............................................................. 2060–0258
74.43–74.44 ................................................... 2060–0258 Protection of Stratospheric Ozone
74.46–74.47 ................................................... 2060–0258
74.60–74.64 ................................................... 2060–0258 82.9–82.13 ..................................................... 2060–0170
82.21 .............................................................. 2060–0170
Continuous Emission Monitoring 82.36 .............................................................. 2060–0247
82.38 .............................................................. 2060–0247
75.4–75.5 ....................................................... 2060–0258 82.40 .............................................................. 2060–0247
75.10–75.18 ................................................... 2060–0258 82.42 .............................................................. 2060–0247
75.20–75.24 ................................................... 2060–0258 82.122 ............................................................ 2060–0259
75.30–75.34 ................................................... 2060–0258 82.156 ............................................................ 2060–0256
75.40–75.48 ................................................... 2060–0258 82.160–82.162 ............................................... 2060–0256
75.50–75.52 ................................................... 2060–0258 82.164 ............................................................ 2060–0256
75.53–75.56 ................................................... 2060–0258 82.166 ............................................................ 2060–0256
75.60–75.67 ................................................... 2060–0258 82.176(a) ........................................................ 2060–0226
82.176(c)(3) ................................................... 2060–0226
Nitrogen Oxides Emission Reduction Program 82.178 ............................................................ 2060–0226
82.180 ............................................................ 2060–0350
76.8–76.15 ..................................................... 2060–0258 82.180(a)(5) ................................................... 2060–0226
82.180(b)(3) ................................................... 2060–0226
Excess Emissions 82.184(c) ........................................................ 2060–0226
82.184(e) ........................................................ 2060–0226
77.3–77.6 ....................................................... 2060–0258
Control of Air Pollution From Motor Vehicles and Motor
Appeal Procedures for Acid Rain Program Vehicle Engines
78.1–78.20 ..................................................... 2060–0258 85.503 ............................................................ 2060–0104
85.505 ............................................................ 2060–0104
Registration of Fuels and Fuel Additives 85.1403 .......................................................... 2060–0302
85.1404 .......................................................... 2060–0302
79.10–79.11 ................................................... 2060–0150
85.1406 .......................................................... 2060–0302
79.20–79.21 ................................................... 2060–0150
85.1407 .......................................................... 2060–0302
79.31–79.33 ................................................... 2060–0150
85.1408 .......................................................... 2060–0302
79.51(a), (c), (d), (g), (h) ............................... 2060–0150
85.1409 .......................................................... 2060–0302
79.52 .............................................................. 2060–0150 85.1410 .......................................................... 2060–0302
79.57(a)(5) ..................................................... 2060–0150 85.1411 .......................................................... 2060–0302
79.57(f)(5) ...................................................... 2060–0150 85.1412 .......................................................... 2060–0302
79.58(e) .......................................................... 2060–0150 85.1413 .......................................................... 2060–0302
79.59(b)–(d) ................................................... 2060–0150 85.1414 .......................................................... 2060–0302
79.60 .............................................................. 2060–0150 85.1415 .......................................................... 2060–0302
79.61(e) .......................................................... 2060–0150 85.1503–85.1507 ........................................... 2060–0095
79.62–79.68 ................................................... 2060–0297 85.1509–85.1510 ........................................... 2060–0095
85.1511(b)–(d), (f) .......................................... 2060–0095
Regulation of Fuels and Fuel Additives 85.1511(b)(3) ................................................. 2060–0007
85.1512 .......................................................... 2060–0095
80.20 .............................................................. 2060–0066 85.1514–85.1515 ........................................... 2060–0095
80.25 .............................................................. 2060–0066 85.1703 .......................................................... 2060–0124
80.27 .............................................................. 2060–0178 85.1705–85.1706 ........................................... 2060–0007
80.29(c) .......................................................... 2060–0308 85.1901–85.1909 ........................................... 2060–0048
80.40 .............................................................. 2060–0277 85.2112–85.2123 ........................................... 2060–0065
80.46 .............................................................. 2060–0277 85.2114 .......................................................... 2060–0016
80.65 .............................................................. 2060–0277 85.2115 .......................................................... 2060–0016
80.68–80.69 ................................................... 2060–0277
80.74–80.77 ................................................... 2060–0277 Control of Air Pollution From New and In-Use Motor Ve-
80.79 .............................................................. 2060–0277 hicles and New and In-Use Motor Vehicle Engines:
80.83 .............................................................. 2060–0277 Certification and Test Procedures
80.91–80.93 ................................................... 2060–0277
80.101–80.106 ............................................... 2060–0277 86.000–7 ........................................................ 2060–0104
80.125 ............................................................ 2060–0277 86.000–8 ........................................................ 2060–0104
80.127–80.130 ............................................... 2060–0277 86.000–9 ........................................................ 2060–0104
80.141(c)–(f) .................................................. 2060–0275 86.000–21 ...................................................... 2060–0104
135
§ 9.1 40 CFR Ch. I (7–1–00 Edition)

No. No.
86.000–23 ...................................................... 2060–0104 86.099–9 ........................................................ 2060–0104

86.000–24 ...................................................... 2060–0104 86.099–10 ...................................................... 2060–0104
86.000–25 ...................................................... 2060–0104 86.108–00 ...................................................... 2060–0104
86.000–26 ...................................................... 2060–0104 86.111–94 ...................................................... 2060–0104
86.000–28 ...................................................... 2060–0104 86.113–82 ...................................................... 2060–0104
86.001–9 ........................................................ 2060–0104 86.113–87 ...................................................... 2060–0104
86.001–21 ...................................................... 2060–0104 86.113–90 ...................................................... 2060–0104
86.001–23 ...................................................... 2060–0104 86.113–91 ...................................................... 2060–0104
86.001–24 ...................................................... 2060–0104 86.113–94 ...................................................... 2060–0104
86.001–25 ...................................................... 2060–0104 86.129–00 ...................................................... 2060–0104
86.001–26 ...................................................... 2060–0104 86.135–82 ...................................................... 2060–0104
86.001–28 ...................................................... 2060–0104 86.135–90 ...................................................... 2060–0104
86.004–9 ........................................................ 2060–0104 86.135–94 ...................................................... 2060–0104
86.004–28 ...................................................... 2060–0104 86.142–90 ...................................................... 2060–0104
86.004–38 ...................................................... 2060–0104 86.144–90 ...................................................... 2060–0104
86.004–40 ...................................................... 2060–0104 86.144–94 ...................................................... 2060–0104
86.079–31—86.079–33 ................................. 2060–0104 86.150–98 ...................................................... 2060–0104
86.079–36 ...................................................... 2060–0104 86.159–00 ...................................................... 2060–0104
86.079–39 ...................................................... 2060–0104 86.160–00 ...................................................... 2060–0104
86.080–12 ...................................................... 2060–0104 86.161–00 ...................................................... 2060–0104
86.082–34 ...................................................... 2060–0104 86.162–00 ...................................................... 2060–0104
86.085–13 ...................................................... 2060–0104 86.162–03 ...................................................... 2060–0104
86.085–37 ...................................................... 2060–0104 86.163–00 ...................................................... 2060–0104
86.087–38 ...................................................... 2060–0104 86.336–79 ...................................................... 2060–0104
86.090–14 ...................................................... 2060–0104 86.337–79 ...................................................... 2060–0104
86.090–21 ...................................................... 2060–0104 86.412–78 ...................................................... 2060–0104
86.090–25 ...................................................... 2060–0104 86.414–78 ...................................................... 2060–0104
86.090–26 ...................................................... 2060–0104 86.415–78 ...................................................... 2060–0104
86.090–27 ...................................................... 2060–0104 86.416–80 ...................................................... 2060–0104
86.091–7 ........................................................ 2060–0104 86.421–78 ...................................................... 2060–0104
86.091–15 ...................................................... 2060–0104 86.423–78 ...................................................... 2060–0104
86.091–21 ...................................................... 2060–0104 86.427–78 ...................................................... 2060–0104
86.091–23 ...................................................... 2060–0104 86.428–80 ...................................................... 2060–0104
86.091–28 ...................................................... 2060–0104 86.429–78 ...................................................... 2060–0104
86.091–30 ...................................................... 2060–0104 86.431–78 ...................................................... 2060–0104
86.092–14 ...................................................... 2060–0104 86.432–78 ...................................................... 2060–0104
86.092–15 ...................................................... 2060–0104 86.434–78 ...................................................... 2060–0104
86.092–23 ...................................................... 2060–0104 86.435–78 ...................................................... 2060–0104
86.092–24 ...................................................... 2060–0104 86.436–78 ...................................................... 2060–0104
86.092–26 ...................................................... 2060–0104 86.437–78 ...................................................... 2060–0104
86.092–35 ...................................................... 2060–0104 86.438–78 ...................................................... 2060–0104
86.094–7–86.094–9 ....................................... 2060–0104 86.439–78 ...................................................... 2060–0104
86.094–15–86.094–16 ................................... 2060–0104 86.440–78 ...................................................... 2060–0104
86.094–17 ...................................................... 2060–0104 86.513–94 ...................................................... 2060–0104
86.094–18 ...................................................... 2060–0104 86.537–90 ...................................................... 2060–0104
86.094–21 ...................................................... 2060–0104 86.542–90 ...................................................... 2060–0104
86.094–23 ...................................................... 2060–0104 86.603–88 ...................................................... 2060–0064
86.094–24(a)(3)(iii) ........................................ 2060–0314 86.604–84 ...................................................... 2060–0064
86.094–25 ...................................................... 2060–0104 86.605–88 ...................................................... 2060–0064
86.094–30 ...................................................... 2060–0104 86.606–84 ...................................................... 2060–0064
86.094–35 ...................................................... 2060–0104 86.607–84 ...................................................... 2060–0064
86.095–14 ...................................................... 2060–0104 86.608–88 ...................................................... 2060–0064
86.095–23 ...................................................... 2060–0104 86.608–90 ...................................................... 2060–0064
86.095–24 ...................................................... 2060–0104 86.608–96 ...................................................... 2060–0104
86.095–26 ...................................................... 2060–0104 86.609–84 ...................................................... 2060–0064
86.095–30 ...................................................... 2060–0104 86.609–96 ...................................................... 2060–0104
86.095–35 ...................................................... 2060–0104 86.612–84 ...................................................... 2060–0064
86.094–38 ...................................................... 2060–0104 86.614–84 ...................................................... 2060–0064
86.096–7 ........................................................ 2060–0104 86.615–84 ...................................................... 2060–0064
86.096–8 ........................................................ 2060–0104 86.709–94 ...................................................... 2060–0104
86.096–9 ........................................................ 2060–0104 86.709–99 ...................................................... 2060–0104
86.096–10 ...................................................... 2060–0104 86.884–5 ........................................................ 2060–0104
86.096–14 ...................................................... 2060–0104 86.884–7 ........................................................ 2060–0104
86.096–21 ...................................................... 2060–0104 86.884–9 ........................................................ 2060–0104
86.096–23 ...................................................... 2060–0104 86.884–10 ...................................................... 2060–0104
86.096–24 ...................................................... 2060–0104 86.884–12 ...................................................... 2060–0104
86.096–26 ...................................................... 2060–0104 86.884–13 ...................................................... 2060–0104
86.096–30 ...................................................... 2060–0104 86.1003–90 .................................................... 2060–0064
86.096–35 ...................................................... 2060–0104 86.1004–84 .................................................... 2060–0064
86.097–9 ........................................................ 2060–0104 86.1005–90 .................................................... 2060–0064
86.098–23 ...................................................... 2060–0104 86.1006–84 .................................................... 2060–0064
86.098–28 ...................................................... 2060–0104 86.1007–84 .................................................... 2060–0064
86.099–8 ........................................................ 2060–0104 86.1008–90 .................................................... 2060–0064
136

No. No.
86.1008–96 .................................................... 2060–0104 86.1771 .......................................................... 2060–0345

86.1009–84 .................................................... 2060–0064 86.1776 .......................................................... 2060–0345
86.1009–96 .................................................... 2060–0104 86.1777 .......................................................... 2060–0345
86.1012–84 .................................................... 2060–0064 86.1778 .......................................................... 2060–0345
86.1014–84 .................................................... 2060–0064 86.1843–01 .................................................... 2060–0104
86.1015–87 .................................................... 2060–0064 86.1844–01 .................................................... 2060–0104
86.1106–87 .................................................... 2060–0132 86.1847–01 .................................................... 2060–0104
86.1108–87 .................................................... 2060–0132 86.2500 .......................................................... 2060–0104
86.1110–87 .................................................... 2060–0132
86.1111–87 .................................................... 2060–0104 Clean–Fuel Vehicles
86.1112–87–86.1115–87 ............................... 2060–0132
86.1213–85 .................................................... 2060–0104 88.104–94(a), (c), (e), (f), (g), (h), (i), (j), (k) 2060–0104
86.1213–87 .................................................... 2060–0104 88.105–94 ...................................................... 2060–0104
86.1242–85 .................................................... 2060–0104 88.204–94(b)(1) ............................................. 2060–0314
86.1242–90 .................................................... 2060–0104 88.204–94(c) .................................................. 2060–0314
86.1308–84 .................................................... 2060–0104 88.305–94 ...................................................... 2060–0104
86.1310–90 .................................................... 2060–0104 88.306–94(a), (b) introductory text ................ 2060–0104
86.1311–94 .................................................... 2060–0104 88.306–94(b)(1) ............................................. 2060–0314
86.1313–84 .................................................... 2060–0104 88.306–94(b)(2) ............................................. 2060–0314
86.1313–87 .................................................... 2060–0104 88.306–94(b)(4) ............................................. 2060–0314
86.1313–90 .................................................... 2060–0104 88.306–94(c) .................................................. 2060–0314
86.1313–91 .................................................... 2060–0104 88.306–94(f) ................................................... 2060–0314
86.1313–94 .................................................... 2060–0104
86.1313–98 .................................................... 2060–0104 Control of Emissions From New and In-Use Nonroad
86.1314–84 .................................................... 2060–0104 Compression-Ignition Engines
86.1316–84 .................................................... 2060–0104
86.1316–90 .................................................... 2060–0104 89.1 ................................................................ 2060–0124
86.1319–84 .................................................... 2060–0104 89.2 ................................................................ 2060–0124
86.1319–90 .................................................... 2060–0104 89.114–89.120 ............................................... 2060–0287
86.1321–84 .................................................... 2060–0104 89.122–89.127 ............................................... 2060–0287
86.1321–90 .................................................... 2060–0104 89.129 ............................................................ 2060–0287
86.1323–84 .................................................... 2060–0104 89.203–89.207 ............................................... 2060–0287
86.1327–84 .................................................... 2060–0104 89.209–89.211 ............................................... 2060–0287
86.1327–88 .................................................... 2060–0104 89.304–89.331 ............................................... 2060–0287
86.1327–90 .................................................... 2060–0104 89.404–89.424 ............................................... 2060–0287
86.1327–98 .................................................... 2060–0104 89.505–89.512 ............................................... 2060–0064
86.1332–84 .................................................... 2060–0104 89.603–89.605 ............................................... 2060–0095
86.1332–90 .................................................... 2060–0104 89.607–89.610 ............................................... 2060–0095
86.1334–84 .................................................... 2060–0104 89.611 ............................................................ 2060–0007,
86.1335–90 .................................................... 2060–0104 2060–0095
86.1336–84 .................................................... 2060–0104 89.612 ............................................................ 2060–0095
86.1340–84 .................................................... 2060–0104 89.801–89.803 ............................................... 2060–0048
86.1340–90 .................................................... 2060–0104 89.903 ............................................................ 2060–0124
86.1341–90 .................................................... 2060–0104 89.905–89.911 ............................................... 2060–0007
86.1341–98 .................................................... 2060–0104
86.1342–90 .................................................... 2060–0104 Control of Emissions From New and In-use Nonroad
86.1344–94 .................................................... 2060–0104 Engines
86.1413 .......................................................... 2060–0104
86.1427 .......................................................... 2060–0104 90.107–90.108 ............................................... 2060–0338
86.1432 .......................................................... 2060–0104 90.113 ............................................................ 2060–0338
86.1434 .......................................................... 2060–0104 90.115–90.124 ............................................... 2060–0338
86.1437 .......................................................... 2060–0104 90.126 ............................................................ 2060–0338
86.1442 .......................................................... 2060–0104 90.304–90.329 ............................................... 2060–0338
86.1542–84 .................................................... 2060–0104 90.404–90.427 ............................................... 2060–0338
86.1544–84 .................................................... 2060–0104 90.505–90.509 ............................................... 2060–0295
86.1705 .......................................................... 2060–0345 90.511–90.512 ............................................... 2060–0295
86.1707 .......................................................... 2060–0345 90.604 ............................................................ 2060–0294
86.1708 .......................................................... 2060–0345 90.611–90.613 ............................................... 2060–0294
86.1709 .......................................................... 2060–0345 90.800 ............................................................ 2060–0048
86.1710 .......................................................... 2060–0345 90.802–90.804 ............................................... 2060–0048
86.1712 .......................................................... 2060–0345 90.806 ............................................................ 2060–0048
86.1713 .......................................................... 2060–0345 90.903 ............................................................ 2060–0124
86.1714 .......................................................... 2060–0345 90.905–90.906 ............................................... 2060–0007
86.1717 .......................................................... 2060–0345
86.1721 .......................................................... 2060–0345 Determining Conformity of Federal Actions to State or
86.1723 .......................................................... 2060–0345 Federal Implementation Plans
86.1724 .......................................................... 2060–0345
86.1725 .......................................................... 2060–0345 93.150–93.160 ............................................... 2060–0279
86.1726 .......................................................... 2060–0345
86.1728 .......................................................... 2060–0345 Mandatory Patent Licenses
86.1734 .......................................................... 2060–0345
86.1735 .......................................................... 2060–0345 95.2 ................................................................ 2060–0307
86.1770 .......................................................... 2060–0345
137
§ 9.1 40 CFR Ch. I (7–1–00 Edition)

No. No.
Oil Pollution Prevention 123.45 ............................................................ 2040–0057,

2040–0170
112.1–112.7 ................................................... 2050–0021 123.62 ............................................................ 2040–0057,
2040–0170,
Oil Pollution Prevention; Non-Transportation-Related 2040–0180
Onshore Facilities 123.63 ............................................................ 2040–0057,
2040–0170,
112.20 ............................................................ 2050–0135 2040–0180
123.64 ............................................................ 2040–0057,
Designation, Reportable Quantities, and Notification for 2040–0170
Hazardous Substances
Procedures for Decisionmaking
116.4 .............................................................. 2050–0046
117.3 .............................................................. 2050–0046 124.5 .............................................................. 2040–0068
117.21 ............................................................ 2050–0046 124.31 ............................................................ 2050–0149
124.32 ............................................................ 2050–0149
EPA Administered Permit Programs: The National 124.33 ............................................................ 2050–0149
Pollutant Discharge Elimination System 124.53–124.54 ............................................... 2040–0057
122.21(f)–(l) ................................................... 2040–0086, Criteria and Standards for the National Pollutant
2040–0170 Discharge Elimination System
122.21(j), (q) .................................................. 2040–0086
122.21(m)–(p) ................................................ 2040–0068, 125.59–125.67, and appendix A and B ......... 2040–0088
2040–0170
122.26(c), (d) ................................................. 2040–0086 Water Quality Planning and Management
122.26(g) ........................................................ 2040–0211
122.41(h) ........................................................ 2040–0068, 130.6–130.10 ................................................. 2040–0071
2040–0170 130.15 ............................................................ 2040–0071
122.41(j) ......................................................... 2040–0009,
2040–0110, Water Quality Standards Regulation
2040–0170
122.41(l) ......................................................... 2040–0110, 131.1 .............................................................. 2040–0180
2040–0068, 131.5 .............................................................. 2040–0180
2040–0170 131.6–131.8 ................................................... 2040–0049
122.42(c) ........................................................ 2040–0086 131.20 ............................................................ 2040–0049
122.42(a), (b), (l) ............................................ 2040–0068, 131.21 ............................................................ 2040–0049,
2040–0170 2040–0180
122.44(g), (i) .................................................. 2040–0004, 131.22 ............................................................ 2040–0049
2040–0170, 131.31–131.36 ............................................... 2040–0049
2040–0110
122.44(j) ......................................................... 2040–0150 Water Quality Guidance for the Great Lakes System
122.44(r) ........................................................ 2040–0180
122.45(b) ........................................................ 2040–0004, 132.1 .............................................................. 2040–0180
2040–0110 132.2 .............................................................. 2040–0180
122.45(b)(4) ................................................... 2040–0068 132.3 .............................................................. 2040–0180
122.47(a) ........................................................ 2040–0110, 132.4 .............................................................. 2040–0180
2040–0170 132.5 .............................................................. 2040–0180
122.47(b) ........................................................ 2040–0110, Part 132, appendix A ..................................... 2040–0180
2040–0068, Part 132, appendix B ..................................... 2040–0180
2040–0170 Part 132, appendix C ..................................... 2040–0180
122.48 ............................................................ 2040–0004, Part 132, appendix D ..................................... 2040–0180
2040–0170 Part 132, appendix E ..................................... 2040–0180
122.62(a) ........................................................ 2040–0068, Part 132, appendix F ..................................... 2040–0180
2040–0170
122.63 ............................................................ 2040–0068, Marine Sanitation Device Standard
2040–0170
Part 140 ......................................................... 2040–0187
State Permit Requirements
National Primary Drinking Water Regulations
123.21–123.24 ............................................... 2040–0057,
2040–0170 141.2 .............................................................. 2040–0090
123.25 ............................................................ 2040–0004 141.4 .............................................................. 2040–0090
2040–0110 141.11–141.15 ............................................... 2040–0090
2040–0170 141.21–141.22 ............................................... 2040–0090
2040–0180 141.23–141.24 ............................................... 2040–0090
2040–0086 141.25–141.30 ............................................... 2040–0090
123.26–123.29 ............................................... 2040–0057, 141.31(a)–(c) ................................................. 2040–0090
2040–0170 141.31(d) ........................................................ 2040–0209
123.35(b) ........................................................ 2040–0211 141.31(e) ........................................................ 2040–0090
123.43 ............................................................ 2040–0057, 141.32(a)–(g) ................................................. 2040–0090
2040–0170 141.33(a)–(d) ................................................. 2040–0090
123.44 ............................................................ 2040–0057, 141.33(e) ........................................................ 2040–0209
2040–0170, 141.33–141.34 ............................................... 2040–0090
2040–0180 141.35 ............................................................ 2040–0208
138

No. No.
141.40 ............................................................ 2040–0208 146.64 ............................................................ 2040–0042

141.41–141.43 ............................................... 2040–0090 146.66–146.73 ............................................... 2040–0042
141.50–141.52 ............................................... 2040–0090
141.60–141.63 ............................................... 2040–0090 State Underground Injection Control Programs
141.70–141.75 ............................................... 2040–0090
141.80–141.91 ............................................... 2040–0210 147.104 .......................................................... 2040–0042
141.100 .......................................................... 2040–0090 147.304–147.305 ........................................... 2040–0042
141.110–141.111 ........................................... 2040–0090 147.504 .......................................................... 2040–0042
141.130–141.132 ........................................... 2040–0204 147.754 .......................................................... 2040–0042
141.134–141.135 ........................................... 2040–0204 147.904 .......................................................... 2040–0042
141.140–141.144 ........................................... 2040–0183 147.1154 ........................................................ 2040–0042
141.153–141.155 ........................................... 2040–0201 147.1354–147.1355 ....................................... 2040–0042
141.170 .......................................................... 2040–0205 147.1454 ........................................................ 2040–0042
141.172 .......................................................... 2040–0205 147.1654 ........................................................ 2040–0042
141.174–141.175 ........................................... 2040–0205 147.1954 ........................................................ 2040–0042
141.201–141.210 ........................................... 2040–0209 147.2103–147.2104 ....................................... 2040–0042
147.2154 ........................................................ 2040–0042
National Primary Drinking Water Regulations 147.2402 ........................................................ 2040–0042
Implementation 147.2905 ........................................................ 2040–0042
147.2912–147.2913 ....................................... 2040–0042
142.2–142.3 ................................................... 2040–0090
147.2915 ........................................................ 2040–0042
142.10 ............................................................ 2040–0090
147.2918 ........................................................ 2040–0042
142.11(a)(1)–(a)(5) ........................................ 2040–0090
142.11(a)(6) ................................................... 2040–0915 147.2920–147.2926 ....................................... 2040–0042
142.11(a)(7) ................................................... 2040–0090 147.2929 ........................................................ 2040–0042
142.12 ............................................................ 2040–0090 147.3002–147.3003 ....................................... 2040–0042
142.13 ............................................................ 2040–0090 147.3006–147.3007 ....................................... 2040–0042
142.14(a)–(d)(7) ............................................. 2040–0090 147.3011 ........................................................ 2040–0042
142.14(d)(8)–(11) ........................................... 2040–0210 147.3014–147.3016 ....................................... 2040–0042
142.14(e) ........................................................ 2040–0090 147.3101 ........................................................ 2040–0042
142.14(f) ......................................................... 2040–0209 147.3104–147.3105 ....................................... 2040–0042
142.14(g) ........................................................ 2040–0090 147.3107–147.3109 ....................................... 2040–0042
142.15(a) ........................................................ 2040–0090,
2040–0209 Hazardous Waste Injection Restrictions
142.15(b)–(c)(3) ............................................. 2040–0090
142.15(c)(4) ................................................... 2040–0210 148.5 .............................................................. 2040–0042
142.15(c)(5)–(d) ............................................. 2040–0090 148.20–148.23 ............................................... 2040–0042
142.16(a) ........................................................ 2040–0209
142.16(b)–(c) ................................................. 2040–0090 Pesticide Registration and Classification Procedures
142.16(d) ........................................................ 2040–0210
142.16(e) ........................................................ 2040–0090 152.46 ............................................................ 2070–0060
142.16(f) ......................................................... 2040–0201 152.50 ............................................................ 2070–0024,
142.17–142.24 ............................................... 2040–0090 2070–0040,
142.56–142.57 ............................................... 2040–0090 2070–0060
142.60–142.61 ............................................... 2040–0090 152.80 ............................................................ 2070–0040,
142.62 ............................................................ 2040–0090 2070–0060
142.63–142.64 ............................................... 2040–0090 152.85 ............................................................ 2070–0040,
142.70–142.78 ............................................... 2040–0090 2070–0060
142.81–142.81 ............................................... 2040–0090 152.98 ............................................................ 2070–0060
152.122 .......................................................... 2070–0060
Underground Injection Control Program 152.132 .......................................................... 2070–0044
152.135 .......................................................... 2070–0060
144.8 .............................................................. 2040–0042 152.164 .......................................................... 2070–0060
144.12 ............................................................ 2040–0042 152.404 .......................................................... 2070–0040,
144.14–144.15 ............................................... 2040–0042 2070–0060
144.23 ............................................................ 2040–0042 152.406 .......................................................... 2070–0040,
144.25–144.28 ............................................... 2040–0042 2070–0060
144.31–144.33 ............................................... 2040–0042 152.412 .......................................................... 2070–0040,
144.38 ............................................................ 2040–0042 2070–0060
144.41 ............................................................ 2040–0042 152.414 .......................................................... 2070–0040,
144.51–144.55 ............................................... 2040–0042 2070–0060
144.62–144.66 ............................................... 2040–0042
144.70 ............................................................ 2040–0042 Registration Standards
144.79–144.89 ............................................... 2040–0214
145.23 ............................................................ 2040–0214 155.30 ............................................................ 2070–0057
Underground Injection Control Program: Criteria and Labeling Requirements for Pesticides and Devices
Standards
156.10 ............................................................ 2070–0060
146.10 ............................................................ 2040–0042 156.206 .......................................................... 2070–0060
146.12–146.15 ............................................... 2040–0042 156.208 .......................................................... 2070–0060
146.22–146.25 ............................................... 2040–0042 156.210 .......................................................... 2070–0060
146.32–146.35 ............................................... 2040–0042 156.212 .......................................................... 2070–0060
146.52 ............................................................ 2040–0042
139
§ 9.1 40 CFR Ch. I (7–1–00 Edition)

No. No.
Packaging Requirements for Pesticides and Devices 158.290 .......................................................... 2070–0057,

2070–0060,
157.22 ............................................................ 2070–0052 2070–0107
157.24 ............................................................ 2070–0052 158.340 .......................................................... 2070–0057,
157.34 ............................................................ 2070–0052 2070–0060,
157.36 ............................................................ 2070–0052 2070–0107
158.390 .......................................................... 2070–0057,
Data Requirements for Registration 2070–0060,
2070–0107
158.30 ............................................................ 2070–0040, 158.440 .......................................................... 2070–0057,
2070–0057, 2070–0060,
2070–0060, 2070–0107
2070–0107 158.490 .......................................................... 2070–0057,
158.32 ............................................................ 2070–0040, 2070–0060,
2070–0053, 2070–0107
2070–0057, 158.540 .......................................................... 2070–0057,
2070–0060, 2070–0060,
2070–0107 2070–0107
158.34 ............................................................ 2070–0040, 158.590 .......................................................... 2070–0057,
2070–0057, 2070–0060,
2070–0060, 2070–0107
2070–0107 158.640 .......................................................... 2070–0057,
158.45 ............................................................ 2070–0040, 2070–0060,
2070–0057, 2070–0107
2070–0060, 158.690 .......................................................... 2070–0057,
2070–0107 2070–0060,
158.75 ............................................................ 2070–0040, 2070–0107
2070–0057, 158.740 .......................................................... 2070–0057,
2070–0060, 2070–0060,
2070–0107 2070–0107
158.101 .......................................................... 2070–0040,
2070–0057, Statements of Policies and Interpretations
2070–0060,
2070–0107 Part 159, subpart D ....................................... 2070–0039
158.155 .......................................................... 2070–0040,
2070–0057, Good Laboratory Practice Standards
2070–0060,
2070–0107 Part 160 ......................................................... 2070–0024,
158.160 .......................................................... 2070–0040, 2070–0032,
2070–0057, 2070–0040,
2070–0060, 2070–0055,
2070–0107 2070–0057,
158.162 .......................................................... 2070–0040, 2070–0060,
2070–0057, 2070–0107
2070–0060,
2070–0107 State Registration of Pesticide Products
158.165 .......................................................... 2070–0040,
2070–0057, 162.153 .......................................................... 2070–0055
2070–0060,
Certification of Usefulness of Pesticide Chemicals
2070–0107
158.167 .......................................................... 2070–0040, 163.4 .............................................................. 2070–0060,
2070–0057, 2070–0024
2070–0060, 163.5 .............................................................. 2070–0060,
2070–0107 2070–0024
158.170 .......................................................... 2070–0040,
2070–0057, Exemption of Federal and State Agencies for Use of
2070–0060, Pesticides Under Emergency Conditions
2070–0107
158.175 .......................................................... 2070–0040, 166.20 ............................................................ 2070–0032
2070–0057, 166.32 ............................................................ 2070–0032
2070–0060, 166.43 ............................................................ 2070–0032
2070–0107 166.50 ............................................................ 2070–0032
158.180 .......................................................... 2070–0040,
2070–0057, Registration of Pesticide and Active Ingredient Pro-
2070–0060, ducing Establishments, Submission of Pesticide Re-
2070–0107 ports
158.190 .......................................................... 2070–0040,
2070–0057, Part 167 ......................................................... 2070–0078
2070–0060,
2070–0107 Statements of Enforcement Policies and Interpretations
158.240 .......................................................... 2070–0057,
2070–0060, 168.65 ............................................................ 2070–0027
2070–0107 168.75 ............................................................ 2070–0027
140

No. No.
168.85 ............................................................ 2070–0027, 258.23 ............................................................ 2050–0122

2070–0028,, 258.28–258.29 ............................................... 2050–0122
2070–0078 258.51 ............................................................ 2050–0122
258.53–258.55 ............................................... 2050–0122
Books and Records of Pesticide Production and 258.57–258.58 ............................................... 2050–0122
Distribution 258.60–258.61 ............................................... 2050–0122
258.71–258.74 ............................................... 2050–0122
169.2 .............................................................. 2070–0028
Hazardous Waste Management System: General
Worker Protection Standards for Agricultural Pesticides
260.20–260.22 ............................................... 2050–0053
Part 170 ......................................................... 2070–0148 260.23 ............................................................ 2050–0145
260.31–260.33 ............................................... 2050–0053
Certification of Pesticide Applicators
Identification and Listing of Hazardous Waste
171.7 .............................................................. 2070–0029
171.8 .............................................................. 2070–0029 261.3 .............................................................. 2050–0085
171.9 .............................................................. 2070–0029 261.4 .............................................................. 2050–0053
171.10 ............................................................ 2070–0029 261.35 ............................................................ 2050–0115
171.11 ............................................................ 2070–0029
Standards Applicable to Generators of Hazardous Waste
Experimental Use Permits
262.12 ............................................................ 2050–0028
172.4 .............................................................. 2070–0040 262.20 ............................................................ 2050–0039
172.8 .............................................................. 2070–0040 262.22–262.23 ............................................... 2050–0039
262.34 ............................................................ 2050–0035,
Issuance of Food Additive Regulations 2050–0085
262.40(a) ........................................................ 2050–0039
177.81 ............................................................ 2070–0024 262.40(b) ........................................................ 2050–0024
177.92 ............................................................ 2070–0024 262.40(c) ........................................................ 2050–0035
177.98 ............................................................ 2070–0024 262.41 ............................................................ 2050–0024
177.99 ............................................................ 2070–0024 262.42 ............................................................ 2050–0039
177.102 .......................................................... 2070–0024 262.43 ............................................................ 2050–0035
177.105 .......................................................... 2070–0024 262.44(a)–(b) ................................................. 2050–0039
177.110 .......................................................... 2070–0024 262.44(c) ........................................................ 2050–0035
177.116 .......................................................... 2070–0024 262.53–262.57 ............................................... 2050–0035
262.60 ............................................................ 2050–0035
Tolerances and Exemptions from Tolerances for Pes- 262.90(c), (d), (f), (g) ..................................... 2010–0026
ticide Chemicals in or on Raw Agricultural Commod-
ities Standards Applicable to Transporters of Hazardous
Waste
180.7 .............................................................. 2070–0024
180.8 .............................................................. 2070–0024 263.11 ............................................................ 2050–0028
180.9 .............................................................. 2070–0024 263.20–263.22 ............................................... 2050–0039
180.31 ............................................................ 2070–0024 263.30 ............................................................ 2050–0039
180.32 ............................................................ 2070–0024
180.33 ............................................................ 2070–0024 Standards for Owners and Operators of Hazardous Waste
Treatment, Storage, and Disposal Facilities
404 State Program Regulations
264.11 ............................................................ 2050–0028
233.10–233.12 ............................................... 2040–0168 264.12(a) ........................................................ 2050–0120
233.21 ............................................................ 2040–0168 264.13 ............................................................ 2050–0120,
233.30 ............................................................ 2040–0168 2050–0009
233.50 ............................................................ 2040–0168 264.14 ............................................................ 2050–0009
233.52 ............................................................ 2040–0168 264.15 ............................................................ 2050–0120,
233.61 ............................................................ 2040–0140 2050–0009
264.16 ............................................................ 2050–0120,
Criteria for Classification of Solid Waste Disposal 2050–0009
Facilities and Practices 264.17 ............................................................ 2050–0120
264.18 ............................................................ 2050–0009
257.8 .............................................................. 2050–0154 264.19 ............................................................ 2050–0009
257.21(b) ........................................................ 2050–0154 264.32 ............................................................ 2050–0009
257.21(h) ........................................................ 2050–0154 264.35 ............................................................ 2050–0009
257.23 ............................................................ 2050–0154 264.37 ............................................................ 2050–0120
257.24 ............................................................ 2050–0154 264.51 ............................................................ 2050–0009
257.25 ............................................................ 2050–0154 264.52 ............................................................ 2050–0009
257.27 ............................................................ 2050–0154 264.53 ............................................................ 2050–0120
257.30 ............................................................ 2050–0154 264.54 ............................................................ 2050–0120
264.56 ............................................................ 2050–0120
Criteria for Municipal Solid Waste Landfills 264.71 ............................................................ 2050–0039
264.72 ............................................................ 2050–0039
Part 258 ......................................................... 2050–0122 264.73 ............................................................ 2050–0120
258.10–258.16 ............................................... 2050–0122 264.74 ............................................................ 2050–0120
258.20 ............................................................ 2050–0122 264.75 ............................................................ 2050–0024
141
§ 9.1 40 CFR Ch. I (7–1–00 Edition)

No. No.
264.76 ............................................................ 2050–0039 264.303(b) ...................................................... 2050–0050

264.90 ............................................................ 2050–0009 264.304(a) ...................................................... 2050–0009
264.96 ............................................................ 2050–0120 264.304(b), (c) ............................................... 2050–0050
264.97(g) ........................................................ 2050–0120 264.314 .......................................................... 2050–0050
264.97(h) ........................................................ 2050–0009 264.317 .......................................................... 2050–0009
264.97(j) ......................................................... 2050–0120 264.340 .......................................................... 2050–0009
264.98(c), (g)(1), (g)(5), (g)(6) ....................... 2050–0033 264.343 .......................................................... 2050–0050
264.98(g)(4), (h) ............................................. 2050–0009 264.344 .......................................................... 2050–0009
264.99(c), (g), (h)(1), (i)(1), (i)(2) ................... 2050–0033 264.347 .......................................................... 2050–0050
264.99(h)(2), (i)(3), (j) .................................... 2050–0009 264.552 .......................................................... 2050–0009
264.100(e), (f), (g) ......................................... 2050–0033 264.570 .......................................................... 2050–0050
264.100(h) ...................................................... 2050–0009 264.571 .......................................................... 2050–0050
264.101 .......................................................... 2050–0120 264.573 .......................................................... 2050–0050
264.112(a), (b), (c) ......................................... 2050–0009 264.574 .......................................................... 2050–0050
264.112(d) ...................................................... 2050–0120 264.575 .......................................................... 2050–0009
264.113(a), (b), (d) ........................................ 2050–0120 264.603 .......................................................... 2050–0050
264.113(e) ...................................................... 2050–0050 264.1033(a) .................................................... 2050–0009
264.115 .......................................................... 2050–0120 264.1033(j) ..................................................... 2050–0050
264.116 .......................................................... 2050–0120 264.1034 ........................................................ 2050–0050
264.118 .......................................................... 2050–0009 264.1035 ........................................................ 2050–0050
264.119(a), (b) ............................................... 2050–0120 264.1036 ........................................................ 2050–0050
264.119(c) ...................................................... 2050–0009 264.1061 ........................................................ 2050–0050
264.120 .......................................................... 2050–0120 264.1062 ........................................................ 2050–0050
264.142(a) ...................................................... 2050–0009 264.1063 ........................................................ 2050–0050
264.142(b), (c), (d) ......................................... 2050–0120 264.1064 ........................................................ 2050–0050,
264.143 .......................................................... 2050–0120 2050–0009
264.144(a) ...................................................... 2050–0009 264.1065 ........................................................ 2050–0050
264.144(b), (c), (d) ......................................... 2050–0120 264.1089 ........................................................ 2060–0318
264.145 .......................................................... 2050–0120 264.1090 ........................................................ 2060–0318
264.147(a)(7), (b)(7), (f),(g) ........................... 2050–0120 264.1100 ........................................................ 2050–0050
264.147(a)(1), (b)(1), (c), (f), (g), (h), (i), (j) .. 2050–0009 264.1101 ........................................................ 2050–0050
264.148 .......................................................... 2050–0120
264.149 .......................................................... 2050–0009 Interim Status Standards for Owners and Operators of
264.150 .......................................................... 2050–0009 Hazardous Waste Treatment, Storage, and Disposal
264.190 .......................................................... 2050–0050 Facilities
264.191 .......................................................... 2050–0050
264.192(a) ...................................................... 2050–0009 265.11 ............................................................ 2050–0028
264.192(g) ...................................................... 2050–0050 265.12(a) ........................................................ 2050–0120
264.193(c), (d), (e), (g), (h) ........................... 2050–0009 265.13 ............................................................ 2050–0120
264.193(i) ....................................................... 2050–0050 265.15 ............................................................ 2050–0120
264.196 .......................................................... 2050–0050 265.16 ............................................................ 2050–0120
264.197(b) ...................................................... 2050–0050 265.19 ............................................................ 2050–0120
264.197(c) ...................................................... 2050–0009 265.37 ............................................................ 2050–0120
264.221 .......................................................... 2050–0009 265.51 ............................................................ 2050–0120
264.222(a) ...................................................... 2050–0009 265.52 ............................................................ 2050–0120
264.222(b) ...................................................... 2050–0050 265.53 ............................................................ 2050–0120
264.223(a) ...................................................... 2050–0009 265.54 ............................................................ 2050–0120
264.223(b), (c) ............................................... 2050–0050 265.56 ............................................................ 2050–0120
264.226(c) ...................................................... 2050–0050, 265.71 ............................................................ 2050–0039
2050–0009 265.72 ............................................................ 2050–0039
264.226(d) ...................................................... 2050–0050 265.73 ............................................................ 2050–0120
264.227 .......................................................... 2050–0050 265.75 ............................................................ 2050–0024
264.231 .......................................................... 2050–0009 265.76 ............................................................ 2050–0039
264.251 .......................................................... 2050–0009 265.90 ............................................................ 2050–0033
264.252(a) ...................................................... 2050–0009 265.92 ............................................................ 2050–0033
264.252(b) ...................................................... 2050–0050 265.93 ............................................................ 2050–0033
264.253(a) ...................................................... 2050–0009 265.94 ............................................................ 2050–0033
264.253(b), (c) ............................................... 2050–0050 265.112 .......................................................... 2050–0120
264.254 .......................................................... 2050–0050 265.113(a), (b), (d) ........................................ 2050–0120
264.259 .......................................................... 2050–0009 265.113(e) ...................................................... 2050–0050
264.271 .......................................................... 2050–0009 265.115 .......................................................... 2050–0120
264.272 .......................................................... 2050–0009 265.116 .......................................................... 2050–0120
264.276 .......................................................... 2050–0050, 265.118 .......................................................... 2050–0120
2050–0009 265.119 .......................................................... 2050–0120
264.278(a)–(f), (h) .......................................... 2050–0050 265.120 .......................................................... 2050–0120
264.278(g) ...................................................... 2050–0050, 265.142 .......................................................... 2050–0120
2050–0009 265.143 .......................................................... 2050–0120
264.280 .......................................................... 2050–0050 265.144 .......................................................... 2050–0120
264.283 .......................................................... 2050–0009 265.145 .......................................................... 2050–0120
264.301 .......................................................... 2050–0009 265.147 .......................................................... 2050–0120
264.302(a) ...................................................... 2050–0009 265.148 .......................................................... 2050–0120
264.302(b) ...................................................... 2050–0050 265.149 .......................................................... 2050–0120
264.303(a) ...................................................... 2050–0009 265.150 .......................................................... 2050–0120
142

No. No.
265.190 .......................................................... 2050–0035, 268.6 .............................................................. 2050–0062

2050–0050 268.7 .............................................................. 2050–0085
265.191 .......................................................... 2050–0035, 268.9 .............................................................. 2050–0085
2050–0050 268.42 ............................................................ 2050–0085
265.192 .......................................................... 2050–0035, 268.44 ............................................................ 2050–0085
2050–0050
265.193 .......................................................... 2050–0035, EPA Administered Permit Programs: The Hazardous
2050–0050 Waste Permit Program
265.195 .......................................................... 2050–0120
265.196 .......................................................... 2050–0035, 270.1 .............................................................. 2050–0028,
2050–0050 2050–0034,
265.197(b) ...................................................... 2050–0050 2050–0009
265.197(c) ...................................................... 2050–0120 270.10 ............................................................ 2050–0009
265.221 .......................................................... 2050–0050 270.11 ............................................................ 2050–0034
265.222 .......................................................... 2050–0050 270.13 ............................................................ 2050–0034
265.223 .......................................................... 2050–0050 270.14 ............................................................ 2050–0009
265.225 .......................................................... 2050–0050 270.14(b)(21) ................................................. 2050–0062,
265.226 .......................................................... 2050–0050 2050–0085
265.229 .......................................................... 2050–0050 270.15 ............................................................ 2050–0009
265.254 .......................................................... 2050–0050 270.16 ............................................................ 2050–0009
265.255 .......................................................... 2050–0050 270.17 ............................................................ 2050–0009
265.259 .......................................................... 2050–0050 270.18 ............................................................ 2050–0009
265.260 .......................................................... 2050–0050 270.19 ............................................................ 2050–0009
265.273 .......................................................... 2050–0120 270.20 ............................................................ 2050–0009
265.276 .......................................................... 2050–0050 270.21 ............................................................ 2050–0009
265.278 .......................................................... 2050–0050 270.22 ............................................................ 2050–0073
265.280 .......................................................... 2050–0050 270.23 ............................................................ 2050–0009
265.301 .......................................................... 2050–0050 270.24 ............................................................ 2050–0009
265.302 .......................................................... 2050–0050 270.25 ............................................................ 2050–0009
265.303 .......................................................... 2050–0050 270.26 ............................................................ 2050–0115
265.304 .......................................................... 2050–0050 270.30 ............................................................ 2050–0120
265.314 .......................................................... 2050–0050 270.33 ............................................................ 2050–0009
265.340 .......................................................... 2050–0050 270.40 ............................................................ 2050–0009
265.352 .......................................................... 2050–0050 270.41 ............................................................ 2050–0009
265.383 .......................................................... 2050–0050 270.42 ............................................................ 2050–0009
265.404 .......................................................... 2050–0050 270.51 ............................................................ 2050–0009
265.440 .......................................................... 2050–0050 270.62 ............................................................ 2050–0009,
265.441 .......................................................... 2050–0050 2050–0149
265.443 .......................................................... 2050–0050 270.63 ............................................................ 2050–0009
265.444 .......................................................... 2050–0050 270.65 ............................................................ 2050–0009
265.445 .......................................................... 2050–0120 270.66 ............................................................ 2050–0073,
265.1033 ........................................................ 2050–0050 2050–0149
265.1034 ........................................................ 2050–0050 270.72 ............................................................ 2050–0034
265.1035 ........................................................ 2050–0050 270.73 ............................................................ 2050–0009
265.1061 ........................................................ 2050–0050
265.1062 ........................................................ 2050–0050 Requirements for Authorization of State Hazardous Waste
265.1063 ........................................................ 2050–0050 Programs
265.1064 ........................................................ 2050–0050
265.1090 ........................................................ 2060–0318 271.5–271.8 ................................................... 2050–0041
265.1100 ........................................................ 2050–0050 271.20–271.21 ............................................... 2050–0041
265.1101 ........................................................ 2050–0050 271.23 ............................................................ 2050–0041
Standards for the Management of Specific Hazardous Standards for Universal Waste Management
Wastes and Specific Types of Hazardous Waste Man-
agement Facilities 273.14 ............................................................ 2050–0145
273.15 ............................................................ 2050–0145
266.70 (b) ...................................................... 2050–0028 273.18 ............................................................ 2050–0145
266.70(c) ........................................................ 2050–0050 273.32 ............................................................ 2050–0145
266.80 ............................................................ 2050–0028 273.34 ............................................................ 2050–0145
266.100 .......................................................... 2050–0073 273.35 ............................................................ 2050–0145
266.102 .......................................................... 2050–0073 273.38 ............................................................ 2050–0145
266.103 .......................................................... 2050–0073 273.39 ............................................................ 2050–0145
266.104 .......................................................... 2050–0073 273.61 ............................................................ 2050–0145
266.106 .......................................................... 2050–0073 273.62 ............................................................ 2050–0145
266.107 .......................................................... 2050–0073 273.80 ............................................................ 2050–0145
266.108 .......................................................... 2050–0073
266.109 .......................................................... 2050–0073 Standards for Management of Used Oil
266.111 .......................................................... 2050–0073
266.112 .......................................................... 2050–0073 279.10–279.11 ............................................... 2050–0124
Appendix IX ................................................... 2050–0073 279.42 ............................................................ 2050–0028,
2050–0124
Land Disposal Restrictions 279.43–279.44 ............................................... 2050–0124
279.46 ............................................................ 2050–0050
268.4–268.5 ................................................... 2050–0085 279.51 ............................................................ 2050–0028
143
§ 9.1 40 CFR Ch. I (7–1–00 Edition)

No. No.
279.52–279.55 ............................................... 2050–0124 281.125 .......................................................... 2050–0068

279.56 ............................................................ 2050–0050 281.140 .......................................................... 2050–0068
279.57 ............................................................ 2050–0050, 281.143(a) ...................................................... 2050–0068
2050–0124 281.150 .......................................................... 2050–0068
279.62 ............................................................ 2050–0028 281.152 .......................................................... 2050–0068
279.63 ............................................................ 2050–0124 281.161 .......................................................... 2050–0068
279.65–279.66 ............................................... 2050–0050
279.72 ............................................................ 2050–0050 National Oil and Hazardous Substances Pollution
279.73 ............................................................ 2050–0028 Contingency Plan
279.74–279.75 ............................................... 2050–0050
279.82 ............................................................ 2050–0124 300.405 .......................................................... 2050–0046
300.425 .......................................................... 2050–0095
Technical Standards and Corrective Action Require- 300.430 .......................................................... 2050–0096
ments for Owners and Operators of Underground Stor- 300.435 .......................................................... 2050–0096
age Tanks (USTs) 300.920 .......................................................... 2050–0141
Part 300, appendix A ..................................... 2050–0095
280.11(a) ........................................................ 2050–0068
280.20(a)–(b) ................................................. 2050–0068 Designation, reportable quantities, and notification
280.20(e) ........................................................ 2050–0068
302.4 .............................................................. 2050–0046
280.22(a)–(f) .................................................. 2050–0068
302.6 .............................................................. 2050–0046
280.22(g) ........................................................ 2050–0068
302.8 .............................................................. 2050–0086
280.31 ............................................................ 2050–0068
280.33(f) ......................................................... 2050–0068 Hazardous Substances Superfund; Response Claims
280.34(a) ........................................................ 2050–0068 Procedures
280.34(b) ........................................................ 2050–0068
280.34(c) ........................................................ 2050–0068 307.11–307.14 ............................................... 2050–0106
280.40 ............................................................ 2050–0068 307.21–307.23 ............................................... 2050–0106
280.43 ............................................................ 2050–0068 307.30–307.32 ............................................... 2050–0106
280.44 ............................................................ 2050–0068
280.45 ............................................................ 2050–0068 Reimbursement to Local Governments for Emergency
280.50 ............................................................ 2050–0068 Response to Hazardous Substance Releases
280.53 ............................................................ 2050–0068
280.61 ............................................................ 2050–0068 310.05 ............................................................ 2050–0077
280.62 ............................................................ 2050–0068 310.10–310.12 ............................................... 2050–0077
280.63 ............................................................ 2050–0068 310.20 ............................................................ 2050–0077
280.64 ............................................................ 2050–0068 310.30 ............................................................ 2050–0077
280.65 ............................................................ 2050–0068 310.40 ............................................................ 2050–0077
280.66(a) ........................................................ 2050–0068 310.50 ............................................................ 2050–0077
280.66(c) ........................................................ 2050–0068 310.60 ............................................................ 2050–0077
280.66(d) ........................................................ 2050–0068 310.70 ............................................................ 2050–0077
280.67 ............................................................ 2050–0068 310.80 ............................................................ 2050–0077
280.71(a) ........................................................ 2050–0068 310.90 ............................................................ 2050–0077
280.72(a) ........................................................ 2050–0068 Part 310, appendix II ..................................... 2050–0077
280.74 ............................................................ 2050–0068
280.95 ............................................................ 2050–0068 Worker Protection Standards for Hazardous Waste
280.96 ............................................................ 2050–0068 Operations and Emergency Response
280.97 ............................................................ 2050–0068
311.1–311.2 ................................................... 2050–0105
280.98 ............................................................ 2050–0068
280.99 ............................................................ 2050–0068 Trade Secrecy Claims for Emergency Planning and
280.100 .......................................................... 2050–0068 Community Right-to-Know; Health Professionals
280.101 .......................................................... 2050–0068
280.102 .......................................................... 2050–0068 350.5–350.16 ................................................. 2050–0078
280.103 .......................................................... 2050–0068 350.27 ............................................................ 2050–0078
280.104 .......................................................... 2050–0068 350.40 ............................................................ 2050–0078
280.105 .......................................................... 2050–0068
280.106 .......................................................... 2050–0068 Emergency planning and notification
280.107 .......................................................... 2050–0068
280.108 .......................................................... 2050–0068 Part 355, appendix A, appendix B ................ 2050–0046
280.109(a) ...................................................... 2050–0068
280.109(b) ...................................................... 2050–0068 Hazardous Chemical Reporting: Community Right-to-
280.110 .......................................................... 2050–0068 Know
280.111 .......................................................... 2050–0068
280.111(b)(11) ............................................... 2050–0068 370.21 ............................................................ 2050–0072
280.114(a)–(d) ............................................... 2050–0068 370.25 ............................................................ 2050–0072
280.114(e) ...................................................... 2050–0068 370.30 ............................................................ 2050–0072
Approval of State Underground Storage Tank Programs Toxic Chemical Release Reporting: Community Right–to–
Know
281.120(a) ...................................................... 2050–0068
281.120(g) ...................................................... 2050–0068 Part 372, subpart A ....................................... 2070–0093,
281.121 .......................................................... 2050–0068 2070–0143
281.122 .......................................................... 2050–0068 372.22 ............................................................ 2070–0093,
281.124 .......................................................... 2050–0068 2070–0143
144

No. No.
372.25 ............................................................ 2070–0093 Pharmaceutical Manufacturing Point Source Category

372.27 ............................................................ 2070–0143
372.30 ............................................................ 2070–0093, 439.14–439.17 ............................................... 2040–0033
2070–0143 439.24–439.27 ............................................... 2040–0033
372.38 ............................................................ 2070–0093, 439.34–439.37 ............................................... 2040–0033
2070–0143 439.44–439.47 ............................................... 2040–0033
Part 372, subpart C ....................................... 2070–0093,
2070–0143 Coil Coating Point Source Category
Part 372, subpart D ....................................... 2070–0093,
465.03 ............................................................ 2040–0033
2070–0143
372.85 ............................................................ 2070–0093
Porcelain Enameling Point Source Category
372.95 ............................................................ 2070–0143
466.03 ............................................................ 2040–0033
General Pretreatment Regulations for Existing and New
Sources of Pollution Aluminum Forming Point Source Category
403.5(b) .......................................................... 2040–0009 467.03 ............................................................ 2040–0033
403.6–403.7 ................................................... 2040–0009
403.8(a)–(e) ................................................... 2040–0009 State Sludge Management Program Requirements
403.8(f) ........................................................... 2040–0009
403.9–403.10 ................................................. 2040–0009 501.15(a) ........................................................ 2040–0086,
403.12(b)–(g) ................................................. 2040–0009 2040–0110
403.12(h), (i) .................................................. 2040–0009 501.15(b) ........................................................ 2040–0004,
403.12(j), (k), (l), (o) ...................................... 2040–0009 2040–0068,
403.12(m), (p) ................................................ 2040–0009 2040–0110
403.13 ............................................................ 2040–0009 501.15(c) ........................................................ 2040–0068
403.15 ............................................................ 2040–0009 501.16 ............................................................ 2040–0057
403.17–403.18 ............................................... 2040–0009, 501.21 ............................................................ 2040–0057
2040–0170
Standards for the Use or Disposal of Sewage Sludge
Steam Electric Generating Point Source Category
503.17–503.18 ............................................... 2040–0157
423.12–423.13 ............................................... 2040–0033 503.27–503.28 ............................................... 2040–0157
423.15 ............................................................ 2040–0033 503.47–503.48 ............................................... 2040–0157
Pulp, Paper, and Paperboard Point Source Category Fuel Economy of Motor Vehicles
430.03 ............................................................ 2040–0207 600.006–86 .................................................... 2060–0104

430.14–430.17 ............................................... 2040–0033 600.007–80 .................................................... 2060–0104
430.24(a) ........................................................ 2040–0033 600.010–86 .................................................... 2060–0104
600.113–88 .................................................... 2060–0104
430.24(b) ........................................................ 2040–0033
600.113–93 .................................................... 2060–0104
2040–0202
600.206–86 .................................................... 2060–0104
430.24(c) ........................................................ 2040–0202
600.207–86 .................................................... 2060–0104
430.24(d) ........................................................ 2040–0033
600.209–85 .................................................... 2060–0104
430.24(e) ........................................................ 2040–0033 600.306–86 .................................................... 2060–0104
430.25–430.27 ............................................... 2040–0033 600.307–86 .................................................... 2060–0104
430.54–430.57 ............................................... 2040–0033 600.311–86 .................................................... 2060–0104
430.64–430.67 ............................................... 2040–0033 600.312–86 .................................................... 2060–0104
430.74–430.77 ............................................... 2040–0033 600.313–86 .................................................... 2060–0104
430.84–430.87 ............................................... 2040–0033 600.314–86 .................................................... 2060–0104
430.94–430.97 ............................................... 2040–0033 600.507–86 .................................................... 2060–0104
430.104–430.107 ........................................... 2040–0033 600.509–86 .................................................... 2060–0104
430.114–430.117 ........................................... 2040–0033 600.510–86 .................................................... 2060–0104
430.134–430.137 ........................................... 2040–0033 600.512–86 .................................................... 2060–0104
430.144–430.147 ........................................... 2040–0033
430.154–430.157 ........................................... 2040–0033 Toxic Substances Control Act: General
430.164–430.167 ........................................... 2040–0033
430.174–430.177 ........................................... 2040–0033 700.45 ............................................................ 2070–0012,
430.184–430.187 ........................................... 2040–0033 2070–0038
430.194–430.197 ........................................... 2040–0033
430.204–430.207 ........................................... 2040–0033 Reporting and Recordkeeping Requirements
430.214–430.217 ........................................... 2040–0033
430.224–430.227 ........................................... 2040–0033 704.5 .............................................................. 2070–0067
430.234–430.237 ........................................... 2040–0033 704.11 ............................................................ 2070–0067
430.244–430.247 ........................................... 2040–0033 704.25 ............................................................ 2070–0067
430.254–430.257 ........................................... 2040–0033 704.33 ............................................................ 2070–0067
430.264–430.267 ........................................... 2040–0033 704.43 ............................................................ 2070–0067
704.45 ............................................................ 2070–0067
The Builders’ Paper and Board Mills Point Source 704.95 ............................................................ 2070–0067
Category 704.102 .......................................................... 2070–0067
704.104 .......................................................... 2070–0067
431.14–431.17 ............................................... 2040–0033 704.175 .......................................................... 2070–0067
145
§ 9.1 40 CFR Ch. I (7–1–00 Edition)

No. No.
Chemical Imports and Exports 721.185 .......................................................... 2070–0012,

2070–0038
707.65 ............................................................ 2070–0030 721.225 .......................................................... 2070–0012
707.67 ............................................................ 2070–0030 721.267 .......................................................... 2070–0012
707.72 ............................................................ 2070–0030 721.275 .......................................................... 2070–0012
721.285 .......................................................... 2070–0012
Inventory Reporting Regulations 721.305 .......................................................... 2070–0012
721.320 .......................................................... 2070–0012
Part 710 ......................................................... 2070–0070 721.323 .......................................................... 2070–0012
721.324 .......................................................... 2070–0012
Chemical Information Rules 721.329 .......................................................... 2070–0012
721.336 .......................................................... 2070–0012
712.5 .............................................................. 2070–0054 721.405 .......................................................... 2070–0012
712.7 .............................................................. 2070–0054 721.430 .......................................................... 2070–0012
712.20 ............................................................ 2070–0054
721.435 .......................................................... 2070–0012
712.28 ............................................................ 2070–0054
721.445 .......................................................... 2070–0012
712.30 ............................................................ 2070–0054
721.450 .......................................................... 2070–0012
721.484 .......................................................... 2070–0012
Health and Safety Data Reporting
721.505 .......................................................... 2070–0012
716.5 .............................................................. 2070–0004 721.520 .......................................................... 2070–0012
716.10 ............................................................ 2070–0004 721.524 .......................................................... 2070–0012
716.20 ............................................................ 2070–0004 721.526 .......................................................... 2070–0012
716.25 ............................................................ 2070–0004 721.528 .......................................................... 2070–0012
716.30 ............................................................ 2070–0004 721.530 .......................................................... 2070–0012
716.35 ............................................................ 2070–0004 721.536 .......................................................... 2070–0012
716.40 ............................................................ 2070–0004 721.537 .......................................................... 2070–0012
716.45 ............................................................ 2070–0004 721.538 .......................................................... 2070–0012
716.50 ............................................................ 2070–0004 721.539 .......................................................... 2070–0012
716.60 ............................................................ 2070–0004 721.540 .......................................................... 2070–0012
716.65 ............................................................ 2070–0004 721.550 .......................................................... 2070–0012
716.105 .......................................................... 2070–0004 721.555 .......................................................... 2070–0012
716.120 .......................................................... 2070–0004 721.558 .......................................................... 2070–0012
721.562 .......................................................... 2070–0012
Records and Reports of Allegations That Chemical Sub- 721.567 .......................................................... 2070–0012
stances Cause Significant Adverse Reactions to 721.575 .......................................................... 2070–0012
Health or the Environment 721.600 .......................................................... 2070–0012
721.625 .......................................................... 2070–0012
717.5 .............................................................. 2070–0017 721.630 .......................................................... 2070–0012
717.7 .............................................................. 2070–0017 721.637 .......................................................... 2070–0012
717.12 ............................................................ 2070–0017 721.639 .......................................................... 2070–0012
717.15 ............................................................ 2070–0017 721.640 .......................................................... 2070–0012
717.17 ............................................................ 2070–0017 721.641 .......................................................... 2070–0012
721.642 .......................................................... 2070–0012
Premanufacture Notification 721.643 .......................................................... 2070–0012
721.644 .......................................................... 2070–0012
720.1 .............................................................. 2070–0012
721.646 .......................................................... 2070–0012
720.22 ............................................................ 2070–0012
721.650 .......................................................... 2070–0038
720.25 ............................................................ 2070–0012
721.655 .......................................................... 2070–0012
720.30 ............................................................ 2070–0012
721.715 .......................................................... 2070–0012
720.36 ............................................................ 2070–0012
720.38 ............................................................ 2070–0012 721.720 .......................................................... 2070–0012
Part 720, subpart C ....................................... 2070–0012 721.750 .......................................................... 2070–0012
720.62 ............................................................ 2070–0012 721.757 .......................................................... 2070–0012
720.75 ............................................................ 2070–0012 721.775 .......................................................... 2070–0012
720.78 ............................................................ 2070–0012 721.785 .......................................................... 2070–0012
720.80 ............................................................ 2070–0012 721.805 .......................................................... 2070–0012
720.85 ............................................................ 2070–0012 721.825 .......................................................... 2070–0012
720.87 ............................................................ 2070–0012 721.840 .......................................................... 2070–0012
720.90 ............................................................ 2070–0012 721.875 .......................................................... 2070–0012
720.102 .......................................................... 2070–0012 721.925 .......................................................... 2070–0012
Part 720, appendix A ..................................... 2070–0012 721.950 .......................................................... 2070–0012
721.977 .......................................................... 2070–0012
Significant New Uses of Chemical Substances 721.980 .......................................................... 2070–0012
721.981 .......................................................... 2070–0012
Part 721, subpart A ....................................... 2070–0012, 721.982 .......................................................... 2070–0012
2070–0038 721.987 .......................................................... 2070–0012
721.72 ............................................................ 2070–0012, 721.988 .......................................................... 2070–0012
2070–0038 721.1000 ........................................................ 2070–0012
721.125 .......................................................... 2070–0012, 721.1025 ........................................................ 2070–0038
2070–0038 721.1050 ........................................................ 2070–0012
721.160 .......................................................... 2070–0012, 721.1055 ........................................................ 2070–0012
2070–0038 721.1068 ........................................................ 2070–0012
721.170 .......................................................... 2070–0012, 721.1075 ........................................................ 2070–0012
2070–0038 721.1105 ........................................................ 2070–0012
146

No. No.
721.1120 ........................................................ 2070–0012 721.2081 ........................................................ 2070–0012

721.1150 ........................................................ 2070–0012 721.2082 ........................................................ 2070–0012
721.1155 ........................................................ 2070–0012 721.2083 ........................................................ 2070–0012
721.1187 ........................................................ 2070–0012 721.2084 ........................................................ 2070–0038
721.1193 ........................................................ 2070–0012 721.2085 ........................................................ 2070–0012
721.1210 ........................................................ 2070–0012 721.2086 ........................................................ 2070–0012
721.1225 ........................................................ 2070–0012 721.2087 ........................................................ 2070–0012
721.1300 ........................................................ 2070–0012 721.2088 ........................................................ 2070–0012
721.1325 ........................................................ 2070–0012 721.2089 ........................................................ 2070–0012
721.1350 ........................................................ 2070–0012 721.2091 ........................................................ 2070–0012
721.1372 ........................................................ 2070–0012 721.2092 ........................................................ 2070–0038
721.1375 ........................................................ 2070–0012 721.2094 ........................................................ 2070–0012
721.1425 ........................................................ 2070–0038 721.2095 ........................................................ 2070–0012
721.1430 ........................................................ 2070–0038 721.2097 ........................................................ 2070–0012
721.1435 ........................................................ 2070–0038 721.2120 ........................................................ 2070–0012
721.1440 ........................................................ 2070–0038 721.2122 ........................................................ 2070–0012
721.1450 ........................................................ 2070–0012 721.2140 ........................................................ 2070–0012
721.1500 ........................................................ 2070–0012 721.2145 ........................................................ 2070–0012
721.1550 ........................................................ 2070–0012 721.2175 ........................................................ 2070–0012
721.1555 ........................................................ 2070–0012 721.2222 ........................................................ 2070–0012
721.1568 ........................................................ 2070–0012 721.2225 ........................................................ 2070–0012
721.1576 ........................................................ 2070–0012 721.2250 ........................................................ 2070–0012
721.1577 ........................................................ 2070–0012 721.2260 ........................................................ 2070–0012
721.1578 ........................................................ 2070–0012 721.2270 ........................................................ 2070–0012
721.1579 ........................................................ 2070–0012 721.2275 ........................................................ 2070–0012
721.1580 ........................................................ 2070–0012 721.2280 ........................................................ 2070–0012
721.1612 ........................................................ 2070–0012 721.2287 ........................................................ 2070–0038
721.1625 ........................................................ 2070–0012 721.2340 ........................................................ 2070–0012
721.1630 ........................................................ 2070–0012 721.2345 ........................................................ 2070–0012
721.1637 ........................................................ 2070–0012 721.2350 ........................................................ 2070–0012
721.1640 ........................................................ 2070–0012 721.2355 ........................................................ 2070–0038
721.1643 ........................................................ 2070–0012 721.2380 ........................................................ 2070–0012
721.1645 ........................................................ 2070–0012 721.2385 ........................................................ 2070–0012
721.1650 ........................................................ 2070–0012 721.2410 ........................................................ 2070–0012
721.1655 ........................................................ 2070–0012 721.2420 ........................................................ 2070–0012
721.1660 ........................................................ 2070–0038 721.2475 ........................................................ 2070–0012
721.1675 ........................................................ 2070–0012 721.2480 ........................................................ 2070–0012
721.1700 ........................................................ 2070–0012 721.2485 ........................................................ 2070–0012
721.1705 ........................................................ 2070–0012 721.2520 ........................................................ 2070–0012
721.1710 ........................................................ 2070–0012 721.2527 ........................................................ 2070–0012
721.1725 ........................................................ 2070–0012 721.2532 ........................................................ 2070–0012
721.1728 ........................................................ 2070–0012 721.2535 ........................................................ 2070–0012
721.1729 ........................................................ 2070–0012 721.2540 ........................................................ 2070–0012
721.1730 ........................................................ 2070–0012 721.2560 ........................................................ 2070–0012
721.1731 ........................................................ 2070–0012 721.2565 ........................................................ 2070–0012
721.1732 ........................................................ 2070–0012 721.2570 ........................................................ 2070–0012
721.1734 ........................................................ 2070–0012 721.2575 ........................................................ 2070–0012
721.1735 ........................................................ 2070–0012 721.2580 ........................................................ 2070–0012
721.1738 ........................................................ 2070–0012 721.2585 ........................................................ 2070–0012
721.1745 ........................................................ 2070–0012 721.2600 ........................................................ 2070–0038
721.1750 ........................................................ 2070–0012 721.2625 ........................................................ 2070–0012
721.1755 ........................................................ 2070–0012 721.2675 ........................................................ 2070–0012
721.1760 ........................................................ 2070–0012 721.2725 ........................................................ 2070–0038
721.1765 ........................................................ 2070–0012 721.2755 ........................................................ 2070–0012
721.1775 ........................................................ 2070–0012 721.2800 ........................................................ 2070–0038
721.1790 ........................................................ 2070–0038 721.2805 ........................................................ 2070–0012
721.1800 ........................................................ 2070–0012 721.2825 ........................................................ 2070–0012
721.1805 ........................................................ 2070–0012 721.2900 ........................................................ 2070–0012
721.1820 ........................................................ 2070–0012 721.2920 ........................................................ 2070–0012
721.1825 ........................................................ 2070–0012 721.2925 ........................................................ 2070–0012
721.1850 ........................................................ 2070–0012 721.2950 ........................................................ 2070–0012
721.1875 ........................................................ 2070–0012 721.3000 ........................................................ 2070–0012
721.1900 ........................................................ 2070–0012 721.3025 ........................................................ 2070–0012
721.1907 ........................................................ 2070–0012 721.3031 ........................................................ 2070–0012
721.1920 ........................................................ 2070–0012 721.3032 ........................................................ 2070–0012
721.1925 ........................................................ 2070–0012 721.3034 ........................................................ 2070–0012
721.1930 ........................................................ 2070–0012 721.3063 ........................................................ 2070–0012
721.1950 ........................................................ 2070–0012 721.3080 ........................................................ 2070–0012
721.2025 ........................................................ 2070–0012 721.3085 ........................................................ 2070–0012
721.2075 ........................................................ 2070–0012 721.3100 ........................................................ 2070–0012
721.2077 ........................................................ 2070–0012 721.3140 ........................................................ 2070–0012
721.2078 ........................................................ 2070–0012 721.3152 ........................................................ 2070–0012
721.2079 ........................................................ 2070–0012 721.3155 ........................................................ 2070–0012
147
§ 9.1 40 CFR Ch. I (7–1–00 Edition)

No. No.
721.3160 ........................................................ 2070–0038 721.4215 ........................................................ 2070–0012

721.3220 ........................................................ 2070–0038 721.4240 ........................................................ 2070–0012
721.3248 ........................................................ 2070–0012 721.4250 ........................................................ 2070–0012
721.3254 ........................................................ 2070–0012 721.4255 ........................................................ 2070–0012
721.3260 ........................................................ 2070–0012 721.4257 ........................................................ 2070–0012
721.3310 ........................................................ 2070–0012 721.4259 ........................................................ 2070–0012
721.3320 ........................................................ 2070–0012 721.4260 ........................................................ 2070–0012
721.3340 ........................................................ 2070–0012 721.4265 ........................................................ 2070–0012
721.3350 ........................................................ 2070–0038 721.4270 ........................................................ 2070–0012
721.3360 ........................................................ 2070–0012 721.4280 ........................................................ 2070–0012
721.3364 ........................................................ 2070–0012 721.4300 ........................................................ 2070–0012
721.3374 ........................................................ 2070–0012 721.4320 ........................................................ 2070–0012
721.3380 ........................................................ 2070–0012 721.4340 ........................................................ 2070–0012
721.3390 ........................................................ 2070–0012 721.4360 ........................................................ 2070–0038
721.3420 ........................................................ 2070–0012 721.4380 ........................................................ 2070–0012
721.3430 ........................................................ 2070–0038 721.4385 ........................................................ 2070–0012
721.3435 ........................................................ 2070–0012 721.4390 ........................................................ 2070–0012
721.3437 ........................................................ 2070–0012 721.4420 ........................................................ 2070–0012
721.3440 ........................................................ 2070–0012 721.4460 ........................................................ 2070–0012
721.3460 ........................................................ 2070–0012 721.4462 ........................................................ 2070–0012
721.3465 ........................................................ 2070–0012 721.4463 ........................................................ 2070–0012
721.3480 ........................................................ 2070–0012 721.4464 ........................................................ 2070–0012
721.3485 ........................................................ 2070–0012 721.4465 ........................................................ 2070–0012
721.3486 ........................................................ 2070–0012 721.4466 ........................................................ 2070–0012
721.3488 ........................................................ 2070–0012 721.4467 ........................................................ 2070–0012
721.3500 ........................................................ 2070–0012 721.4468 ........................................................ 2070–0012
721.3520 ........................................................ 2070–0012 721.4469 ........................................................ 2070–0012
721.3550 ........................................................ 2070–0012 721.4470 ........................................................ 2070–0012
721.3560 ........................................................ 2070–0012 721.4472 ........................................................ 2070–0012
721.3565 ........................................................ 2070–0012 721.4473 ........................................................ 2070–0012
721.3620 ........................................................ 2070–0012 721.4476 ........................................................ 2070–0012
721.3625 ........................................................ 2070–0012 721.4480 ........................................................ 2070–0012
721.3627 ........................................................ 2070–0012 721.4484 ........................................................ 2070–0012
721.3628 ........................................................ 2070–0012 721.4490 ........................................................ 2070–0012
721.3629 ........................................................ 2070–0012 721.4494 ........................................................ 2070–0012
721.3635 ........................................................ 2070–0012 721.4497 ........................................................ 2070–0012
721.3680 ........................................................ 2070–0012 721.4500 ........................................................ 2070–0012
721.3700 ........................................................ 2070–0012 721.4520 ........................................................ 2070–0012
721.3720 ........................................................ 2070–0012 721.4550 ........................................................ 2070–0012
721.3740 ........................................................ 2070–0012 721.4568 ........................................................ 2070–0012
721.3760 ........................................................ 2070–0012 721.4585 ........................................................ 2070–0012
721.3764 ........................................................ 2070–0012 721.4587 ........................................................ 2070–0012
721.3790 ........................................................ 2070–0012 721.4589 ........................................................ 2070–0012
721.3800 ........................................................ 2070–0012 721.4590 ........................................................ 2070–0012
721.3815 ........................................................ 2070–0012 721.4594 ........................................................ 2070–0012
721.3840 ........................................................ 2070–0012 721.4596 ........................................................ 2070–0012
721.3845 ........................................................ 2070–0012 721.4600 ........................................................ 2070–0012
721.3860 ........................................................ 2070–0012 721.4620 ........................................................ 2070–0012
721.3880 ........................................................ 2070–0012 721.4660 ........................................................ 2070–0012
721.3900 ........................................................ 2070–0012 721.4663 ........................................................ 2070–0012
721.4000 ........................................................ 2070–0012 721.4668 ........................................................ 2070–0012
721.4040 ........................................................ 2070–0012 721.4680 ........................................................ 2070–0012
721.4060 ........................................................ 2070–0012 721.4685 ........................................................ 2070–0012
721.4080 ........................................................ 2070–0038 721.4700 ........................................................ 2070–0012
721.4085 ........................................................ 2070–0012 721.4720 ........................................................ 2070–0012
721.4090 ........................................................ 2070–0012 721.4740 ........................................................ 2070–0038
721.4095 ........................................................ 2070–0012 721.4794 ........................................................ 2070–0012
721.4097 ........................................................ 2070–0012 721.4820 ........................................................ 2070–0012
721.4098 ........................................................ 2070–0012 721.4840 ........................................................ 2070–0012
721.4100 ........................................................ 2070–0012 721.4880 ........................................................ 2070–0012
721.4105 ........................................................ 2070–0012 721.4885 ........................................................ 2070–0012
721.4106 ........................................................ 2070–0012 721.4925 ........................................................ 2070–0038
721.4107 ........................................................ 2070–0012 721.5050 ........................................................ 2070–0012
721.4108 ........................................................ 2070–0012 721.5075 ........................................................ 2070–0012
721.4110 ........................................................ 2070–0012 721.5175 ........................................................ 2070–0038
721.4128 ........................................................ 2070–0012 721.5185 ........................................................ 2070–0012
721.4133 ........................................................ 2070–0012 721.5192 ........................................................ 2070–0012
721.4140 ........................................................ 2070–0038 721.5200 ........................................................ 2070–0012
721.4155 ........................................................ 2070–0038 721.5225 ........................................................ 2070–0012
721.4158 ........................................................ 2070–0038 721.5250 ........................................................ 2070–0012
721.4160 ........................................................ 2070–0038 721.5255 ........................................................ 2070–0012
721.4180 ........................................................ 2070–0038 721.5275 ........................................................ 2070–0012
721.4200 ........................................................ 2070–0012 721.5276 ........................................................ 2070–0012
148

No. No.
721.5278 ........................................................ 2070–0012 721.6090 ........................................................ 2070–0012

721.5279 ........................................................ 2070–0012 721.6097 ........................................................ 2070–0012
721.5280 ........................................................ 2070–0012 721.6100 ........................................................ 2070–0012
721.5281 ........................................................ 2070–0012 721.6110 ........................................................ 2070–0012
721.5282 ........................................................ 2070–0012 721.6120 ........................................................ 2070–0012
721.5285 ........................................................ 2070–0012 721.6140 ........................................................ 2070–0012
721.5290 ........................................................ 2070–0012 721.6160 ........................................................ 2070–0012
721.5300 ........................................................ 2070–0012 721.6165 ........................................................ 2070–0012
721.5310 ........................................................ 2070–0012 721.6170 ........................................................ 2070–0012
721.5325 ........................................................ 2070–0012 721.6175 ........................................................ 2070–0012
721.5330 ........................................................ 2070–0012 721.6176 ........................................................ 2070–0012
721.5350 ........................................................ 2070–0012 721.6186 ........................................................ 2070–0012
721.5356 ........................................................ 2070–0012 721.6193 ........................................................ 2070–0012
721.5360 ........................................................ 2070–0012 721.6197 ........................................................ 2070–0012
721.5375 ........................................................ 2070–0012 721.6200 ........................................................ 2070–0012
721.5380 ........................................................ 2070–0012 721.6220 ........................................................ 2070–0012
721.5385 ........................................................ 2070–0012 721.6440 ........................................................ 2070–0012
721.5400 ........................................................ 2070–0012 721.6470 ........................................................ 2070–0012
721.5425 ........................................................ 2070–0012 721.6475 ........................................................ 2070–0012
721.5450 ........................................................ 2070–0012 721.6477 ........................................................ 2070–0012
721.5460 ........................................................ 2070–0012 721.6485 ........................................................ 2070–0012
721.5465 ........................................................ 2070–0012 721.6490 ........................................................ 2070–0012
721.5475 ........................................................ 2070–0012 721.6495 ........................................................ 2070–0012
721.5500 ........................................................ 2070–0012 721.6498 ........................................................ 2070–0012
721.5525 ........................................................ 2070–0012 721.6505 ........................................................ 2070–0012
721.5540 ........................................................ 2070–0012 721.6520 ........................................................ 2070–0012
721.5545 ........................................................ 2070–0012 721.6540 ........................................................ 2070–0012
721.5547 ........................................................ 2070–0012 721.6560 ........................................................ 2070–0012
721.5548 ........................................................ 2070–0012 721.6600 ........................................................ 2070–0012
721.5549 ........................................................ 2070–0012 721.6620 ........................................................ 2070–0012
721.5550 ........................................................ 2070–0012 721.6625 ........................................................ 2070–0012
721.5575 ........................................................ 2070–0012 721.6660 ........................................................ 2070–0012
721.5580 ........................................................ 2070–0012 721.6680 ........................................................ 2070–0012
721.5600 ........................................................ 2070–0038 721.6820 ........................................................ 2070–0012
721.5625 ........................................................ 2070–0038 721.6900 ........................................................ 2070–0012
721.5645 ........................................................ 2070–0012 721.6920 ........................................................ 2070–0012
721.5650 ........................................................ 2070–0012 721.6980 ........................................................ 2070–0012
721.5687 ........................................................ 2070–0012 721.7000 ........................................................ 2070–0012
721.5700 ........................................................ 2070–0012 721.7020 ........................................................ 2070–0012
721.5708 ........................................................ 2070–0012 721.7046 ........................................................ 2070–0012
721.5710 ........................................................ 2070–0038 721.7160 ........................................................ 2070–0012
721.5730 ........................................................ 2070–0012 721.7200 ........................................................ 2070–0012
721.5740 ........................................................ 2070–0012 721.7210 ........................................................ 2070–0012
721.5760 ........................................................ 2070–0012 721.7220 ........................................................ 2070–0012
721.5763 ........................................................ 2070–0012 721.7260 ........................................................ 2070–0012
721.5769 ........................................................ 2070–0012 721.7280 ........................................................ 2070–0012
721.5775 ........................................................ 2070–0012 721.7285 ........................................................ 2070–0012
721.5780 ........................................................ 2070–0012 721.7286 ........................................................ 2070–0038
721.5800 ........................................................ 2070–0012 721.7375 ........................................................ 2070–0012
721.5820 ........................................................ 2070–0012 721.7378 ........................................................ 2070–0012
721.5840 ........................................................ 2070–0012 721.7440 ........................................................ 2070–0012
721.5860 ........................................................ 2070–0012 721.7450 ........................................................ 2070–0012
721.5867 ........................................................ 2070–0012 721.7480 ........................................................ 2070–0012
721.5880 ........................................................ 2070–0012 721.7500 ........................................................ 2070–0012
721.5900 ........................................................ 2070–0012 721.7600 ........................................................ 2070–0012
721.5913 ........................................................ 2070–0012 721.7620 ........................................................ 2070–0012
721.5915 ........................................................ 2070–0012 721.7655 ........................................................ 2070–0012
721.5920 ........................................................ 2070–0012 721.7700 ........................................................ 2070–0012
721.5930 ........................................................ 2070–0012 721.7710 ........................................................ 2070–0012
721.5960 ........................................................ 2070–0012 721.7720 ........................................................ 2070–0012
721.5965 ........................................................ 2070–0012 721.7770 ........................................................ 2070–0012
721.5970 ........................................................ 2070–0012 721.7780 ........................................................ 2070–0012
721.5980 ........................................................ 2070–0012 721.7785 ........................................................ 2070–0012
721.5995 ........................................................ 2070–0012 721.8079 ........................................................ 2070–0012
721.6000 ........................................................ 2070–0038 721.8082 ........................................................ 2070–0012
721.6020 ........................................................ 2070–0012 721.8090 ........................................................ 2070–0012
721.6045 ........................................................ 2070–0012 721.8095 ........................................................ 2070–0012
721.6060 ........................................................ 2070–0012 721.8100 ........................................................ 2070–0012
721.6070 ........................................................ 2070–0012 721.8153 ........................................................ 2070–0012
721.6075 ........................................................ 2070–0012 721.8155 ........................................................ 2070–0012
721.6078 ........................................................ 2070–0012 721.8160 ........................................................ 2070–0012
721.6080 ........................................................ 2070–0012 721.8170 ........................................................ 2070–0012
721.6085 ........................................................ 2070–0012 721.8225 ........................................................ 2070–0012
149
§ 9.1 40 CFR Ch. I (7–1–00 Edition)

No. No.
721.8250 ........................................................ 2070–0012 721.9661 ........................................................ 2070–0012

721.8350 ........................................................ 2070–0012 721.9662 ........................................................ 2070–0012
721.8450 ........................................................ 2070–0012 721.9663 ........................................................ 2070–0012
721.8500 ........................................................ 2070–0012 721.9664 ........................................................ 2070–0012
721.8660 ........................................................ 2070–0012 721.9665 ........................................................ 2070–0012
721.8670 ........................................................ 2070–0012 721.9668 ........................................................ 2070–0012
721.8673 ........................................................ 2070–0012 721.9672 ........................................................ 2070–0012
721.8675 ........................................................ 2070–0012 721.9675 ........................................................ 2070–0012
721.8700 ........................................................ 2070–0012 721.9680 ........................................................ 2070–0012
721.8750 ........................................................ 2070–0012 721.9685 ........................................................ 2070–0012
721.8775 ........................................................ 2070–0012 721.9700 ........................................................ 2070–0012
721.8780 ........................................................ 2070–0012 721.9717 ........................................................ 2070–0012
721.8825 ........................................................ 2070–0012 721.9719 ........................................................ 2070–0012
721.8850 ........................................................ 2070–0012 721.9720 ........................................................ 2070–0012
721.8875 ........................................................ 2070–0012 721.9730 ........................................................ 2070–0012
721.8900 ........................................................ 2070–0012 721.9740 ........................................................ 2070–0012
721.8965 ........................................................ 2070–0012 721.9750 ........................................................ 2070–0012
721.9000 ........................................................ 2070–0038 721.9785 ........................................................ 2070–0012
721.9005 ........................................................ 2070–0012 721.9790 ........................................................ 2070–0012
721.9010 ........................................................ 2070–0012 721.9795 ........................................................ 2070–0012
721.9075 ........................................................ 2070–0012 721.9798 ........................................................ 2070–0012
721.9080 ........................................................ 2070–0012 721.9800 ........................................................ 2070–0012
721.9100 ........................................................ 2070–0012 721.9810 ........................................................ 2070–0012
721.9220 ........................................................ 2070–0012 721.9820 ........................................................ 2070–0012
721.9265 ........................................................ 2070–0012 721.9825 ........................................................ 2070–0012
721.9270 ........................................................ 2070–0012 721.9830 ........................................................ 2070–0012
721.9280 ........................................................ 2070–0012 721.9840 ........................................................ 2070–0012
721.9285 ........................................................ 2070–0012 721.9850 ........................................................ 2070–0012
721.9300 ........................................................ 2070–0012 721.9892 ........................................................ 2070–0012
721.9400 ........................................................ 2070–0012 721.9900 ........................................................ 2070–0012
721.9460 ........................................................ 2070–0012 721.9920 ........................................................ 2070–0012
721.9470 ........................................................ 2070–0038 721.9925 ........................................................ 2070–0012
721.9480 ........................................................ 2070–0012 721.9928 ........................................................ 2070–0012
721.9488 ........................................................ 2070–0012 721.9930 ........................................................ 2070–0038
721.9490 ........................................................ 2070–0012 721.9957 ........................................................ 2070–0038
721.9492 ........................................................ 2070–0012 721.9965 ........................................................ 2070–0012
721.9495 ........................................................ 2070–0012 721.9969 ........................................................ 2070–0012
721.9497 ........................................................ 2070–0012 721.9970 ........................................................ 2070–0012
721.9499 ........................................................ 2070–0012 721.9973 ........................................................ 2070–0012
721.9500 ........................................................ 2070–0012
721.9503 ........................................................ 2070–0012 Premanufacture Notification Exemptions
721.9505 ........................................................ 2070–0012
723.50 ............................................................ 2070–0012
721.9507 ........................................................ 2070–0012
723.175 .......................................................... 2070–0012
721.9508 ........................................................ 2070–0012
723.250(m)(1) ................................................ 2070–0012
721.9509 ........................................................ 2070–0012
721.9513 ........................................................ 2070–0012
Lead-Based Paint Poisioning Prevention in Certain
721.9515 ........................................................ 2070–0012
Residential Structures
721.9516 ........................................................ 2070–0012
721.9517 ........................................................ 2070–0012 Part 745, subpart E ....................................... 2070–0158
721.9518 ........................................................ 2070–0012 Part 745, subpart F ........................................ 2070–0151
721.9520 ........................................................ 2070–0012 Part 745, subpart L ........................................ 2070–0155
721.9526 ........................................................ 2070–0012 Part 745, subpart Q ....................................... 2070–0155
721.9527 ........................................................ 2070–0012
721.9530 ........................................................ 2070–0012 Water Treatment Chemicals
721.9540 ........................................................ 2070–0012
721.9545 ........................................................ 2070–0012 Part 749, subpart D ....................................... 2060–0193
721.9550 ........................................................ 2070–0012 749.68 ............................................................ 2060–0193
721.9570 ........................................................ 2070–0012
721.9573 ........................................................ 2070–0012 Polychlorinated Biphenyls (PCBs) Manufacturing, Proc-
721.9575 ........................................................ 2070–0012 essing, Distribution in Commerce, and Use Prohibi-
721.9576 ........................................................ 2070–0012 tions
721.9577 ........................................................ 2070–0012
721.9580 ........................................................ 2070–0038 761.20 ............................................................ 2070–0008,
721.9595 ........................................................ 2070–0012 2070–0021
721.9620 ........................................................ 2070–0012 761.30 ............................................................ 2070–0003,
721.9630 ........................................................ 2070–0012 2070–0008,
721.9635 ........................................................ 2070–0012 2070–0021
721.9650 ........................................................ 2070–0012 761.30(a)(1)(vi) and (xii) ................................ 2070–0159
721.9656 ........................................................ 2070–0012 761.30(h)(1)(ii) and (iii) .................................. 2070–0159
721.9657 ........................................................ 2070–0012 761.30(i) ......................................................... 2070–0159
721.9658 ........................................................ 2070–0012 761.30(t)(3) .................................................... 2070–0159
721.9659 ........................................................ 2070–0012 761.35 ............................................................ 2070–0159
721.9660 ........................................................ 2070–0038 761.40(k) and (l) ............................................ 2070–0159
150

No. No.
761.60 ............................................................ 2070–0011 790.45 ............................................................ 2070–0033

761.60(b)(5) ................................................... 2070–0159 790.50 ............................................................ 2070–0033
761.60(j) ......................................................... 2070–0159 790.55 ............................................................ 2070–0033
761.61 ............................................................ 2070–0159 790.60 ............................................................ 2070–0033
761.62 ............................................................ 2070–0159 790.62 ............................................................ 2070–0033
761.65 ............................................................ 2070–0112 790.68 ............................................................ 2070–0033
761.65(a)(2) – (4) .......................................... 2070–0159 790.80 ............................................................ 2070–0033
761.65(c)(1)(iv), (c)(5), (c)(6) and (c)(8) ........ 2070–0159 790.82 ............................................................ 2070–0033
761.65(g)(9) ................................................... 2070–0159 790.85 ............................................................ 2070–0033
761.65(j) ......................................................... 2070–0159 790.99 ............................................................ 2070–0033
761.70 ............................................................ 2070–0011
761.71 ............................................................ 2070–0159 Good Laboratory Practice Standards
761.72 ............................................................ 2070–0159
761.75 ............................................................ 2070–0011 Part 792 ......................................................... 2070–0004,
761.77 ............................................................ 2070–0159 2070–0017,
761.79(d) ........................................................ 2070–0159 2070–0033,
761.79(f) ......................................................... 2070–0159 2070–0054,
761.79(h) ........................................................ 2070–0159 2070–0067
761.80 ............................................................ 2070–0021
761.80(e) ........................................................ 2070–0159 Provisional Test Guidelines
761.80(i) ......................................................... 2070–0159
761.125 .......................................................... 2070–0112 795.45 ............................................................ 2070–0067
761.125(a)(1) ................................................. 2070–0159 795.232 .......................................................... 2070–0033
761.180 .......................................................... 2070–0112
761.180(a)(1)(iii) ............................................ 2070–0159 Identification of Specific Chemical Substance and Mixture
761.180(a)(2)(ix) ............................................ 2070–0159 Testing Requirements
761.180(a)(4) ................................................. 2070–0159
761.180(b)(1)(iii) ............................................ 2070–0159 799.1053 ........................................................ 2070–0033
761.180(b)(3) ................................................. 2070–0159 799.1250 ........................................................ 2070–0033
761.185 .......................................................... 2070–0008 799.1560 ........................................................ 2070–0033
761.187 .......................................................... 2070–0008 799.1575 ........................................................ 2070–0033
761.193 .......................................................... 2070–0008 799.1645 ........................................................ 2070–0033
761.202 .......................................................... 2070–0112 799.1700 ........................................................ 2070–0033
761.205 .......................................................... 2070–0112 799.2155 ........................................................ 2070–0033
761.205(f) ....................................................... 2070–0159 799.2325 ........................................................ 2070–0033
761.207 .......................................................... 2070–0112 799.2475 ........................................................ 2070–0033
761.207(a) ...................................................... 2050–0039 799.2500 ........................................................ 2070–0033
761.208 .......................................................... 2070–0112 799.2700 ........................................................ 2070–0033
761.209 .......................................................... 2070–0112 799.3300 ........................................................ 2070–0033
761.210 .......................................................... 2070–0112 799.4360 ........................................................ 2070–0033
761.211 .......................................................... 2070–0112 799.4440 ........................................................ 2070–0033
761.215 .......................................................... 2070–0112 799.5000 ........................................................ 2070–0033
761.218 .......................................................... 2070–0112 799.5025 ........................................................ 2070–0033
761.253 .......................................................... 2070–0159 799.5050 ........................................................ 2070–0033
761.274 .......................................................... 2070–0159 799.5055 ........................................................ 2070–0033
761.295 .......................................................... 2070–0159 799.5075 ........................................................ 2070–0033
761.314 .......................................................... 2070–0159
761.357 .......................................................... 2070–0159 Uniform National Discharge Standards for Vessels of the
761.359 .......................................................... 2070–0159 Armed Forces
761.395 .......................................................... 2070–0159
761.398 .......................................................... 2070–0159 1700.9–1700.12 ............................................. 2040–0187
1 The
ICRs referenced in this section of the table encom-
Asbestos pass the applicable general provisions contained in 40 CFR
part 60, subpart A, which are not independent information col-
Part 763, subpart E ....................................... 2070–0091 lection requirements.
Part 763, subpart G ....................................... 2070–0072 2 The ICRs referenced in this section of the table encom-
pass the applicable general provisions contained in 40 CFR
Dibenzo-para-dioxin/Dibenzofurans part 61, subpart A, which are not independent information col-
lection requirements.
3 The ICRs referenced in this section of the table encom-
766.35(b)(1) ................................................... 2070–0054
pass the applicable general provisions contained in 40 CFR
766.35(b)(2) ................................................... 2070–0054 part 63, subpart A, which are not independent information col-
766.35(b)(3) ................................................... 2070–0017 lection requirements.
766.35(b)(4)(iii) .............................................. 2070–0054
766.35(c)(1)(i) ................................................ 2070–0054
766.35(c)(1)(ii) ............................................... 2070–0054 [58 FR 27472, May 10, 1993]
766.35(c)(1)(iii) ............................................... 2070–0017 EDITORIAL NOTE: For Federal Register cita-
766.35(d) Form .............................................. 2070–0017
766.38 ............................................................ 2070–0054
tions affecting § 9.1 see the List of CFR Sec-
tions Affected in the Finding Aids section of
Procedures Governing Testing Consent Agreements and this volume.
Test Rules
EFFECTIVE DATE NOTE: At 64 FR 50610,
790.5 .............................................................. 2070–0033 Sept. 17, 2000, § 9.1 was amended by removing
790.42 ............................................................ 2070–0033 the entry for ‘‘141.33–141.35’’; revising the
151
entry for ‘‘141.40’’; and by adding entries for within the scope of his/her employ-
‘‘141.33–141.34’’ and ‘‘141.35’’, effective Jan. 1, ment.
2001. For the convenience of the user, the su-
perseded text is set forth as follows: [51 FR 25832, July 16, 1986]
§ 9.1 OMB approvals under the Paperwork

Reduction Act. Subpart B—Procedures
§ 10.2 Administrative claim; when pre-
* * * * * sented; place of filing.
OMB control (a) For purpose of the regulations in
40 CFR Citation No.
this part, a claim shall be deemed to
National Primary Drinking Water Regulations have been presented when the Environ-
141.33–141.35 ............................................... 2040–0090 mental Protection Agency receives, at
141.40 ............................................................ 2040–0090
a place designated in paragraph (c) of
* * * * * this section, an executed Standard
Form 95 or other written notification
of an incident accompanied by a claim
PART 10—ADMINISTRATIVE CLAIMS for money damages in a sum certain
UNDER FEDERAL TORT CLAIMS ACT for damage to or loss of property, for
personal injury, or for death, alleged to
Subpart A—General have occurred by reason of the inci-
dent. A claim which should have been
Sec.
presented to EPA, but which was mis-
10.1 Scope of regulations.
takenly addressed to or filed with an-
Subpart B—Procedures other Federal agency, shall be deemed
to be presented to EPA as of the date
10.2 Administrative claim; when presented; that the claim is received by EPA. A
place of filing. claim mistakenly addressed to or filed
10.3 Administrative claims; who may file.
with EPA shall forthwith be trans-
10.4 Evidence to be submitted.
10.5 Investigation, examination, and deter-
ferred to the appropriate Federal agen-
mination of claims. cy, if ascertainable, or returned to the
10.6 Final denial of claim. claimant.
10.7 Payment of approved claim. (b) A claim presented in compliance
10.8 Release. with paragraph (a) of this section may
10.9 Penalties. be amended by the claimant at any
10.10 Limitation on Environmental Protec- time prior to final action by the Ad-
tion Agency’s authority. ministrator, or his designee, or prior to
10.11 Relationship to other agency regula-
the exercise of the claimant’s option to
tions.
bring suit under 28 U.S.C. 2675(a).
AUTHORITY: Sec. 1, 80 Stat. 306; 28 U.S.C. Amendments shall be submitted in
2672; 28 CFR part 14. writing and signed by the claimant or
SOURCE: 38 FR 16868, June 27, 1973, unless his duly authorized agent or legal rep-
otherwise noted. resentative. Upon the timely filing of
an amendment to a pending claim,
Subpart A—General EPA shall have 6 months in which to
make a final disposition of the claim as
§ 10.1 Scope of regulations. amended and the claimant’s option
The regulations in this part apply under 28 U.S.C. 2675(a) shall not accrue
only to claims asserted under the Fed- until 6 months after the filing of an
eral Tort Claims Act, as amended, 28 amendment.
U.S.C. 2671–2680, for money damages (c) Forms may be obtained and
against the United States because of claims may be filed with the EPA of-
damage to or loss of property or per- fice having jurisdiction over the em-
sonal injury or death, caused by the ployee involved in the accident or inci-
negligent or wrongful act or omission dent, or with the EPA Claims Officer,
of any employee of the Environmental Office of General Counsel (LE–132G),
Protection Agency (EPA) while acting
152
401 M Street SW., Washington, DC (if any), and the duration of his last
20460. employment or occupation.
[38 FR 16868, June 27, 1973, as amended at 51 (3) Full names, addresses, birth dates,
FR 25832, July 16, 1986] kinship, and marital status of the dece-
dent’s survivors, including identifica-
§ 10.3 Administrative claims; who may tion of those survivors who were de-
file. pendent for support upon the decedent
(a) A claim for injury to or loss of at the time of his death.
property may be presented by the (4) Degree of support afforded by the
owner of the property interest which is decendent to each survivor dependent
the subject of the claim, his duly au- upon him for support at the time of his
thorized agent, or his legal representa- death.
tive. (5) Decedent’s general physical and
(b) A claim for personal injury may mental condition before death.
be presented by the injured person, his (6) Itemized bills for medical and bur-
duly authorized agent, or his legal rep- ial expenses incurred by reason of the
resentative. incident causing death, or itemized re-
(c) A claim based on death may be ceipts of payments for such expenses.
presented by the executor or adminis-
(7) If damages for pain and suffering
trator of the decedent’s estate or by
prior to death are claimed, a physi-
any other person legally entitled to as-
cian’s detailed statement specifying
sert such a claim under applicable
State law. the injuries suffered, duration of pain
(d) A claim for loss wholly com- and suffering, any drugs administered
pensated by an insurer with the rights for pain and the decedent’s physical
of a subrogee may be presented by the condition in the interval between in-
insurer. A claim for loss partially com- jury and death.
pensated by an insurer with the rights (8) Any other evidence or information
of a subrogee may be presented by the which may have a bearing on either the
insurer or the insured individually as responsibility of the United States for
their respective interests appear, or the death or the damages claimed.
jointly. Whenever an insurer presents a (b) Personal Injury. In support of a
claim asserting the rights of a claim for personal injury, including
subrogee, he shall present with his pain and suffering, the claimant may
claim appropriate evidence that he has be required to submit the following
the rights of a subrogee. evidence or information:
(e) A claim presented by an agent or (1) A written report by his attending
legal representative shall be presented physician or dentist setting forth the
in the name of the claimant, be signed nature and extent of the injury, nature
by the agent or legal representative, and extent of treatment, any degree of
show the title or legal capacity of the temporary or permanent disability, the
person signing, and be accompanied by prognosis, period of hospitalization,
evidence of his authority to present a and any diminished earning capacity.
claim on behalf of the claimant as In addition, the claimant may be re-
agent, executor, administrator, parent, quired to submit to a physical or men-
guardian, or other representative. tal examination by a physician em-
ployed or designated by EPA. A copy of
§ 10.4 Evidence to be submitted. the report of the examining physician
(a) Death. In support of a claim based shall be made available to the claimant
on death, the claimant may be required upon the claimant’s written request
to submit the following evidence or in- provided that the claimant has, upon
formation: request, furnished the report referred
(1) An authenticated death certifi- to in the first sentence of this subpara-
cate or other competent evidence show- graph and has made or agrees in writ-
ing cause of death, date of death, and ing to make available to EPA any
age of the decedent. other physician’s reports previously or
(2) Decedent’s employment or occu- thereafter made of the physical or
pation at time of death, including his mental condition which is the subject
monthly or yearly salary or earnings matter of his claim.
153
§ 10.5 40 CFR Ch. I (7–1–00 Edition)
(2) Itemized bills for medical, dental, § 10.5 Investigation, examination, and
hospital and related expenses incurred, determination of claims.
or itemized receipts of payment for The EPA Claims Officer adjusts, de-
such expenses. termines, compromises and settles all
(3) If the prognosis reveals the neces- administrative tort claims filed with
sity for future treatment, a statement EPA. In carrying out these functions,
of expected duration of and expenses the EPA Claims Officer makes such in-
for such treatment. vestigations as are necessary for a de-
(4) If a claim is made for loss of time termination of the validity of the
from employment, a written statement claim. The decision of the EPA Claims
from his employer showing actual time Officer is a final agency decision of
lost from employment, whether he is a purposes of 28 U.S.C. 2675.
full or part-time employee, and wages
or salary actually lost. [51 FR 25832, July 16, 1986]
(5) If a claim is made for loss of in-
come and the claimant is self-em- § 10.6 Final denial of claim.
ployed, documentary evidence showing (a) Final denial of an administrative
the amount of earnings actually lost. claim shall be in writing and sent to
(6) Any other evidence or information the claimant, his attorney, or legal
which may have a bearing on the re- representative by certified or reg-
sponsibility of the United States for ei- istered mail. The notification of final
ther the personal injury or the dam- denial may include a statement of the
ages claimed. reasons for the denial and shall include
(c) Property Damage. In support of a a statement that, if the claimant is
claim for damage to or loss of property, dissatisfied with EPA’s action, he may
real or personal, the claimant may be file suit in an appropriate U.S. District
required to submit the following evi- Court not later than 6 months after the
dence or information: date of mailing of the notification.
(1) Proof of ownership. (b) Prior to the commencement of
(2) A detailed statement of the suit and prior to the expiration of the
amount claimed with respect to each 6-month period after the date of mail-
item of property. ing by certified or registered mail of
(3) An itemized receipt of payment notice of final denial of the claim as
for necessary repairs or itemized writ- provided in 28 U.S.C. 2401(b), a claim-
ten estimates of the cost of such re- ant, his duly authorized agent, or legal
pairs. representative, may file a written re-
(4) A statement listing date of pur- quest with the EPA for reconsideration
chase, purchase price, market value of of a final denial of a claim under para-
the property as of date of damage, and graph (a) of this section. Upon the
salvage value, where repair is not eco- timely filing of a request for reconsid-
nomical. eration, EPA shall have 6 months from
(5) Any other evidence or information the date of filing in which to make a
which may have a bearing on the re- final disposition of the claim and the
sponsibility of the United States either claimant’s option under 28 U.S.C.
for the injury to or loss of property or 2675(a) to bring suit shall not accrue
for the damage claimed. until 6 months after the filing of a re-
(d) Time limit. All evidence required quest for reconsideration. Final action
to be submitted by this section shall be on a request for reconsideration shall
furnished by the claimant within a rea- be effected in accordance with the pro-
sonable time. Failure of a claimant to visions of paragraph (a) of this section.
furnish evidence necessary to a deter-
mination of his claim within three § 10.7 Payment of approved claim.
months after a request therefor has (a) Upon allowance of his claim,
been mailed to his last known address claimant or his duly authorized agent
may be deemed an abandonment of the shall sign the voucher for payment,
claim. The claim may be thereupon Standard Form 1145, before payment is
disallowed. made.
154
(b) When the claimant is represented (1) A new precedent or a new point of
by an attorney, the voucher for pay- law is involved; or
ment (SF 1145) shall designate both the (2) A question of policy is or may be
claimant and his attorney as ‘‘payees.’’ involved; or
The check shall be delivered to the at- (3) The United States is or may be
torney whose address shall appear on entitled to indemnity or contribution
the voucher. from a third party and the Agency is
(c) No attorney shall charge fees in unable to adjust the third party claim;
excess of 25 percent of a judgment or or
settlement after litigation, or in excess (4) The compromise of a particular
of 20 percent of administrative settle- claim, as a practical matter, will or
ments (28 U.S.C. 2678). may control the disposition of a re-
lated claim in which the amount to be
§ 10.8 Release. paid may exceed $25,000.
Acceptance by the claimant, his (c) An administrative claim may be
agent or legal representative of any adjusted, determined, compromised, or
award, compromise or settlement made settled by EPA hereunder only after
hereunder, shall be final and conclusive consultation with the Department of
on the claimant, his agent or legal rep- Justice when EPA is informed or is
resentative and any other person on otherwise aware that the United States
whose behalf or for whose benefit the or an employee, agent, or cost-plus
claim has been presented, and shall contractor of the United States is in-
constitute a complete release of all volved in litigation based on a claim
claims against either the United States arising out of the same incident or
or any employee of the Government transaction.
arising out of the same subject matter. § 10.11 Relationship to other agency
regulations.
§ 10.9 Penalties.
The regulations in this part supple-
A person who files a false claim or ment the Attorney General’s regula-
makes a false or fraudulent statement tions in part 14 of chapter 1 of title 28,
in a claim against the United States CFR, as amended. Those regulations,
may be liable to a fine of not more including subsequent amendments
than $10,000 or to imprisonment of not thereto, and the regulations in this
more than 5 years, or both (18 U.S.C. part apply to the consideration by the
287,1001), and, in addition, to a for- Environmental Protection Agency of
feiture of $2,000 and a penalty of double administrative claims under the Fed-
the loss or damage sustained by the eral Tort Claims Act.
United States (31 U.S.C. 3729).
[38 FR 16868, June 27, 1973, as amended at 51 FR 25832, July 16, 1986]
FR 25832, July 16, 1986]
§ 10.10 Limitation on Environmental PART 11—SECURITY CLASSIFICA-

Protection Agency’s authority. TION REGULATIONS PURSUANT
(a) An award, compromise or settle- TO EXECUTIVE ORDER 11652
ment of a claim hereunder in excess of
$25,000 shall be effected only with the Sec.
11.1 Purpose.
prior written approval of the Attorney
11.2 Background.
General or his designee. For the pur- 11.3 Responsibilities.
poses of this paragraph, a principal 11.4 Definitions.
claim and any derivative or subrogated 11.5 Procedures.
claim shall be treated as a single 11.6 Access by historical researchers and
claim. former Government officials.
(b) An administrative claim may be AUTHORITY: Executive Order 11652 (37 FR
adjusted, determined, compromised or 5209, March 10, 1972) and the National Secu-
settled hereunder only after consulta- rity Directive of May 17, 1972 (37 FR 10053,
tion with the Department of Justice May 19, 1972).
when, in the opinion of the Environ- SOURCE: 37 FR 23541, Nov. 4, 1972, unless
mental Protection Agency: otherwise noted.
155
§ 11.1 40 CFR Ch. I (7–1–00 Edition)
§ 11.1 Purpose. agement and direction of a program de-

These regulations establish policy signed to assure the proper handling
and procedures governing the classi- and protection of classified informa-
fication and declassification of nation, and that classified information in
tional security information. They the Agency’s possession bears the ap-
apply also to information or material propriate classification markings. He
designated under the Atomic Energy also will assure that the program oper-
Act of 1954, as amended, as ‘‘Restricted ates in accordance with the policy es-
Data,’’ or ‘‘Formerly Restricted Data’’ tablished herein, and will serve as Sec-
which, additionally, is subject to the retary of the Classification and Declas-
provisions of the Act and regulations of sification Committee.
the Atomic Energy Commission. (c) Assistant Administrators, Re-
gional Administrators, Heads of Staff
§ 11.2 Background. Offices, Directors of National Environ-
While the Environmental Protection mental Research Centers are respon-
Agency does not have the authority to sible for designating an official within
originally classify information or ma- their respective areas who shall be re-
terial in the interest of the national se- sponsible for:
curity, it may under certain cir- (1) Serving as that area’s liaison with
cumstances downgrade or declassify the Director, Security and Inspection
previously classified material or gen- Division, for questions or suggestions
erate documents incorporating classi- concerning security classification mat-
fied information properly originated by ters.
other agencies of the Federal Govern- (2) Reviewing and approving, as the
ment which must be safeguarded. representative of the contracting of-
Agency policy and procedures must fices, the DD Form 254, Contract Secu-
conform to applicable provisions of Ex- rity Classification Specification, issued
ecutive Order 11652, and the National to contractors.
Security Council Directive of May 17, (d) Employees; (1) Those employees
1972, governing the safeguarding of na- generating documents incorporating
tional security information. classified information properly origi-
nated by other agencies of the Federal
§ 11.3 Responsibilities. Government are responsible for assur-
(a) Classification and Declassifica- ing that the documents are marked in
tion Committee: This committee, ap- a manner consistent with security clas-
pointed by the Administrator, has the sification assignments.
authority to act on all suggestions and (2) Those employees preparing infor-
complaints with respect to EPA’s ad- mation for public release are respon-
ministration of this order. It shall es- sible for assuring that such informa-
tablish procedures to review and act tion is reviewed to eliminate classified
within 30 days upon all applications information.
and appeals regarding requests for de- (3) All employees are responsible for
classification. The Administrator, act- bringing to the attention of the Direc-
ing through the committee, shall be tor, Security and Inspection Division,
authorized to overrule previous deter- any security classification problems
minations in whole or in part when, in needing resolution.
its judgment, continued protection is
no longer required. If the committee § 11.4 Definitions.
determines that continued classifica- (a) Classified information. Official in-
tion is required under section 5(B) of formation which has been assigned a
Executive Order 11652, it shall prompt- security classification category in the
ly so notify the requester and advise interest of the national defense or for-
him that he may appeal the denial to eign relations of the United States.
the Interagency Classification Review (b) Classified material. Any document,
Committee. apparatus, model, film, recording, or
(b) Director, Security and Inspection any other physical object from which
Division, Office of Administration: The classified information can be derived
Director, Security and Inspection Divi- by study, analysis, observation, or use
sion, is responsible for the overall man- of the material involved.
156
(c) Marking. The act of physically in- curity; revelation of significant mili-
dicating the classification assignment tary plans or intelligence operations;
on classified material. and compromise of scientific or techno-
(d) National security information. As logical developments relating to na-
used in this order this term is synony- tional security. The classification Se-
mous with ‘‘classified information.’’ It cret shall be sparingly used.
is any information which must be pro- (3) Confidential. Confidential refers to
tected against unauthorized disclosure that national security information or
in the interest of the national defense material which requires protection.
or foreign relations of the United The test for assigning Confidential
States. classification shall be whether its un-
(e) Security classification assignment. authorized disclosure could reasonably
The prescription of a specific security
be expected to cause damage to the na-
classification for a particular area or
tional security.
item of information. The information
involved constitutes the sole basis for § 11.5 Procedures.
determining the degree of classifica-
tion assigned. (a) General. Agency instructions on
(f) Security classification category. The access, marking, safekeeping, account-
specific degree of classification (Top ability, transmission, disposition, and
Secret, Secret or Confidential) as- destruction of classification informa-
signed to classified information to in- tion and material will be found in the
dicate the degree of protection re- EPA Security Manual for Safeguarding
quired. Classified Material. These instructions
(1) Top Secret. Top Secret refers to shall conform with the National Secu-
national security information or mate- rity Council Directive of May 17, 1972,
rial which requires the highest degree governing the classification, down-
of protection. The test for assigning grading, declassification, and safe-
Top Secret classification shall be guarding of National Security Informa-
whether its unauthorized disclosure tion.
could reasonably be expected to cause (b) Classification. (1) When informa-
exceptionally grave damage to the nation or material is originated within
tional security. Examples of ‘‘excep- EPA and it is believed to require classi-
tionally grave damage’’ include armed fication, the person or persons respon-
hostilities against the United States or sible for its origination shall protect it
its allies; disruption of foreign rela- in the manner prescribed for protection
tions vitally affecting the national se- of classified information. The informa-
curity; the compromise of vital nation will then be transmitted under ap-
tional defense plans or complex propriate safeguards to the Director,
cryptologic and communications intel-
Security and Inspection Division, who
ligence systems; the revelation of sen-
will forward it to the department hav-
sitive intelligence operations; and the
ing primary interest in it with a re-
disclosure of scientific or technological
quest that a classification determina-
developments vital to national secu-
tion be made.
rity. This classification shall be used
with the utmost restraint. (2) A holder of information or mate-
(2) Secret. Secret refers to that na- rial which incorporates classified infor-
tional security information or material mation properly originated by other
which requires a substantial degree of agencies of the Federal Government
protection. The test for assigning Se- shall observe and respect the classifica-
cret classification shall be whether its tion assigned by the originator.
unauthorized disclosure could reason- (3) If a holder believes there is unnec-
ably be expected to cause serious dam- essary classification, that the assigned
age to the national security. Examples classification is improper, or that the
of ‘‘serious damage’’ include disruption document is subject to declassification,
of foreign relations significantly af- he shall so advise the Director, Secu-
fecting the national security; signifi- rity and Inspection Division, who will
cant impairment of a program or pol- be responsible for obtaining a resolu-
icy directly related to the national se- tion.
157
§ 11.5 40 CFR Ch. I (7–1–00 Edition)
(c) Downgrading and declassification. amended, shall be excluded from the

Classified information and material of- General Declassification Schedule.
ficially transferred to the Agency dur- However, at any time after the expira-
ing its establishment, pursuant to Re- tion of 10 years after the date of origin
organization Plan No. 3 of 1970, shall be it shall be subject to a mandatory clas-
declassified in accordance with proce- sification review and disposition in ac-
dures set forth below. Also, the same cordance with the following criteria
procedures will apply to the declas- and conditions:
sification of any information in the (i) It shall be declassified unless it
Agency’s possession which originated falls within one of the following cri-
in departments or agencies which no teria:
longer exist, except that no declas- (a) Classified information or material
sification will occur in such cases until furnished by foreign governments or
other departments having an interest international organizations and held
in the subject matter have been con-
by the United States on the under-
sulted. Other classified information in
standing that it be kept in confidence.
the Agency’s possession may be down-
graded or declassified by the official (b) Classified information or material
authorizing its classification, by a suc- specifically covered by statute, or per-
cessor in capacity, or by a supervisory taining to cryptography, or disclosing
official of either. intelligence sources or methods.
(1) General Declassification Schedule— (c) Classified information or material
(i) Top Secret. Information or material disclosing a system, plan, installation,
originally classified Top Secret shall project, or specific foreign relations
become automatically downgraded to matter, the continuing protection of
Secret at the end of the second full cal- which is essential to the national secu-
endar year following the year in which rity.
it was originated, downgraded to Con- (d) Classified information or material
fidential at the end of the fourth full the disclosure of which would place a
calendar year following the year in person in immediate jeopardy.
which it was originated, and declas- (ii) Mandatory review of exempted ma-
sified at the end of the 10th full cal- terial. All classified information and
endar year following the year in which material originated after June 1, 1972,
it was originated. which is exempted under any of the
(ii) Secret. Information and material above criteria shall be subject to a
originally classified Secret shall be- classification review by the originating
come automatically downgraded to department at any time after the expi-
Confidential at the end of the second ration of 10 years from the date of ori-
full calendar year following the year in gin provided:
which it was originated, and declas- (a) A department or member of the
sified at the end of the eighth full cal- public requests a review;
endar year following the year in which (b) The request describes the docu-
it was originated.
ment or record with sufficient particu-
(iii) Confidential. Information and
larity to enable the department to
material originally classified Confiden-
identify it; and
tial shall become automatically declas-
sified at the end of the sixth full cal- (c) The record can be obtained with a
endar year following the year in which reasonable amount of effort.
it was originated. (d) Information or material which no
(2) Exemption from the General Declas- longer qualifies for exemption under
sification Schedule. Information or ma- any of the above criteria shall be de-
terial classified before June 1, 1972, as- classified. Information or material
signed to Group 4 under Executive which continues to qualify under any
Order No. 10501, as amended, shall be of the above criteria shall be so
subject to the General Declassification marked, and, unless impossible, a date
Schedule. All other information or ma- for automatic declassification shall be
terial classified before June 1, 1972, set.
whether or not assigned to Groups 1, 2, (iii) All requests for ‘‘mandatory re-
or 3, of Executive Order No. 10501, as view’’ shall be directed to:
158
Director, Security and Inspection Division, (1) Determine that access is clearly
Environmental Protection Agency, Wash- consistent with the interests of the na-
ington, DC 20460. tional security; and
The Director, Security and Inspection (2) Take appropriate steps to assure
Division shall promptly notify the ac- that classified information or material
tion office of the request, and the ac- is not published or otherwise com-
tion office shall immediately acknowl- promised.
edge receipt of the request in writing. (b) Access granted a person by reason
(iv) Burden of proof for administrative of his having previously occupied a pol-
determinations. The burden of proof is icymaking position shall be limited to
on the originating Agency to show that those papers which the former official
continued classification is warranted originated, reviewed, signed, or re-
within the terms of this paragraph ceived while in public office, except as
(c)(2). related to the ‘‘Declassification of
(v) Availability of declassified material. Presidential Papers,’’ which shall be
Upon a determination under paragraph treated as follows:
(ii) of this paragraph (c)(2), that the re- (1) Declassification of Presidential Pa-
quested material no longer warrants pers. The Archivist of the United
classification, it shall be declassified States shall have authority to review
and made promptly available to the re- and declassify information and mate-
quester, if not otherwise exempt from rial which has been classified by a
disclosure under section 552(b) of Title President, his White House Staff or
5 U.S.C. (Freedom of Information Act) special committee or commission ap-
or other provision of law. pointed by him and which the Archi-
(vi) Classification review requests. As vist has in his custody at any archival
required by paragraph (ii) of this para- depository, including a Presidential li-
graph (c)(2) of this order, a request for brary. Such declassification shall only
classification review must describe the be undertaken in accord with:
document with sufficient particularity (i) The terms of the donor’s deed of
to enable the Department or Agency to gift;
identify it and obtain it with a reason- (ii) Consultations with the Depart-
able amount of effort. Whenever a re- ments having a primary subject-matter
quest is deficient in its description of interest; and
the record sought, the requester should (iii) The provisions of § 11.5(c).
be asked to provide additional identi- (2) [Reserved]
fying information whenever possible.
Before denying a request on the ground PART 12—NONDISCRIMINATION
that it is unduly burdensome, the re- ON THE BASIS OF HANDICAP IN
quester should be asked to limit his re- PROGRAMS OR ACTIVITIES CON-
quest to records that are reasonably DUCTED BY THE ENVIRONMENTAL
obtainable. If nonetheless the requester PROTECTION AGENCY
does not describe the records sought
with sufficient particularity, or the Sec.
record requested cannot be obtained 12.101 Purpose.
with a reasonable amount of effort, the 12.102 Application.
requester shall be notified of the rea- 12.103 Definitions.
sons why no action will be taken and of 12.104–12.109 [Reserved]
12.110 Self-evaluation.
his right to appeal such decision.
12.111 Notice.
12.112–12.129 [Reserved]
§ 11.6 Access by historical researchers
12.130 General prohibitions against dis-
and former Government officials.
crimination.
(a) Access to classified information 12.131–12.139 [Reserved]
or material may be granted to histor- 12.140 Employment.
ical researchers or to persons who for- 12.141–12.148 [Reserved]
12.149 Program accessibility: Discrimina-
merly occupied policymaking positions
tion prohibited.
to which they were appointed by the 12.150 Program accessibility: Existing fa-
President: Provided, however, That in cilities.
each case the head of the originating 12.151 Program accessibility: New construc-
Department shall: tion and alterations.
159
§ 12.101 40 CFR Ch. I (7–1–00 Edition)
12.152–12.159 [Reserved] Complete complaint means a written
12.160 Communications. statement that contains the complain-
12.161–12.169 [Reserved]
ant’s name and address and describes
12.170 Compliance procedures.
12.171–12.999 [Reserved] the agency’s alleged discriminatory ac-
tion in sufficient detail to inform the
AUTHORITY: 29 U.S.C. 794. agency of the nature and date of the al-
SOURCE: 52 FR 30606, Aug. 14, 1987, unless leged violation of section 504. It shall
otherwise noted. be signed by the complainant or by
someone authorized to do so on his or
§ 12.101 Purpose.
her behalf. Complaints filed on behalf
The purpose of this part is to effec- of classes or third parties shall describe
tuate section 119 of the Rehabilitation, or identify (by name, if possible) the
Comprehensive Services, and Develop- alleged victims of discrimination.
mental Disabilities Amendments of Facility means all or any portion of
1978, which amended section 504 of the buildings, structures, equipment,
Rehabilitation Act of 1973 to prohibit roads, walks, parking lots, rolling
discrimination on the basis of handicap stock or other conveyances, or other
in programs or activities conducted by real or personal property.
Executive agencies or the U.S. Postal Individual with handicaps means any
Service. Section 504 regulations appli- person who has a physical or mental
cable to recipients of financial assist-
impairment that substantially limits
ance from the Environmental Protec-
one or more major life activities, has a
tion Agency (EPA) may be found at 40
record of such an impairment, or is re-
CFR part 7 (1986).
garded as having such an impairment.
§ 12.102 Application. As used in this definition, the phrase:
(1) Physical or mental impairment in-
This part applies to all programs or
cludes—
activities conducted by the agency, ex-
cept for programs or activities con- (i) Any physiological disorder or con-
ducted outside the United States that dition, cosmetic disfigurement, or ana-
do not involve individuals with handi- tomical loss affecting one or more of
caps in the United States. the following body systems: Neuro-
logical; musculoskeletal; special sense
§ 12.103 Definitions. organs; respiratory, including speech
For purposes of this part, the term— organs; cardiovascular; reproductive,
Agency means Environmental Protec- digestive, genitourinary; hemic and
tion Agency. lymphatic; skin, and endocrine; or
Assistant Attorney General means the (ii) Any mental or psychological dis-
Assistant Attorney General, Civil order, such as mental retardation, or-
Rights Division, U.S. Department of ganic brain syndrome, emotional or
Justice. mental illness, and specific learning
Auxiliary aids means services or de- disabilities. The term physical or mental
vices that enable persons with im- impairment includes, but is not limited
paired sensory, manual, or speaking to, such diseases and conditions as or-
skills to have an equal opportunity to thopedic, visual, speech, and hearing
participate in, and enjoy the benefits impairments, cerebral palsy, epilepsy,
of, programs or activities conducted by muscular dystrophy, multiple sclerosis,
the agency. For example, auxiliary aids cancer, heart disease, diabetes, mental
useful for persons with impaired vision retardation, emotional illness, and
include readers, Brailled materials, drug addiction and alcoholism.
audio recordings, and other similar (2) Major life activities includes func-
services and devices. Auxiliary aids tions such as caring for one’s self, per-
useful for persons with impaired hear- forming manual tasks, walking, seeing,
ing include telephone handset ampli- hearing, speaking, breathing, learning,
fiers, telephones compatible with hear- and working.
ing aids, telecommunication devices (3) Has a record of such an impairment
for deaf persons (TDD’s), interpreters, means has a history of, or has been
notetakers, written materials, and misclassified as having, a mental or
other similar services and devices. physical impairment that substantially
160
limits one or more major life activi- §§ 12.104–12.109 [Reserved]

ties.
(4) Is regarded as having an impairment § 12.110 Self-evaluation.
means— (a) The agency shall, by November 13,
(i) Has a physical or mental impair-
1987, begin a nationwide evaluation, of
ment that does not substantially limit
major life activities but is treated by its current policies and practices, and
the agency as constituting such a limi- the effects thereof, that do not or may
tation; not meet the requirements of this part.
(ii) Has a physical or mental impair- The agency shall provide an oppor-
ment that substantially limits major tunity to interested persons, including
life activities only as a result of the at- individuals with handicaps or organiza-
titudes of others toward such impair- tions representing individuals with
ment; or handicaps to, participate in the self-
(iii) Has none of the impairments de- evaluation process by submitting com-
fined in subparagraph (1) of this defini- ments (both oral and written).
tion but is treated by the agency as (b) The evaluation shall be concluded
having such an impairment. by September 14, 1988, with a written
Qualified individual with handicaps report submitted to the Administrator
means— that states the findings of the self-eval-
(1) With respect to any agency pro- uation, any remedial action taken, and
gram or activity under which a person recommendations, if any, for further
is required to perform services or to
remedial action.
achieve a level of accomplishment, an
(c) The Administrator shall, within
individual with handicaps who meets
the essential eligibility requirements 60 days of the receipt of the report of
and who can achieve the purpose of the the evaluation and recommendations,
program or activity, without modifica- direct that certain remedial actions be
tions in the program or activity that taken as he/she deems appropriate.
the agency can demonstrate would re- (d) The agency shall, for at least
sult in a fundamental alteration in its three years following completion of the
nature; or evaluation required under paragraph
(2) With respect to any other pro- (b) of this section, maintain on file and
gram or activity an individual with make available for public inspection:
handicaps who meets the essential eli- (1) A list of the interested persons
gibility requirements for participation consulted;
in, or receipt of benefits from, that pro- (2) A description of the areas exam-
gram or activity. ined and any problems identified; and
(3) Qualified handicapped person as (3) A description of any modifications
that term is defined for purposes of em- made.
ployment in 29 CFR 1613.702(f), which is
made applicable to this part by § 12.140. § 12.111 Notice.
Section 504 means section 504 of the
Rehabilitation Act of 1973 (Pub. L. 93– The agency shall make available to
112, 87 Stat. 394 (29 U.S.C. 794)), as employees, unions representing em-
amended by the Rehabilitation Act ployees, applicants, participants, bene-
Amendments of 1974 (Pub. L. 93–516, 88 ficiaries, and other interested persons
Stat. 1617); and the Rehabilitation, such information regarding the provi-
Comprehensive Services, and Develop- sions of this part and its applicability
mental Disabilities Amendments of to the programs or activities conducted
1978 (Pub. L. 95–602, 92 Stat. 2955); and by the agency, and make such informa-
the Rehabilitation Act Amendments of tion available to them in such manner
1986 (Pub. L. 99–506, 100 Stat. 1810). As as the agency head finds necessary to
used in this part, section 504 applies apprise such persons of the protections
only to programs or activities con- against discrimination assured them
ducted by Executive agencies and not by section 504 and this regulation.
to federally assisted programs.
161
§§ 12.112–12.129 40 CFR Ch. I (7–1–00 Edition)
§§ 12.112–12.129 [Reserved] ments, utilize criteria or methods of

administration the purpose or effect of
§ 12.130 General prohibitions against which would—
discrimination. (i) Subject qualified individuals with
(a) No qualified individual with handicaps to discrimination on the
handicaps shall, on the basis of handi- basis of handicap; or
cap, be excluded from participation in, (ii) Defeat or substantially impair ac-
be denied the benefits of, or otherwise complishment of individuals with
be subjected to discrimination under handicaps.
any program or activity conducted by
(4) The agency may not, in deter-
the agency.
(b)(1) The agency, in providing any mining the site or location of a facil-
aid, benefit, or service, may not, di- ity, make selections the purpose or ef-
rectly or through contractual, licens- fect of which would—
ing, or other arrangements, on the (i) Exclude individuals with handi-
basis of handicap— caps from, deny them the benefits of,
(i) Deny a qualified individual with or otherwise subject them to discrimi-
handicaps the opportunity to partici- nation under any program or activity
pate in or benefit from the aid, benefit, conducted by the agency; or
or service; (ii) Defeat or substantially impair
(ii) Afford a qualified individual with the accomplishment of the objectives
handicaps an opportunity to partici- of a program or activity with respect
pate in or benefit from the aid, benefit, to individuals with handicaps.
or service that is not equal to that af- (5) The agency, in the selection of
forded others;
procurement contractors, may not use
(iii) Provide a qualified individual
with handicaps with an aid, benefit, or criteria that subject qualified individ-
service that is not as effective in af- uals with handicaps to discrimination
fording equal opportunity to obtain the on the basis of handicap.
same result, to gain the same benefit, (6) The agency may not administer a
or to reach the same level of achieve- licensing or certification program in a
ment as that provided to others; manner that subjects qualified individ-
(iv) Provide different or separate aid, uals with handicaps to discrimination
benefits, or services to individuals with on the basis of handicap, nor may the
handicaps or to any class of individuals agency establish requirements for the
with handicaps than is provided to oth- programs or activities of licensees or
ers unless such action is necessary to certified entities that subject qualified
provide qualified individuals with individuals with handicaps to discrimi-
handicaps with aid, benefits, or serv- nation on the basis of handicap. How-
ices that are as effective as those pro- ever, the program or activities of enti-
vided to others; ties that are licensed or certified by
(v) Deny a qualified individual with
the agency are not, themselves, cov-
handicaps the opportunity to partici-
ered by this part.
pate as a member of planning or advi-
sory boards; or (c) The exclusion of nonhandicapped
(vi) Otherwise limit a qualified indi- persons from the benefits of a program
vidual with handicaps in the enjoy- limited by Federal statute or Execu-
ment of any right, privilege, advan- tive order to individuals with handi-
tage, or opportunity enjoyed by others caps or the exclusion of a specific class
receiving the aid, benefit, or service. of individuals with handicaps from a
(2) The agency may not deny a quali- program limited by Federal statute or
fied individual with handicaps the op- Executive order to a different class of
portunity to participate in programs or individuals with handicaps is not pro-
activities that are not separate or dif- hibited by this part.
ferent, despite the existence of permis- (d) The agency shall administer pro-
sibly separate or different programs or grams and activities in the most inte-
activities. grated setting appropriate to the needs
(3) The agency may not, directly or of qualified individuals with handicaps.
through contractual or other arrange-
162
§§ 12.131–12.139 [Reserved] agency head or designee after consid-

ering all agency resources available for
§ 12.140 Employment. use in the funding and operation of the
No qualified individual with handi- conducted program or activity, and
caps shall, on the basis of handicap, be must be accompanied by a written
subjected to discrimination in employ- statement of the reasons for reaching
ment under any program or activity that conclusion. If an action would re-
conducted by the agency. The defini- sult in such an alteration or such bur-
tions, requirements, and procedures of dens, the agency shall take any other
section 501 of the Rehabilitation Act of action that would not result in such an
1973 (29 U.S.C. 791), as established by alteration or such burdens but would
the Equal Employment Opportunity nevertheless ensure that individuals
Commission in 29 CFR part 1613, shall with handicaps receive the benefits and
apply to employment in federally con- services of the program or activity.
ducted programs or activities. (b) Methods. The agency may comply
with the requirements of this section
§§ 12.141–12.148 [Reserved]
through such means as redesign of
§ 12.149 Program accessibility: Dis- equipment, reassignment of services to
crimination prohibited. accessible buildings, assignment of
Except as otherwise provided in aides to beneficiaries, home visits, de-
§ 12.150, no qualified individual with livery of services at alternate acces-
handicaps shall, because the agency’s sible sites, alteration of existing facili-
facilities are inaccessible to or unus- ties and construction of new facilities,
able by individuals with handicaps, be use of accessible rolling stock, or any
denied the benefits of, be excluded from other methods that result in making
participation in, or otherwise be sub- its programs or activities readily ac-
jected to discrimination under any pro- cessible to and usable by individuals
gram or activity conducted by the with handicaps. The agency is not re-
agency. quired to make structural changes in
existing facilities where other methods
§ 12.150 Program accessibility: Exist- are effective in achieving compliance
ing facilities. with this section. The agency, in mak-
(a) General. The agency shall operate ing alterations to existing buildings,
each program or activity so that the shall meet accessibility requirements
program or activity, when viewed in its to the extent compelled by the Archi-
entirety, is readily accessible to and tectural Barriers Act of 1968, as amend-
usable by individuals with handicaps. ed (42 U.S.C. 4151–4157), and any regula-
This paragraph does not— tions implementing it. In choosing
(1) Necessarily require the agency to among available methods for meeting
make each of its existing facilities ac- the requirements of this section, the
cessible to and usable by individuals agency shall give priority to those
with handicaps; or methods that offer programs and ac-
(2) Require the agency to take any
tivities to qualified individuals with
action that it can demonstrate would
handicaps in the most integrated set-
result in a fundamental alteration in
ting appropriate.
the nature of a program or activity or
in undue financial and administrative (c) Time period for compliance. The
burdens. In those circumstances where agency shall comply with the obliga-
agency personnel believe that the pro- tions established under this section by
posed action would fundamentally November 13, 1987, except that where
alter the program or activity or would structural changes in facilities are un-
result in undue financial and adminis- dertaken, such changes shall be made
trative burdens, the agency has the by September 14, 1990, but in any event
burden of proving that compliance with as expeditiously as possible.
§ 12.150(a) would result in such alter- (d) Transition plan. In the event that
ation or burdens. The decision that structural changes to facilities will be
compliance would result in such alter- undertaken to achieve program acces-
ation or burdens must be made by the sibility, the agency shall develop, by
163
§ 12.151 40 CFR Ch. I (7–1–00 Edition)
March 14, 1988, a transition plan set- (i) In determining what type of auxil-
ting forth the steps necessary to com- iary aid is necessary, the agency shall
plete such changes. The agency shall give primary consideration to the re-
provide an opportunity to interested quests of the individuals with handi-
persons, including individuals with caps.
handicaps or organizations rep- (ii) The agency need not provide indi-
resenting individuals with handicaps to vidually prescribed devices, readers for
participate in the development of the personal use or study, or other devices
transition plan by submitting com- of a personal nature.
ments (both oral and written). A copy (2) Where the agency communicates
of the transition plan shall be made with applicants and beneficiaries by
available for public inspection. The telephone, telecommunication devices
plan shall, at a minimum— for deaf persons (TDD’s) or equally ef-
(1) Identify physical obstacles in the fective telecommunication systems
agency’s facilities that limit the acces- shall be used.
sibility of its programs or activities to (b) The agency shall ensure that in-
individuals with handicaps; terested persons, including persons
(2) Describe in detail the methods with impaired vision or hearing, can
that will be used to make the facilities obtain information as to the existence
accessible; and location of accessible services, ac-
(3) Specify the schedule for taking tivities, and facilities.
the steps necessary to achieve compli-
(c) The agency shall provide signage
ance with this section and, if the time
at a primary entrance to each of its in-
period of the transition plan is longer
accessible facilities, directing users to
than one year, identify steps that will
a location at which they can obtain in-
be taken during each year of the tran-
sition period; and formation about accessible facilities.
(4) Indicate the official responsible The international symbol for accessi-
for implementation of the plan. bility shall be used at each primary en-
trance of an accessible facility.
§ 12.151 Program accessibility: New (d) This section does not require the
construction and alterations. agency to take any action that it can
Each building or part of a building demonstrate would result in a funda-
that is constructed or altered by, on mental alteration in the nature of a
behalf of, or for the use of the agency program or activity or in undue finan-
shall be designed, constructed, or al- cial and administrative burdens. In
tered so as to be readily accessible to those circumstances where agency per-
and usable by individuals with handi- sonnel believe that the proposed action
caps. The definitions, requirements, would fundamentally alter the program
and standards of the Architectural Bar- or activity or would result in undue fi-
riers Act (42 U.S.C. 4151–4157), as estab- nancial and administrative burdens,
lished in 41 CFR 101–19.600 to 101–19.607, the agency has the burden of proving
apply to buildings covered by this sec- that compliance with § 12.160 would re-
tion. sult in such alteration or burdens. The
decision that compliance would result
§§ 12.152–12.159 [Reserved] in such alteration or burdens must be
made by the agency head or designee
§ 12.160 Communications. after considering all agency resources
(a) The agency shall take appropriate available for use in the funding and op-
steps to ensure effective communica- eration of the conducted program or
tion with applicants, participants, per- activity, and must be accompanied by
sonnel of other Federal entities, and a written statement of the reasons for
members of the public. reaching that conclusion. If an action
(1) The agency shall furnish appro- required to comply with this section
priate auxiliary aids where necessary would result in such an alteration or
to afford an individual with handicaps such burdens, the agency shall take
an equal opportunity to participate in, any other action that would not result
and enjoy the benefits of, a program or in such an alteration or such burdens
activity conducted by the agency. but would nevertheless ensure that, to
164
the maximum extent possible, individ- (h) Appeals of the findings of fact and
uals with handicaps receive the bene- conclusions of law or remedies must be
fits and services of the program or ac- filed by the complainant within 90 days
tivity. of receipt from the agency of the letter
required by paragraph (g) of this sec-
§§ 12.161–12.169 [Reserved] tion. The agency may extend this time
for good cause.
§ 12.170 Compliance procedures. (i) Timely appeals shall be accepted
(a) Except as provided in paragraph and processed by the Administrator or
(b) of this section, this section applies a designee.
to all allegations of discrimination on (j) The Administrator or a designee
the basis of handicap in programs or shall notify the complainant of the re-
activities conducted by the agency. sults of the appeal within 60 days of the
(b) The agency shall process com- receipt of the request. If the Adminis-
plaints alleging violations of section trator or designee determines that ad-
504 with respect to employment accord- ditional information is needed from the
ing to the procedures established by complainant, he or she shall have 60
the Equal Employment Opportunity days from the date of receipt of the ad-
Commission in 29 CFR part 1613 pursu- ditional information to make his or her
ant to section 501 of the Rehabilitation determination on the appeal.
Act of 1973 (29 U.S.C. 791). (k) The time limits cited in para-
(c) Responsibility for coordinating graphs (g) and (j) of this section above
implementation of this section shall be may be extended with the permission
vested in the Director of the Office of of the Assistant Attorney General.
Civil Rights, EPA or his/her designate. (l) The agency may delegate its au-
(d) The complainant may file a com- thority for conducting complaint in-
plete complaint at any EPA office. All vestigations to other Federal agencies,
complete complaints must be filed except that the authority for making
within 180 days of the alleged act of the final determination may not be
discrimination. The agency may extend delegated to another agency.
this time period for good cause. The
agency shall accept and investigate all §§ 12.171–12.999 [Reserved]
complete complaints for which it has
jurisdiction. PART 13—CLAIMS COLLECTION
(e) If the agency receives a complaint STANDARDS
over which it does not have jurisdic-
tion, it shall promptly notify the com- Subpart A—General
plainant and shall make reasonable ef-
forts to refer the complaint to the ap- Sec.
propriate Government entity. 13.1 Purpose and scope.
13.2 Definitions.
(f) The agency shall notify the Archi-
13.3 Interagency claims.
tectural and Transportation Barriers 13.4 Other remedies.
Compliance Board upon receipt of any 13.5 Claims involving criminal activities or
complaint alleging that a building of misconduct.
facility that is subject to the Architec- 13.6 Subdivision of claims not authorized.
tural Barriers Act of 1968, as amended 13.7 Omission not a defense.
(42 U.S.C. 4151–4157), is not readily ac-
cessible to and usable by individuals Subpart B—Collection
with handicaps. 13.8 Collection rule.
(g) Within 180 days of the receipt of a 13.9 Initial notice.
complete complaint for which it has ju- 13.10 Aggressive collection actions; docu-
risdiction, the agency shall notify the mentation.
complainant of the results of the inves- 13.11 Interest, penalty and administrative
tigation in a letter containing— costs.
13.12 Interest and charges pending waiver or
(1) Findings of fact and conclusions
review.
of law; 13.13 Contracting for collection services.
(2) A description of a remedy for each 13.14 Use of credit reporting agencies.
violation found; and 13.15 Taxpayer information.
(3) A notice of the right to appeal. 13.16 Liquidation of collateral.
165
§ 13.1 40 CFR Ch. I (7–1–00 Edition)
13.17 Suspension or revocation of license or standards or procedures. This regula-
eligibility. tion covers EPA’s collection, com-
13.18 Installment payments. promise, suspension, termination, and
13.19 Analysis of costs; automation; preven-
tion of overpayments, delinquencies or
referral of debts.
defaults.
Subpart C—Administrative Offset (a) Debt means an amount owed to
13.20 Administrative offset of general debts. the United States from sources which
13.21 Employee salary offset—general. include loans insured or guaranteed by
13.22 Salary offset when EPA is the creditor the United States and all other
agency. amounts due the United States from
13.23 Salary offset when EPA is not the fees, grants, contracts, leases, rents,
creditor agency. royalties, services, sales of real or per-
sonal property, overpayments, fines,
Subpart D—Compromise of Debts
penalties, damages, interest, forfeit-
13.24 General. ures (except those arising under the
13.25 Standards for compromise. Uniform Code of Military Justice), and
13.26 Payment of compromised claims. all other similar sources. As used in
13.27 Joint and several liability. this regulation, the terms debt and
13.28 Execution of releases. claim are synonymous.
Subpart E—Suspension of Collection Action (b) Delinquent debt means any debt
which has not been paid by the date
13.29 Suspension—general. specified by the Government for pay-
13.30 Standards for suspension. ment or which has not been satisfied in
accordance with a repayment agree-
Subpart F—Termination of Debts
ment.
13.31 Termination—general. (c) Debtor means an individual, orga-
13.32 Standards for termination. nization, association, corporation, or a
State or local government indebted to
Subpart G—Referrals the United States or a person or entity
13.33 Referrals to the Department of Jus- with legal responsibility for assuming
tice. the debtor’s obligation.
(d) Agency means the United States
Subpart H—Referral of Debts to IRS for Tax Environmental Protection Agency.
Refund Offset (e) Administrator means the Adminis-
13.34 Purpose. trator of EPA or an EPA employee or
13.35 Applicability and scope. official designated to act on the Ad-
13.36 Administrative charges. ministrator’s behalf.
13.37 Notice requirement before offset. (f) Administrative offset means the
13.38 Review within the Agency. withholding of money payable by the
13.39 Agency determination. United States to, or held by the United
13.40 Stay of offset.
States for, a person to satisfy a debt
AUTHORITY: 5 U.S.C. 552a, 5512, and 5514; 31 the person owes the Government.
U.S.C. 3711 et seq. and 3720A; 4 CFR parts 101– (g) Creditor agency means the Federal
10.
agency to which the debt is owed.
SOURCE: 53 FR 37270, Sept. 23, 1988, unless (h) Disposable pay means that part of
otherwise noted. current basic pay, special pay, incen-
tive pay, retired pay, retainer pay, or
Subpart A—General in the case of an employee not entitled
to basic pay, other authorized pay re-
§ 13.1 Purpose and scope. maining after the deduction of any
This regulation prescribes standards amount described in 5 CFR 581.105 (b)
and procedures for the Environmental through (f). These deductions include,
Protection Agency’s (EPA’s) collection but are not limited to: Social security
and disposal of debts. These standards withholdings; Federal, State and local
and procedures are applicable to all tax withholdings; health insurance pre-
debts for which a statute, regulation or miums; retirement contributions; and
contract does not prescribe different life insurance premiums.
166
(i) Employee means a current em- § 13.5 Claims involving criminal activi-
ployee of the Federal Government in- ties or misconduct.
cluding a current member of the Armed (a) The Administrator will refer cases
Forces. of suspected criminal activity or mis-
(j) Person means an individual, firm, conduct to the EPA Office of Inspector
partnership, corporation, association General. That office has the responsi-
and, except for purposes of administra- bility for investigating or referring the
tive offsets under subpart C and inter- matter, where appropriate, to the De-
est, penalty and administrative costs partment of Justice (DOJ), and/or re-
under subpart B of this regulation, in- turning it to the Administrator for fur-
cludes State and local governments ther actions. Examples of activities
and Indian tribes and components of which should be referred are matters
tribal governments. involving fraud, anti-trust violations,
(k) Employee salary offset means the embezzlement, theft, false claims or
administrative collection of a debt by misuse of Government money or prop-
deductions at one or more officially es- erty.
tablished pay intervals from the cur- (b) The Administrator will not ad-
rent pay account of an employee with- ministratively compromise, terminate,
out the employee’s consent. suspend or otherwise dispose of debts
(l) Waiver means the cancellation, re- involving criminal activity or mis-
mission, forgiveness or non-recovery of conduct without the approval of DOJ.
a debt or debt-related charge as per-
§ 13.6 Subdivision of claims not au-
mitted or required by law. thorized.
§ 13.3 Interagency claims. A claim will not be subdivided to
avoid the $20,000 limit on the Agency’s
This regulation does not apply to authority to compromise, suspend, or
debts owed EPA by other Federal agen- terminate a debt. A debtor’s liability
cies. Such debts will be resolved by ne- arising from a particular transaction
gotiation between the agencies or by or contract is a single claim.
referral to the General Accounting Of-
fice (GAO). § 13.7 Omission not a defense.
§ 13.4 Other remedies. Failure by the Administrator to com-
ply with any provision of this regula-
(a) This regulation does not super- tion is not available to a debtor as a
sede or require omission or duplication defense against payment of a debt.
of administrative proceedings required
by contract, statute, regulation or Subpart B—Collection
other Agency procedures, e.g., resolu-
tion of audit findings under grants or § 13.8 Collection rule.
contracts, informal grant appeals, for-
(a) The Administrator takes action
mal appeals, or review under a procure- to collect all debts owed the United
ment contract. States arising out of EPA activities
(b) The remedies and sanctions avail- and to reduce debt delinquencies. Col-
able to the Agency under this regula- lection actions may include sending
tion for collecting debts are not in- written demands to the debtor’s last
tended to be exclusive. The Agency known address. Written demand may
may impose, where authorized, other be preceded by other appropriate ac-
appropriate sanctions upon a debtor for tion, including immediate referral to
inexcusable, prolonged or repeated fail- DOJ for litigation, when such action is
ure to pay a debt. For example, the necessary to protect the Government’s
Agency may stop doing business with a interest. The Administrator may con-
grantee, contractor, borrower or lend- tact the debtor by telephone, in person
er; convert the method of payment and/or in writing to demand prompt
under a grant or contract from an ad- payment, to discuss the debtor’s posi-
vance payment to a reimbursement tion regarding the existence, amount
method; or revoke a grantee’s or con- or repayment of the debt, to inform the
tractor’s letter-of-credit. debtor of its rights (e.g., to apply for
167
§ 13.9 40 CFR Ch. I (7–1–00 Edition)
waiver of the indebtedness or to have a credit reporting agency (see § 13.14), a

an administrative review) and of the collection agency (see § 13.13) or to DOJ
basis for the debt and the consequences (see § 13.33) if it is not paid.
of nonpayment or delay in payment.
(b) The Administrator maintains an § 13.10 Aggressive collection actions;
administrative file for each debt and/or documentation.
debtor which documents the basis for (a) EPA takes actions and effective
the debt, all administrative collection follow-up on a timely basis to collect
actions regarding the debt (including all claims of the United States for
communications to and from the debt- money and property arising out of
or) and its final disposition. Informa- EPA’s activities. EPA cooperates with
tion from a debt file relating to an in- other Federal agencies in their debt
dividual may be disclosed only for pur- collection activities.
poses which are consistent with this (b) All administrative collection ac-
regulation, the Privacy Act of 1974 and tions are documented in the claim file,
other applicable law. and the bases for any compromise, ter-
mination or suspension of collection
§ 13.9 Initial notice. actions is set out in detail. This docu-
(a) When the Administrator deter- mentation, including the Claims Col-
mines that a debt is owed EPA, he pro- lection Litigation Report required
vides a written initial notice to the § 13.33, is retained in the appropriate
debtor. Unless otherwise provided by debt file.
agreement, contract or order, the ini-
tial notice informs the debtor: § 13.11 Interest, penalty and adminis-
(1) Of the amount, nature and basis of trative costs.
the debt; (a) Interest. EPA will assess interest
(2) That payment is due immediately on all delinquent debts unless prohib-
upon receipt of the notice; ited by statute, regulation or contract.
(3) That the debt is considered delin- (1) Interest begins to accrue on all
quent if it is not paid within 30 days of debts from the date of the initial no-
the date mailed or hand-delivered; tice to the debtor. EPA will not re-
(4) That interest charges and, except cover interest where the debt is paid
for State and local governments and within 30 days of the date of the notice.
Indian tribes, penalty charges and ad- EPA will assess an annual rate of in-
ministrative costs may be assessed terest that is equal to the rate of the
against a delinquent debt; current value of funds to the United
(5) Of any rights available to the States Treasury (i.e., the Treasury tax
debtor to dispute the validity of the and loan account rate) as prescribed
debt or to have recovery of the debt and published by the Secretary of the
waived (citing the available review or Treasury in the FEDERAL REGISTER and
waiver authority, the conditions for re- the Treasury Fiscal Requirements
view or waiver, and the effects of the Manual Bulletins, unless a different
review or waiver request on the collec- rate is necessary to protect the inter-
tion of the debt), and of the possibility est of the Government. EPA will notify
of assessment of interest, penalty and the debtor of the basis for its finding
administrative costs; and that a different rate is necessary to
(6) The address, telephone number protect the interest of the Govern-
and name of the person available to ment.
discuss the debt. (2) The Administrator may extend
(b) EPA will respond promptly to the 30-day period for payment where he
communications from the debtor. Re- determines that such action is in the
sponse generally will be within 20 days best interest of the Government. A de-
of receipt of communication from the cision to extend or not to extend the
debtor. payment period is final and is not sub-
(c) Subsequent demand letters also ject to further review.
will advise the debtor of any interest, (3) The rate of interest, as initially
penalty or administrative costs which assessed, remains fixed for the duration
have been assessed and will advise the of the indebtedness. If a debtor defaults
debtor that the debt may be referred to on a repayment agreement, interest
168
may be set at the Treasury rate in ef- may be made at any time prior to pay-
fect on the date a new agreement is ex- ment of a debt. However, where these
ecuted. charges have been collected prior to
(4) Interest will not be assessed on in- the waiver decision, they will not be
terest charges, administrative costs or refunded. The Administrator’s decision
later payment penalties. However, to waive or not waive collection of
where a debtor defaults on a previous these charges is a final agency action.
repayment agreement and interest, ad-
ministrative costs and penalties § 13.12 Interest and charges pending
charges have been waived under the de- waiver or review.
faulted agreement, these charges can Interest, penalty charges and admin-
be reinstated and added to the debt istrative costs will continue to accrue
principal under any new agreement and on a debt during administrative appeal,
interest charged on the entire amount either formal or informal, and during
of the debt. waiver consideration by the Agency;
(b) Administrative costs of collecting except, that interest, penalty charges
overdue debts. The costs of the Agency’s and administrative costs will not be as-
administrative handling of overdue sessed where a statute or a regulation
debts, based on either actual or aver- specifically prohibits collection of the
age cost incurred, will be charged on debt during the period of the adminis-
all debts except those owed by State trative appeal or the Agency review.
and local governments and Indian
tribes. These costs include both direct § 13.13 Contracting for collection serv-
and indirect costs. Administrative ices.
costs will be assessed monthly EPA will use private collection serv-
throughout the period the debt is over- ices where it determines that their use
due except as provided by § 13.12. is in the best interest of the Govern-
(c) Penalties. As provided by 31 U.S.C. ment. Where EPA determines that
3717(e)(2), a penalty charge will be as- there is a need to contract for collec-
sessed on all debts, except those owned tion services it will—
by State and local governments and In- (a) Retain sole authority to resolve
dian tribes, more than 90 days delin- any dispute by the debtor of the valid-
quent. The penalty charge will be at a ity of the debt, to compromise the
rate not to exceed 6% per annum and debt, to suspend or terminate collec-
will be assessed monthly. tion action, to refer the debt to DOJ
(d) Allocation of payments. A partial for litigation, and to take any other
payment by a debtor will be applied action under this part which does not
first to outstanding administrative result in full collection of the debt;
costs, second to penalty assessments, (b) Require the contractor to comply
third to accrued interest and then to with the Privacy Act of 1974, as amend-
the outstanding debt principal. ed, to the extent specified in 5 U.S.C.
(e) Waiver. (1) The Administrator 552a(m), with applicable Federal and
may (without regard to the amount of State laws pertaining to debt collec-
the debt) waive collection of all or part tion practices (e.g., the Fair Debt Col-
of accrued interest, penalty or adminis- lection Practices Act (15 U.S.C. 1692 et
trative costs, where he determines seq.)), and with applicable regulations
that— of the Internal Revenue Service;
(i) Waiver is justified under the cri- (c) Require the contractor to account
teria of § 13.25; accurately and fully for all amounts
(ii) The debt or the charges resulted collected; and
from the Agency’s error, action or in- (d) Require the contractor to provide
action, and without fault by the debt- to EPA, upon request, all data and re-
or; or ports contained in its files relating to
(iii) Collection of these charges its collection actions on a debt.
would be against equity and good con-
science or not in the best interest of § 13.14 Use of credit reporting agen-
the United States. cies.
(2) A decision to waive interest, pen- EPA reports delinquent debts to ap-
alty charges or administrative costs propriate credit reporting agencies.
169
§ 13.15 40 CFR Ch. I (7–1–00 Edition)
(a) EPA provides the following infor- the Agency, its officers, employees,
mation to the reporting agencies: agents or contractors and other Fed-
(1) A statement that the claim is eral agencies only to collect or dispose
valid and is overdue; of debts, and may be disclosed to credit
(2) The name, address, taxpayer iden- reporting agencies only for the purpose
tification number and any other infor- of their use in preparing a commercial
mation necessary to establish the iden- credit report on the taxpayer for use by
tity of the debtor; EPA.
(3) The amount, status and history of
the debt; and § 13.16 Liquidation of collateral.
(4) The program or pertinent activity
under which the debt arose. Where the Administrator holds a se-
(b) Before disclosing debt informa- curity instrument with a power of sale
tion, EPA will: or has physical possession of collateral,
(1) Take reasonable action to locate he may liquidate the security or collat-
the debtor if a current address is not eral and apply the proceeds to the over-
available; and due debt. EPA will exercise this right
(2) If a current address is available, where the debtor fails to pay within a
notify the debtor by certified mail, re- reasonable time after demand, unless
turn receipt requested, that: the cost of disposing of the collateral is
(i) The designated EPA official has disproportionate to its value or special
reviewed the claim and has determined circumstances require judicial fore-
that it is valid and overdue; closure. However, collection from other
(ii) That within 60 days EPA intends businesses, including liquidation of se-
to disclose to a credit reporting agency curity or collateral, is not a pre-
the information authorized for disclo- requisite to requiring payment by a
sure by this subsection; and surety or insurance company unless ex-
(iii) The debtor can request a com- pressly required by contract or statute.
plete explanation of the claim, can dis- The Administrator will give the debtor
pute the information in EPA’s records reasonable notice of the sale and an ac-
concerning the claim, and can file for counting of any surplus proceeds and
an administrative review, waiver or re- will comply with any other require-
consideration of the claim, where ap- ments of law or contract.
plicable.
(c) Before information is submitted § 13.17 Suspension or revocation of li-
to a credit reporting agency, EPA will cense or eligibility.
provide a written statement to the re-
When collecting statutory penalties,
porting agency that all required ac-
tions have been taken. Additionally, forfeitures, or debts for purposes of en-
EPA will, thereafter, ensure that the forcement or compelling compliance,
credit reporting agency is promptly in- the Administrator may suspend or re-
formed of any substantive change in voke licenses or other privileges for
the conditions or amounts of the debt, any inexcusable, prolonged or repeated
and promptly verify or correct infor- failure of a debtor to pay a claim. Addi-
mation relevant to the claim. tionally, the Administrator may sus-
(d) If a debtor disputes the validity of pend or disqualify any contractor,
the debt, the credit reporting agency lender, broker, borrower, grantee or
will refer the matter to the appropriate other debtor from doing business with
EPA official. The credit reporting EPA or engaging in programs EPA
agency will exclude the debt from its sponsors or funds if a debtor fails to
reports until EPA certifies in writing pay its debts to the Government within
that the debt is valid. a reasonable time. Debtors will be noti-
fied before such action is taken and ap-
§ 13.15 Taxpayer information. plicable suspension or debarment pro-
(a) The Administrator may obtain a cedures will be used. The Adminis-
debtor’s current mailing address from trator will report the failure of any
the Internal Revenue Service. surety to honor its obligations to the
(b) Addresses obtained from the In- Treasury Department for action under
ternal Revenue Service will be used by 6 U.S.C. 11.
170
§ 13.18 Installment payments. various debts in accordance with the

(a) Whenever, feasible, and except as best interest of the United States, pay-
otherwise provided by law, debts owed ing special attention to applicable
to the United States, together with in- statutes of limitations.
terest, penalty and administrative
§ 13.19 Analysis of costs; automation;
costs, as required by § 13.11, will be col- prevention of overpayments, delin-
lected in a single payment. However, quencies or defaults.
where the Administrator determines
that a debtor is financially unable to (a) The Administrator may periodi-
pay the indebtedness in a single pay- cally compare EPA’s costs in handling
ment or that an alternative payment debts with the amounts it collects,
mechanism is in the best interest of (b) The Administrator may periodi-
the United States, the Administrator cally consider the need, feasibility, and
may approve repayment of the debt in cost effectiveness of automated debt
installments. The debtor has the bur- collection operations.
den of establishing that it is finan- (c) The Administrator may establish
cially unable to pay the debt in a sin- internal controls to identify the causes
gle payment or that an alternative of overpayments and delinquencies and
payment mechanism is warranted. If may issue procedures to prevent future
the Administrator agrees to accept occurrences of the identified problems.
payment by installments, the Adminis-
trator may require a debtor to execute Subpart C—Administrative Offset
a written agreement which specifies all
the terms of the repayment arrange- § 13.20 Administrative offset of general
ment and which contains a provision debts.
accelerating the debt in the event of This subpart provides for EPA’s col-
default. The size and frequency of in- lection of debts by administrative off-
stallment payments will bear a reason- set under section 5 of the Debt Collec-
able relation to the size of the debt and
tion Act of 1982 (31 U.S.C. 3716), other
the debtor’s ability to pay. The install-
statutory authorities and the common
ment payments will be sufficient in
law. It does not apply to offsets against
size and frequency to liquidate the debt
employee salaries covered by §§ 13.21,
in not more than 3 years, unless the
13.22 and 13.23 of this subpart. EPA will
Administrator determines that a
collect debts by administrative offsets
longer period is required. Installment
where it determines that such collec-
payments of less than $50 per month
tions are feasible and are not otherwise
generally will not be accepted, but may
be accepted where the debtor’s finan- prohibited by statute or contract.
cial or other circumstances justify. If EPA will decide, on a case-by-case
the debt is unsecured, the Adminis- basis, whether collection by adminis-
trator may require the debtor to exe- trative offset is feasible and that its
cute a confess-judgment note with a use furthers and protects the interest
tax carry-forward and a tax carry-back of the United States.
provision. Where the Administrator se- (a) Standards. (1) The Administrator
cures a confess-judgment note, the Ad- collects debts by administrative offset
ministrator will provide the debtor a if—
written explanation of the con- (i) The debt is certain in amount;
sequences of the debtor’s signing the (ii) Efforts to obtain direct payment
note. from the debtor have been, or would
(b) If a debtor owes more than one most likely be, unsuccessful or the Ad-
debt and designates how a voluntary ministrator and the debtor agree to the
installment payment is to be applied offset;
among the debts, that designation will (iii) Offset is not expressly or implic-
be approved if the Administrator deter- itly prohibited by statute, regulation
mines that the designation is in the or contract;
best interest of the United States. If (iv) Offset is cost-effective or has sig-
the debtor does not designate how the nificant deterrent value;
payment is to be applied, the Adminis- (v) Offset does not substantially im-
trator will apply the payment to the pair or defeat program objectives; and
171
§ 13.20 40 CFR Ch. I (7–1–00 Edition)
(vi) Offset is best suited to further (2) The debtor’s right to submit an
and protect the Government’s interest. alternative repayment schedule, to in-
(2) The Administrator may, in deter- spect and copy agency records per-
mining the method and amount of the taining to the debt, to request review
offset, consider the financial impact on of the determination of indebtedness or
the debtor. to apply for waiver under any available
(b) Interagency offset. The Adminis- statute or regulation; and
trator may offset a debt owed to an- (3) Applicable interest, penalty
other Federal agency from amounts charges and administrative costs.
due or payable by EPA to the debtor, (f) Alternative repayment. The Admin-
or may request another Federal agency istrator may, at the Administrator’s
to offset a debt owed to EPA. The Ad- discretion, enter into a repayment
ministrator may request the Internal agreement with the debtor in lieu of
Revenue Service to offset an overdue offset. In deciding whether to accept
debt from a Federal income tax refund payment of the debt by an alternative
due a debtor where reasonable at- repayment agreement, the Adminis-
tempts to obtain payment have failed. trator may consider such factors as the
Interagency offsets from employee sal- amount of the debt, the length of the
aries will be made in accordance with proposed repayment period, whether
the procedures contained in §§ 13.22 and the debtor is willing to sign a confess-
13.23. judgment note, past Agency dealings
(c) Multiple debts. Where moneys are with the debtor, documentation sub-
available for offset against multiple mitted by the debtor indicating that an
debts of a debtor, it will be applied in offset will cause undue financial hard-
accordance with the best interest of ship, and the debtor’s financial ability
the Government as determined by the to adhere to the terms of a repayment
Administrator on a case-by-case basis.
agreement. The Administrator may re-
(d) Statutory bar to offset. Administra- quire financial documentation from
tive offset will not be made more than the debtor before considering the re-
10 years after the Government’s right
payment arrangement.
to collect the debt first accrued, unless
(g) Review of administrative determina-
facts material to the Government’s
tion. (1) A debt will not be offset while
right to collect the debt were not
known and could not have been known a debtor is seeking either formal or in-
through the exercise of reasonable care formal review of the validity of the
by the officer responsible for discov- debt under this section or under an-
ering or collecting the debt. For pur- other statute, regulation or contract.
poses of offset, the right to collect a However, interest, penalty and admin-
debt accrues when the appropriate EPA istrative costs will continue to accrue
official determines that a debt exists during this period, unless otherwise
(e.g., contracting officer, grant award waived by the Administrator. The Ad-
official, etc.), when it is affirmed by an ministrator may initiate offset as soon
administrative appeal or a court hav- as practical after completion of review
ing jurisdiction, or when a debtor de- or after a debtor waives the oppor-
faults on a payment agreement, which- tunity to request review.
ever is latest. An offset occurs when (2) The Administrator may adminis-
money payable to the debtor is first tratively offset a debt prior to the com-
withheld or when EPA requests offset pletion of a formal or informal review
from money held by another agency. where the determines that:
(e) Pre-offset notice. Before initiating (i) Failure to take the offset would
offset, the Administrator sends the substantially prejudice EPA’s ability
debtor written notice of: to collect the debt; and
(1) The basis for and the amount of (ii) The time before the first offset is
the debt as well as the Agency’s inten- to be made does not reasonably permit
tion to collect the debt by offset if pay- the completion of the review proce-
ment or satisfactory response has not dures. (Offsets taken prior to comple-
been received within 30 days of the no- tion of the review process will be fol-
tice; lowed promptly by the completion of
172
the process. Amounts recovered by off- § 13.22 Salary offset when EPA is the
set but later found not to be owed will creditor agency.
be refunded promptly.) (a) Entitlement to notice, hearing, writ-
(3) The debtor must provide a written ten response and decision. (1) Prior to
request for review of the decision to initiating collection action through
offset the debt no later than 15 days salary offset, EPA will first provide the
after the date of the notice of the offset employee with the opportunity to pay
unless a different time is specifically in full the amount owed, unless such
prescribed. The debtor’s request must notification will compromise the Gov-
state the basis for the request for re- ernment’s ultimate ability to collect
view. the debt.
(4) The Administrator may grant an (2) Except as provided in paragraph
extension of time for filing a request (b) of this section, each employee from
for review if the debtor shows good whom the Agency proposes to collect a
cause for the late filing. A debtor who debt by salary offset under this section
fails timely to file or to request an ex- is entitled to receive a written notice
tension waives the right to review. as described in paragraph (c) of this
(5) The Administrator will issue, no section.
later than 60 days after the filing of the (3) Each employee owing a debt to
request, a written final decision based the United States which will be col-
on the evidence, record and applicable lected by salary offset is entitled to re-
law. quest a hearing on the debt. This re-
quest must be filed as prescribed in
§ 13.21 Employee salary offset—gen- paragraph (d) of this section. The
eral. Agency will make appropriate hearing
(a) Purpose. This section establishes arrangements which are consistent
EPA’s policies and procedures for re- with law and regulations. Where a
covery of debts owed to the United hearing is held, the employee is enti-
States by installment collection from tled to a written decision on the fol-
the current pay account of an em- lowing issues:
ployee. (i) The determination of the Agency
(b) Scope. The provisions of this sec- concerning the existence or amount of
tion apply to collection by salary offset the debt; and
under 5 U.S.C. 5514 of debts owed EPA (ii) The repayment schedule, if it was
and debts owed to other Federal agen- not established by written agreement
cies by EPA employees. This section between the employee and the Agency.
does not apply to debts owed EPA aris- (b) Exceptions to entitlement to notice,
ing from travel advances under 5 U.S.C. hearing, written response and final deci-
5705, employee training expenses under sion. The procedural requirements of
5 U.S.C. 4108 and to other debts where paragraph (a) of this section are not
collection by salary offset is explicitly applicable to any adjustment of pay
provided for or prohibited by another arising out of an employee’s election of
statute. coverage or a change in coverage under
(c) References. The following statutes a Federal benefits program (such as
and regulations apply to EPA’s recov- health insurance) requiring periodic
ery of debts due the United States by deductions from pay, if the amount to
salary offset: be recovered was accumulated over
(1) 5 U.S.C. 5514, as amended, gov- four pay periods or less. However, if the
erning the installment collection of amount to be recovered was accumu-
debts; lated over more than four pay periods
(2) 31 U.S.C. 3716, governing the liq- the full procedures prescribed under
uidation of debts by administrative off- paragraph (d) of this section will be ex-
set; tended to the employee.
(3) 5 CFR part 550, subpart K, setting (c) Notification before deductions begin.
forth the minimum requirements for Except as provided in paragraph (b) of
executive agency regulations on salary this section, deductions will not be
offset; and made unless the employee is first pro-
(4) 4 CFR parts 101–105, the Federal vided with a minimum of 30 calendar
Claims Collection Standards. days written notice. Notice will be sent
173
§ 13.22 40 CFR Ch. I (7–1–00 Edition)
by certified mail (return receipt re- (i) Disciplinary procedures under 5

quested), and must include the fol- U.S.C. chapter 75 or any other applica-
lowing: ble statutes or regulations;
(1) The Agency’s determination that (ii) Criminal penalties under 18
a debt is owed, including the origin, na- U.S.C. 286, 287, 1001 and 1002 or other
ture, and amount of the debt; applicable statutory authority; or
(2) The Agency’s intention to collect (iii) Penalties under the False Claims
the debt by means of deductions from Act, 31 U.S.C. 3729–3731, or any other
the employee’s current disposable pay applicable statutory authority;
account; (12) Any other rights and remedies
(3) The amount, frequency, proposed available under statutes or regulations
beginning date and duration of the in- governing the program for which the
tended deductions. (The proposed be- collection is being made; and
ginning date for salary offset cannot be
(13) That amounts paid or deducted
earlier than 30 days after the date of
for the debt, except administrative
notice, unless this would compromise
costs and penalty charges where the
the Government’s ultimate ability to
entire debt is not waived or termi-
resolve the debt);
nated, which are later waived or found
(4) An explanation of the require-
not owed to the United States will be
ments concerning interest, penalty and
promptly refunded to the employee.
administrative costs;
(5) The employee’s right to inspect (d) Request for hearing. An employee
and copy all records relating to the may request a hearing by filing a writ-
debt or to request and receive a copy of ten request directly with the Director,
such records; Financial Management Division (PM–
(6) If not previously provided, the em- 226F), U.S. Environmental Protection
ployee’s right to enter into a written Agency, 401 M Street SW., Washington,
agreement for a repayment schedule DC 20460. The request must state the
differing from that proposed by the bases upon which the employee dis-
Agency where the terms of the pro- putes the proposed collection of the
posed repayment schedule are accept- debt. The request must be signed by
able to the Agency. (Such an agree- the employee and be received by EPA
ment must be in writing and signed by within 15 days of the employee’s re-
both the employee and the appropriate ceipt of the notification of proposed de-
EPA official and will be included in the ductions. The employee should submit
employee’s personnel file and docu- in writing all facts, evidence and wit-
mented in the EPA payroll system); nesses which support his/her position
(7) The right to a hearing conducted to the Director, Financial Management
by a hearing official not under the con- Division, within 15 days of the date of
trol of the Administrator, if a request the request for a hearing. The Director,
is filed; Financial Management Division, will
(8) The method and time for request- arrange for the services of a hearing of-
ing a hearing; ficial not under the control of the Ad-
(9) That the filing of a request for ministrator and will provide the hear-
hearing within 15 days of receipt of the ing official with all documents relating
original notification will stay the as- to the claim.
sessment of interest, penalty and ad- (e) Requests for hearing made after time
ministrative costs and the commence- expires. Late requests for a hearing
ment of collection proceedings; may be accepted if the employee can
(10) That a final decision on the hear- show that the delay in filing the re-
ing (if requested) will be issued at the quest for a hearing was due to cir-
earliest practical date, but no later cumstances beyond the employee’s
than 60 days after the filing of the re- control.
quest, unless the employee requests (f) Form of hearing, written response
and the hearing official grants a delay and final decision. (1) Normally, a hear-
in the proceedings; ing will consist of the hearing official
(11) That knowingly false or frivolous making a decision based upon a review
statements, representations or evi- of the claims file and any materials
dence may subject the employee to— submitted by the debtor. However, in
174
instances where the hearing official de- will be documented in the Agency’s
termines that the validity of the debt files.
turns on an issue of veracity or credi- (i) Limitation on amount of deduction.
bility which cannot be resolved The size and frequency of installment
through review of documentary evi- deductions generally will bear a rea-
dence, the hearing official at his dis- sonable relation to the size of the debt
cretion may afford the debtor an oppor- and the employee’s ability to pay.
tunity for an oral hearing. Such oral However, the amount deducted for any
hearings will consist of an informal period may not exceed 15 percent of the
conference before a hearing official in disposable pay from which the deduc-
which the employee and the Agency tion is made, unless the employee has
will be given the opportunity to agreed in writing to the deduction of a
present evidence, witnesses and argu- greater amount. If possible, the install-
ment. If desired, the employee may be ment payments will be in amounts suf-
represented by an individual of his/her ficient to liquidate the debt in three
choice. The Agency shall maintain a years or less. Installment payments of
summary record of oral hearings pro- less than $25 normally will be accepted
vided under these procedures. only in the most unusual cir-
(2) Written decisions provided after a cumstances.
request for hearing will, at a minimum, (j) Duration of deduction. If the em-
state the facts evidencing the nature ployee is financially unable to pay a
and origin of the alleged debt; and the debt in a lump-sum or the amount of
hearing official’s analysis, findings and the debt exceeds 15 percent of dispos-
conclusions. able pay, collection will be made in in-
(3) The decision of the hearing offi- stallments. Installment deductions will
cial is final and binding on the parties. be made over the period of active duty
(g) Request for waiver. In certain in- or employment except as provided in
stances, an employee may have a stat- paragraph (a)(1) of this section.
utory right to request a waiver of over- (k) When deductions may begin. (1) De-
payment of pay or allowances, e.g., 5 ductions to liquidate an employee’s
U.S.C. 5584 or 5 U.S.C. 5724(i). When an debt will begin on the date stated in
employee requests waiver consider- the Agency’s notice of intention to col-
ation under a right authorized by stat- lect from the employee’s current pay
ute, further collection on the debt will unless the debt has been repaid or the
be suspended until a final administra- employee has filed a timely request for
tive decision is made on the waiver rehearing on issues for which a hearing is
quest. However, where it appears that appropriate.
the Government’s ability to recover (2) If the employee has filed a timely
the debt may be adversely affected be- request for hearing with the Agency,
cause of the employee’s resignation, deductions will begin after the hearing
termination or other action, suspen- official has provided the employee with
sion of recovery is not required. During a final written decision indicating the
the period of the suspension, interest, amount owed the Government. Fol-
penalty charges and administrative lowing the decision by the hearing offi-
costs will not be assessed against the cial, the employee will be given 30 days
debt. The Agency will not duplicate, to repay the amount owed prior to col-
for purposes of salary offset, any of the lection through salary offset, unless
procedures already provided the debtor otherwise provided by the hearing offi-
under a request for waiver. cial.
(h) Method and source of collection. A (l) Liquidation from final check. If the
debt will be collected in a lump-sum or employee retires, resigns, or the period
by installment deductions at estab- of employment ends before collection
lished pay intervals from an employ- of the debt is completed, the remainder
ee’s current pay account, unless the of the debt will be offset from subse-
employee and the Agency agree to al- quent payments of any nature due the
ternative arrangements for payment. employee (e.g., final salary payment,
The alternative payment schedule lump-sum leave, etc.).
must be in writing, signed by both the (m) Recovery from other payments due
employee and the Administrator and a separated employee. If the debt cannot
175
§ 13.23 40 CFR Ch. I (7–1–00 Edition)
be liquidated by offset from any final essing and handling costs will only be
payment due the employee on the date assessed after the expiration of the 30-
of separation, EPA will liquidate the day notice period and after the comple-
debt, where appropriate, by adminis- tion of any hearing requested under
trative offset from later payments of paragraph (d) of this section or waiver
any kind due the former employee (e.g., consideration under paragraph (g) of
retirement pay). Such administrative this section.
offset will be taken in accordance with (2) Interest will be assessed on all
the procedures set forth in § 13.20. debts not collected within 30 days of ei-
(n) Employees who transfer to another ther the date of the notice where the
Federal agency. If an EPA employee employee has not requested a hearing
transfers to another Federal agency within the allotted time, completion of
prior to repaying a debt owed to EPA, a hearing pursuant to paragraph (d) of
the following action will be taken: this section, or completion of waiver
(1) The appropriate debt-claim form consideration under paragraph (g) of
specified by the Office of Personnel this section, whichever is later. Inter-
Management (OPM) will be completed est will continue to accrue during the
and certified to the new paying office period of the recovery.
by EPA. EPA will certify: That the em- (3) Deductions by salary offset nor-
ployee owes a debt; the amount and the mally begin prior to the time for as-
basis for the debt; the date on which sessment of a penalty. Therefore, a
payment is due; the date the Govern- penalty charge will not be assessed un-
ment’s rights to collect the debt first less deductions occur more than 120
accrued; and that EPA’s regulations days from the date of notice to the
implementing 5 U.S.C. 5514 have been debtor and penalty assessments have
approved by OPM. not been suspended because of waiver
(2) The new paying agency will be ad- consideration by EPA.
vised of the amount which has already (p) Non-waiver of right by payment. An
been collected, the number of install- employee’s payment under protest of
ments and the commencement date for all or any portion of a debt does not
the first installment, if other than the waive any rights which the employee
next officially established pay period. may have under either these proce-
EPA will also identify to the new pay- dures or any other provision of law.
ing agency the actions it has taken and (q) Refunds. EPA will promptly re-
the dates of such actions. fund to the employee amounts paid or
(3) EPA will place or will arrange to deducted pursuant to this section, the
have placed in the employee’s official recovery of which is subsequently
personnel file the information required waived or otherwise found not owing to
by paragraphs (n) (1) and (2) of this sec- the United States. Refunds do not bear
tion. interest unless specifically authorized
(4) Upon receipt of the official per- by law.
sonnel file from EPA, the new paying (r) Time limit for commencing recovery
agency will resume collection from the by salary setoff. EPA will not initiate
employee’s current pay account and salary offset to collect a debt more
will notify both the employee and EPA than 10 years after the Government’s
of the resumption. right to collect the debt first accrued,
(o) Interest, penalty and administrative unless facts material to the right to
cost. EPA will assess interest and ad- collect the debt were not known and
ministrative costs on debts collected could not have been known through the
under these procedures. The following exercise of reasonable care by the Gov-
guidelines apply to the assessment of ernment official responsible for discov-
these costs on debts collected by salary ering and collecting such debts.
offset:
(1) A processing and handling charge § 13.23 Salary offset when EPA is not
will be assessed on debts collected the creditor agency.
through salary offset under this sec- The requirements below apply when
tion. Where offset begun prior to the EPA has been requested to collect a
employee’s receipt of the 30-day writ- debt owed by an EPA employee to an-
ten notice of the proposed offset, proc- other Federal agency.
176
(a) Format for the request for recovery. lected—(1) Employees separating from
(1) The creditor agency must complete Government service. If an employee be-
fully the appropriate claim form speci- gins separation action before EPA col-
fied by OPM. lects the total debt due the creditor
(2) The creditor agency must certify agency, the following actions will be
to EPA on the debt claim form: The taken:
fact that the employee owes a debt; the (i) To the extent possible, the balance
date that the debt first accrued; and owed the creditor agency will be liq-
that the creditor agency’s regulations uidated from subsequent payments of
implementing 5 U.S.C. 5514 have been any nature due the employee from EPA
approved by OPM and send it to the Di- in accordance with § 13.22(1);
rector, Financial Management Division (ii) If the total amount of the debt
(PM–226F), U.S. Environmental Protec- cannot be recovered, EPA will certify
tion Agency, 401 M Street SW., Wash- to the creditor agency and the em-
ington, DC 20460. ployee the total amount of EPA’s col-
(3) If the collection is to be made in lection; and
installments, the creditor agency must (iii) If EPA is aware that the em-
also advise EPA of the number of in- ployee is entitled to payments from the
stallments to be collected, the amount Civil Service Retirement and Dis-
of each installment, and the com- ability Fund or other similar pay-
mencement date of the first installments, it will forward a copy of the
ment, if a date other than the next es- claim form to the agency responsible
tablished pay period. for making such payments as notice
(4) Unless the employee has con- that a debt is outstanding. EPA will
sented in writing to the salary deduc- also send a copy of the claim form to
tions or signed a statement acknowl- the creditor agency so that it can file
edging receipt of the required proce- a certified claim against the payments.
dures and this information is attached (2) Employees who transfer to another
to the claim form, the creditor agency Federal agency. If an EPA employee
must indicate the actions it took under transfers to another Federal agency be-
its procedures for salary offset and the fore EPA collects the total amount due
dates of such actions. the creditor agency, the following ac-
(b) Processing of the claim by EPA—(1) tions will be taken:
Incomplete claims. If EPA receives an (i) EPA will certify the total amount
improperly completed claim form, the of the collection made on the debt; and
claim form and all accompanying ma- (ii) The employee’s official personnel
terial will be returned to the request- folder will be sent to the new paying
ing (creditor) agency with notice that agency. (It is the responsibility of the
OPM procedures must be followed and creditor agency to ensure that the col-
a properly completed claim form must lection is resumed by the new paying
be received before any salary offset can agency.)
be taken. The notice should identify
specifically what is needed from the re- Subpart D—Compromise of Debts
questing agency for the claim to be
processed. § 13.24 General.
(2) Complete claims. If the claim proce- EPA may compromise claims for
dures in paragraph (a) of this section money or property where the claim, ex-
have been properly completed, deduc- clusive of interest, penalty and admin-
tion will begin on the next established istrative costs, does not exceed $20,000.
pay period. EPA will not review the Where the claim exceeds $20,000, the
merits of the creditor agency’s deter- authority to accept the compromise
minations with respect to the amount rests solely with DOJ. The Adminis-
or validity of the debt as stated in the trator may reject an offer of com-
debt claim form. EPA will not assess a promise in any amount. Where the
handling or any other related charge to claim exceeds $20,000 and EPA rec-
cover the cost of its processing the ommends acceptance of a compromise
claim. offer, it will refer the claim with its
(c) Employees separating from EPA be- recommendation to DOJ for approval.
fore a debt to another agency is col- The referral will be in the form of the
177
§ 13.25 40 CFR Ch. I (7–1–00 Edition)
Claims Collection Litigation Report (iii) The ratio of liabilities (both

(CCLR) and will outline the basis for short and long term) to assets.
EPA’s recommendation. EPA refers (3) Commercial debtors. (i) Ratio of as-
compromise offers for claims in excess sets to liabilities;
of $100,000 to the Commercial Litiga- (ii) Prospects of future income or
tion Branch, Civil Division, Depart- losses; or
ment of Justice, Washington, DC 20530, (iii) The availability of assets or in-
unless otherwise provided by Depart- come which may be realized by en-
ment of Justice delegations or proce- forced collection proceedings.
dures. EPA refers offers of compromise (b) EPA may compromise a claim, or
for claims of $20,000 to $100,000 to the recommend acceptance of a com-
United States Attorney in whose judi- promise to DOJ, where there is sub-
cial district the debtor can be found. If stantial doubt concerning the Govern-
the Administrator has a debtor’s firm ment’s ability to prove its case in
written offer for compromise which is court for the full amount of the claim,
substantial in amount but the Admin- either because of the legal issues in-
istrator is uncertain as to whether the volved or a bona fide dispute as to the
offer should be accepted, he may refer facts. The amount accepted in com-
the offer and the supporting data to promise in such cases will fairly reflect
DOJ or GAO for action. the probability of prevailing on the
legal issues involved, considering fully
§ 13.25 Standards for compromise. the availability of witnesses and other
(a) EPA may compromise a claim evidentiary data required to support
pursuant to this section if EPA cannot the Government’s claim. In deter-
collect the full amount because the mining the litigative risks involved,
debtor does not have the financial abil- EPA will give proportionate weight to
ity to pay the full amount of the debt the likely amount of court costs and
within a reasonable time, or the debtor attorney fees the Government may
refuses to pay the claim in full and the incur if it is unsuccessful in litigation.
Government does not have the ability (c) EPA may compromise a claim, or
to enforce collection in full within a recommend acceptance of a com-
reasonable time by enforced collection promise to DOJ, if the cost of collec-
proceedings. In evaluating the accept- tion does not justify the enforced col-
ability of the offer, the Administrator lection of the full amount of the debt.
may consider, among other factors, the The amount accepted in compromise in
following: such cases may reflect an appropriate
(1) Individual debtors. (i) Age and discount for the administrative and
health of the debtor; litigative costs of collection, taking
into consideration the time it will take
(ii) Present and potential income;
to effect collection. Costs of collection
(iii) Inheritance prospects;
may be a substantial factor in the set-
(iv) The possibility that assets have tlement of small claims, but normally
been concealed or improperly trans- will not carry great weight in the set-
ferred by the debtor; tlement of large claims. In determining
(v) The availability of assets or in- whether the cost of collection justifies
come which may be realized by en- enforced collection of the full amount,
forced collection proceedings; or EPA may consider the positive effect
(vi) The applicable exemptions avail- that enforced collection of the claim
able to the debtor under State and Fed- may have on the collection of other
eral law in determining the Govern- similar claims.
ment’s ability to enforce collection. (d) Statutory penalties, forfeitures or
(2) Municipal and quasi-municipal debt- debts established as an aid to enforce-
ors. (i) The size of the municipality or ment and to compel compliance may be
quasi-municipal entity; compromised where the Administrator
(ii) The availability of current and determines that the Agency’s enforce-
future resources sufficient to pay the ment policy, in terms of deterrence and
debt (e.g., bonding authority, rate ad- securing compliance (both present and
justment authority, or taxing author- future), will be adequately served by
ity); or accepting the offer.
178
§ 13.26 Payment of compromised time period and generally will be re-

claims. viewed at least every six months to en-
The Administrator normally will not sure the continued propriety of the sus-
approve a debtor’s request to pay a pension. DOJ approval is required to
compromised claim in installments. suspend debts exceeding $20,000. Unless
However, where the Administrator de- otherwise provided by DOJ delegations
termines that payment of a com- or procedures, the Administrator refers
promise by installments is necessary to requests for suspension of debts of
effect collection, a debtor’s request to $20,000 to $100,000 to the United States
pay in installments may be approved. Attorney in whose district the debtor
Normally, where installment repay- resides. Debts exceeding $100,000 are re-
ment is approved, the debtor will be referred to the Commercial Litigation
quired to execute a confess-judgment Branch, Civil Division, Department of
agreement which accelerates payment Justice, for approval.
of the balance due upon default. § 13.30 Standards for suspension.
§ 13.27 Joint and several liability. (a) Inability to locate debtor. The Ad-
When two or more debtors are jointly ministrator may suspend collection on
and severally liable, collection action a debt where he determines that the
will not be withheld against one debtor debtor cannot be located presently but
until the other or others pay their pro- that there is a reasonable belief that
portionate share. The amount of a the debtor can be located in the future.
compromise with one debtor is not (b) Financial condition of debtor. The
precedent in determining compromises Administrator may suspend collection
from other debtors who have been de- action on a claim when the debtor
termined to be jointly and severally owns no substantial equity in real or
liable on the claim. personal property and is unable to
make payment on the claim or effect a
§ 13.28 Execution of releases. compromise but the debtor’s future fi-
nancial prospects justify retention of
Upon receipt of full payment of a
the claim for periodic review, provided
claim or the amount compromised,
that:
EPA will prepare and execute a release
(1) The applicable statute of limita-
on behalf of the United States. The re-
tions will not expire during the period
lease will include a provision which
of the suspension, can be tolled or has
voids the release if it was procured by
started running anew;
fraud, misrepresentation, a false claim
(2) Future collection can be effected
or by mutual mistake of fact.
by offset, notwithstanding the 10-year
statute of limitations for administra-
Subpart E—Suspension of tive offsets; or
Collection Action (3) The debtor agrees to pay interest
on the debt and suspension is likely to
§ 13.29 Suspension—general. enhance the debtor’s ability to fully
The Administrator may suspend the pay the principal amount of the debt
Agency’s collection actions on a debt with interest at a later date.
where the outstanding debt principal (c) Request for waiver or administrative
does not exceed $20,000, the Govern- review—mandatory. The Administrator
ment cannot presently collect or en- will suspend collection activity where
force collection of any significant sum a statute provides for mandatory waiv-
from the debtor, the prospects of future er consideration or administrative re-
collection justify retention of the debt view prior to agency collection of a
for periodic review and there is no risk debt. The Administrator will suspend
of expiration of the statute of limita- EPA’s collection actions during the pe-
tions during the period of suspension. riod provided for the debtor to request
Additionally, the Administrator may review or waiver and during the period
waive the assessment of interest, pen- of the Agency’s evaluation of the re-
alty charges and administrative costs quest.
during the period of the suspension. (d) Request for waiver or administrative
Suspension will be for an established review—permissive. The Administrator
179
§ 13.31 40 CFR Ch. I (7–1–00 Edition)
may suspend collection activities on debtor’s ability to pay, and the exemp-
debts of $20,000 or less during the pend- tions available to the debtor under
ency of a permissive waiver or adminis- State and Federal law;
trative review where he determines (b) The debtor cannot be located,
that: there is no security remaining to be
(1) There is a reasonable possibility liquidated, the applicable statute of
that waiver will be granted and the limitations has expired, and the pros-
debtor may be found not owing the pects of collecting by offset are too re-
debt (in whole or in part); mote to justify retention of the claim;
(2) The Government’s interest is pro- (c) The cost of further collection ac-
tected, if suspension is granted, by the tion is likely to exceed the amount re-
reasonable assurance that the debt can coverable;
be recovered if the debtor does not pre- (d) The claim is determined to be le-
vail; or gally without merit; or
(3) Collection of the debt will cause (e) The evidence necessary to prove
undue hardship to the debtor. the claim cannot be produced or the
(e) Refund barred by statute or regula- necessary witnesses are unavailable
tion. The Administrator will ordinarily and efforts to induce voluntary pay-
suspend collection action during the ment have failed.
pendency of his consideration of a
waiver request or administrative re-
view where statute and regulation pre- Subpart G—Referrals
clude refund of amounts collected by
§ 13.33 Referrals to the Department of
the Agency should the debtor prevail. Justice.
The Administrator may decline to sus-
pend collection where he determines (a) Prompt referral. The Administrator
that the request for waiver or adminis- refers to DOJ for litigation all claims
trative review is frivolous or was made on which aggressive collection actions
primarily to delay collection. have been taken but which could not be
collected, compromised, suspended or
terminated. Referrals are made as
Subpart F—Termination of Debts early as possible, consistent with ag-
§ 13.31 Termination—general. gressive agency collection action, and
within the period for bringing a timely
The Administrator may terminate
suit against the debtor.
collection actions and write-off debts,
(1) Unless otherwise provided by DOJ
including accrued interest, penalty and
regulations or procedures, EPA refers
administrative costs, where the debt
for litigation debts of more than
principal does not exceed $20,000. If the
$100,000 to the Commercial Litigation
debt exceeds $20,000, EPA obtains the
Branch, Civil Division, Department of
approval of DOJ in order to terminate
Justice, Washington, DC 20530.
further collection actions. Unless oth-
(2) Unless otherwise provided by DOJ
erwise provided for by DOJ regulations
regulations or procedures, EPA refers
or procedures, requests to terminate
for litigation debts of $100,000 or less to
collection on debts in excess of $100,000
the United States Attorney in whose
are referred to the Commercial Litiga-
judicial district the debtor can be
tion Branch, Civil Division, Depart-
found.
ment of Justice, for approval. Debts in
(b) Claims Collection Litigation Report
excess of $20,000 but $100,000 or less are
(CCLR). Unless an exception has been
referred to the United States Attorney
granted by DOJ, the CCLR is used for
in whose judicial district the debtor
referrals of all administratively
can be found.
uncollectible claims to DOJ and is used
§ 13.32 Standards for termination. to refer all offers of compromise.
A debt may be terminated where the
Administrator determines that: Supbart H—Referral of Debts to IRS
(a) The Government cannot collect or for Tax Refund Offset
enforce collection of any significant
sum from the debtor, having due regard SOURCE: 59 FR 651, Jan. 5, 1994, unless oth-
for available judicial remedies, the erwise noted.
180
§ 13.34 Purpose. be referred to the IRS for offset against

any overpayment of tax;
This subpart establishes procedures
for the Environmental Protection (7) Is at least $25.00; and
Agency (EPA) to refer past-due debts (8) All other requirements of 31
to the Internal Revenue Service (IRS) U.S.C. 3720A and the Department of the
for offset against the income tax re- Treasury regulations at 26 CFR
funds of persons owing debts to EPA. It 301.6402–6 relating to the eligibility of a
specifies the Agency procedures and debt for tax return offset have been
the rights of the debtor applicable to satisfied.
claims for the payment of debts owed
to EPA. § 13.36 Administrative charges.
In accordance with § 13.11, all admin-
§ 13.35 Applicability and scope.
istrative charges incurred in connec-
(a) This subpart implements 31 U.S.C. tion with the referral of a debt to the
3720A, which authorizes the IRS to re- IRS shall be assessed on the debt and
duce a tax refund by the amount of a thus increase the amount of the offset.
past-due legally enforceable debt owed
to the United States. § 13.37 Notice requirement before off-
(b) For purposes of this section, a set.
past-due legally enforceable debt ref- A request for reduction of an IRS tax
erable to the IRS is a debt which is refund will be made only after EPA
owed to the United States and:
makes a determination that an amount
(1) Except in the case of a judgment
is owed and past-due and provides the
debt, has been delinquent for at least
debtor with 60 days written notice.
three months but has not been delin-
quent for more than ten years at the EPA’s notice of intention to collect by
time the offset is made; IRS tax refund offset (Notice of Intent)
(2) Cannot be currently collected pur- will state:
suant to the salary offset provisions of (a) The amount of the debt;
5 U.S.C. 5514(a)(1); (b) That unless the debt is repaid
(3) Is ineligible for administrative within 60 days from the date of EPA’s
offset under 31 U.S.C. 3716(a) by reason Notice of Intent, EPA intends to col-
of 31 U.S.C. 3716(c)(2) or cannot be collect the debt by requesting the IRS to
lected by administrative offset under 31 reduce any amounts payable to the
U.S.C. 3716(a) by the Agency against debtor as refunds of Federal taxes paid
amounts payable to or on behalf of the by an amount equal to the amount of
debtor by or on behalf of the Agency; the debt and all accumulated interest
(4) With respect to which EPA has and other charges;
given the taxpayer at least 60 days (c) That the debtor has a right to
from the date of notification to present present evidence that all or part of the
evidence that all or part of the debt is debt is not past-due or not legally en-
not past-due or not legally enforceable, forceable; and
has considered evidence presented by (d) A mailing address for forwarding
such taxpayer, if any, and has deter- any written correspondence and a con-
mined that an amount of such debt is tact name and phone number for any
past-due and legally enforceable;
questions.
(5) Has been disclosed by EPA to a
consumer reporting agency as author- § 13.38 Review within the Agency.
ized by 31 U.S.C. 3711(f), unless a con-
sumer reporting agency would be pro- (a) Notification by debtor. A debtor
hibited from using such information by who receives a Notice of Intent has the
15 U.S.C. 1681c, or unless the amount of right to present evidence that all or
the debt does not exceed $100.00; part of the debt is not past-due or not
(6) With respect to which EPA has legally enforceable. To exercise this
notified or has made a reasonable at- right, the debtor must:
tempt to notify the taxpayer that the (1) Send a written request for a re-
debt is past-due and, unless repaid view of the evidence to the address pro-
within 60 days thereafter, the debt will vided in the notice;
181
§ 13.39 40 CFR Ch. I (7–1–00 Edition)
(2) State in the request the amount 14.9 Approval and payment of claims.
disputed and the reasons why the debt- 14.10 Procedures for reconsideration.
or believes that the debt is not past- 14.11 Principal types of allowable claims.
due or is not legally enforceable; and 14.12 Principal types of unallowable claims.
(3) Include in the request any docu- 14.13 Items fraudulently claimed.
ments which the debtor wishes to be 14.14 Computation of award.
considered or state that additional in- AUTHORITY: Military Personnel and Civil-
formation will be submitted within the ian Employees’ Claims Act of 1964, as amend-
remainder of the 60-day period. ed (31 U.S.C. 3721).
(b) Submission of evidence. The debtor SOURCE: 51 FR 24146, July 2, 1986, unless
may submit evidence showing that all otherwise noted.
or part of the debt is not past-due or
not legally enforceable along with the § 14.1 Scope and purpose.
notification required by paragraph (a)
This part prescribes regulations for
of this section. Failure to submit the
notification and evidence within 60 the Military Personnel and Civilian
days will result in an automatic refer- Employees’ Claims Act of 1964 (the
ral of the debt to the IRS without fur- Act), 31 U.S.C. 3721. The Act allows the
ther action by EPA. Administrator of the U.S. Environ-
(c) Review of the evidence. EPA will mental Protection Agency (EPA) to
consider all available evidence related settle and pay claims of EPA employ-
to the debt. Within 30 days, if feasible, ees for damage to or loss of their per-
EPA will notify the debtor whether sonal property which was incident to
EPA has sustained, amended, or can- service. A claim under the Act is al-
celled its determination that the debt lowed only where the claim is substan-
is past-due and legally enforceable. tiated and the Administrator deter-
mines that possession of the property
§ 13.39 Agency determination. was reasonable or proper under the cir-
(a) Following review of the evidence, cumstances existing at the time and
EPA will issue a written decision. place of the loss and no part of the loss
(b) If EPA either sustains or amends was caused by any negligent or wrong-
its determination, it shall notify the ful act or omission of the employee or
debtor of its intent to refer the debt to his/her agent.
the IRS for offset against the debtor’s
Federal income tax refund. If EPA can-
cels its original determination, the As used in this part:
debt will not be referred to IRS. (a) EPA Claims Officer is the Agency
official delegated the responsibility by
§ 13.40 Stay of offset. the Administrator to carry out the pro-
If the debtor timely notifies the EPA visions of the Act.
that he or she is exercising the right (b) Claim means a demand for pay-
described in § 13.38(a) and timely sub- ment by an employee or his/her rep-
mits evidence in accordance with resentative for the value or the repair
§ 13.38(b), any notice to the IRS will be cost of an item of personal property
stayed until the issuance of a written damaged, lost or destroyed as an inci-
decision which sustains or amends its dent to government service.
original determination. (c) Employee means a person ap-
pointed to a position with EPA.
PART 14—EMPLOYEE PERSONAL (d) Settle means the act of consid-
PROPERTY CLAIMS ering, ascertaining, adjusting, deter-
mining or otherwise resolving a claim.
Sec. (e) Accrual date means the date of the
14.1 Scope and purpose. incident causing the loss or damage or
14.2 Definitions. the date on which the loss or damage
14.3 Incident to service. should have been discovered by the em-
14.4 Reasonable and proper.
ployee through the exercise of reason-
14.5 Who may file a claim.
14.6 Time limits for filing a claim. able care.
14.7 Where to file a claim. (f) Depreciation is the reduction in
14.8 Investigation of claims. value of an item caused by the elapse
182
of time between the date of acquisition Claims Officer may consider a claim
and the date of loss or damage. not filed within this period when the
claim accrued during a period of armed
§ 14.3 Incident to service. conflict and the requirements of 31
In order for a claim to be allowed U.S.C. 3721(g) are met.
under this part, the EPA Claims Officer
must determine that the item of per- § 14.7 Where to file a claim.
sonal property, at the time of damage An employee or his/her representa-
or loss, was used by the employee as an tive may file a claim with his/her Ad-
incident to government service. An ministrative Office or the Safety Office
item is incident to service when posses- for the facility. The employee should
sion of the item by the employee had complete and submit to the Adminis-
substantial relationship to the employ- trative Office or the Safety Office a
ee’s performance of duty. Whether an completed EPA Form 3370–1, ‘‘Em-
item is incident to service is deter- ployee Claim for Loss of or Damage to
mined by the facts of each claim. The Personal Property.’’ That Office then
employee has the burden of showing forwards the form and any other rel-
that the item was incident to his/her evant information to the EPA Claims
governmental service. Officer, Office of General Counsel (LE–
132G), 401 M Street SW., Washington,
§ 14.4 Reasonable and proper.
DC 20460.
EPA does not insure its employees
from every loss or damage to personal § 14.8 Investigation of claims.
property they may sustain. In order for
The EPA Claims Officer investigates
a claim to be allowed, the item must
claims filed under this part. The EPA
not only have been incident to service,
Claims Officer may request additional
it must also have been reasonable and
documentation from an employee (e.g.,
proper for the employee to possess the
repair estimates and receipts), inter-
item at the time and place of its loss or
view witnesses, and conduct any fur-
damage. Generally, the possession of
ther investigation he believes is war-
an item is reasonable and proper when
ranted by the facts of the claim.
the item is of a type and quantity
which EPA reasonably expected its em- § 14.9 Approval and payment of claims.
ployees to possess at the time and
place of the loss or damage. Con- (a) EPA’s approval and payment of a
sequently, items which are exception- claim is limited by the Act to $25,000.
ally expensive, excessive quantities of The EPA Claims Officer considers, ad-
otherwise allowable items, personal justs, determines, compromises and
items which are used in place of items settles all claims filed under this part.
usually provided to employees by EPA The decision of the EPA Claims Officer
or items which are primarily of aes- is final unless reconsideration under
thetic value are not considered reason- § 14.10 is granted.
able or proper items and are unallow- (b) The EPA Claims Officer will ap-
able. prove and pay claims filed for a de-
ceased employee by persons specified in
§ 14.5 Who may file a claim. § 14.5 in the following order:
A claim may be filed by an employee (1) The spouse’s claim.
or by his/her authorized agent or legal (2) A child’s claim.
representative. If a claim is otherwise (3) A parent’s claim.
allowable under this part, a claim can (4) A brother’s or sister’s claim.
be filed by a surviving spouse, child,
parent, brother or sister of a deceased § 14.10 Procedures for reconsideration.
employee. The EPA Claims Officer, at his dis-
cretion, may reconsider a decision
§ 14.6 Time limits for filing a claim. when the employee establishes that an
A claim under this part is considered error was made in the computation of
by the EPA Claims Officer only if it is the award or that evidence or material
in writing and received within two facts were unavailable to the employee
years after the claim accrues. The EPA at the time of the filing of the claim
183
§ 14.11 40 CFR Ch. I (7–1–00 Edition)
and the failure to provide the informa- dinary risk in the employee’s perform-
tion was not the result of the employ- ance of duty and the use of the vehicle
ee’s lack of care. An employee seeking was at the specific direction of the em-
reconsideration of a decision must file, ployee’s supervisor.
within 30 days of the date of the deci- (c) Claims for articles of clothing.
sion, a written request with the EPA Claims for loss or damage to clothing
Claims Officer for reconsideration. The and accessories worn by an employee
request for reconsideration must speci- may be allowed where:
fy, where applicable, the error, the evi- (1) The damage or loss occurred dur-
dence or material facts not previously ing the employee’s performance of offi-
considered by the EPA Claims Officer cial duty in an unusual or extraor-
and the reason why the employee be-
dinary risk situation;
lieves that the evidence or facts pre-
(2) The loss or damage occurred dur-
viously were not available.
ing the employee’s response to an
§ 14.11 Principal types of allowable emergency situation, to a natural dis-
claims. aster such as fire, flood, hurricane, or
(a) General. A claim under this part is to a man-made disaster such as a
allowed for tangible personal property chemical spill;
of a type and quantity that was reason- (3) The loss or damage was caused by
able and proper for the employee to faulty or defective equipment or fur-
possess under the circumstances at the niture maintained by EPA; or
time of the loss or damage. In evalu- (4) The item was stolen even though
ating whether a claim is allowable, the the employee took reasonable pre-
EPA Claims Officer may consider such cautions to protect the item from
factors as: The employee’s use of the theft.
item; whether EPA generally is aware (d) Claims for loss or damage to house-
that such items are used by its employ- hold items. (1) Claims for damages to
ees; or whether the loss was caused by household goods may be allowed where:
a failure of EPA to provide adequate (i) The loss or damages occurred
protection against the loss. while the goods were being shipped pur-
(b) Examples of claims which are allow- suant to an EPA authorized change in
able. Claims which are ordinarily al- duty station;
lowed include loss or damage which oc- (ii) The employee filed a claim for
curred: the damages with the appropriate car-
(1) In a place officially designated for rier; and
storage of property such as a ware-
(iii) The employee substantiates that
house, office, garage, or other storage
he/she has suffered a loss in excess of
place;
the amount paid by the carrier.
(2) In a marine, rail, aircraft, or
other common disaster or natural dis- (2) Where a carrier has refused to
aster such as a fire, flood, or hurricane; make an award to an employee because
(3) When the personal property was of his/her failure to comply with the
subjected to an extraordinary risk in carrier’s claims procedures, any award
the employee’s performance of duty, by EPA will be reduced by the max-
such as in connection with an emer- imum amount payable for the item by
gency situation, a civil disturbance, the carrier under its contract of ship-
common or natural disaster, or during ment. Where an employee fails to no-
efforts to save government property or tify the carrier of damages or loss, ei-
human life; ther at the time of delivery of the
(4) When the property was used for household goods or within a reasonable
the benefit of the government at the time after discovery, any award by
specific direction of a supervisor; EPA will be reduced by the amount of
(5) When the property was money or the carrier’s maximum contractual li-
other valuables deposited with an au- ability for the damage or loss. The em-
thorized government agent for safe- ployee has the burden of proving his/
keeping; and her entitlement to reimbursement
(6) When the property was a vehicle from EPA for amounts in excess of that
which was subjected to an extraor- allowed by the carrier.
184
§ 14.12 Principal types of unallowable the EPA Claims Officer determines

claims. that the employee intentionally has
Claims that ordinarily will not be al- materially misrepresented the costs,
lowed include: conditions or nature of repairs of the
(a) Loss or damage totaling less than claim, he will refer it to appropriate of-
$25; ficials (e.g., Inspector General, the em-
(b) Money or currency, except when ployee’s supervisor, etc.) for action.
deposited with an authorized govern-
§ 14.14 Computation of award.
ment agency for safekeeping;
(c) Loss or damage to an item of ex- (a) The amount awarded on any item
traordinary value or to an antique may not exceed its adjusted cost. Ad-
where the item was shipped with justed cost is either the purchase price
household goods, unless the employee of the item or its value at the time of
filed a valid appraisal or authentica- acquisition, less appropriate deprecia-
tion with the carrier prior to shipment tion. The amount normally payable for
of the item; property damaged beyond economical
(d) Loss of bankbooks, checks, notes, repair is its depreciated value imme-
stock certifications, money orders, or diately before the loss or damage, less
travelers checks; any salvage value. If the cost of repair
(e) Property owned by the United is less than the depreciated value, it
States unless the employee is finan- will be considered to be economically
cially responsible for it to another gov- repairable and only the cost of repair
ernment agency; will be allowable.
(f) Claims for loss or damage to a bi- (b) Notwithstanding a contract to the
cycle or a private motor vehicle, unless contrary, the representative of an em-
allowable under § 14.11(b)(6); ployee is limited by 31 U.S.C. 3721(i) to
(g) Losses of insurers or subrogees; receipt of not more than 10 percent of
(h) Losses recoverable from insurers the amount of an award under this part
or carriers; for services related to the claim. A per-
(i) Losses recovered or recoverable son violating this paragraph is subject
pursuant to contract; to a fine of not more than $1,000. 31
(j) Claims for damage or loss caused, U.S.C. 3721(i).
in whole or in part, by the negligent or
wrongful acts of the employee or his/ PART 16—IMPLEMENTATION OF
her agent; PRIVACY ACT OF 1974
(k) Property used for personal busi-
ness or profit; Sec.
(l) Theft from the possession of the 16.1 Purpose and scope.
employee unless the employee took 16.2 Definitions.
reasonable precautions to protect the 16.3 Procedures for requests pertaining to
item from theft; individual records in a record system.
(m) Property acquired, possessed or 16.4 Times, places, and requirements for
transported in violation of law or regu- identification of individuals making re-
quests.
lations;
16.5 Disclosure of requested information to
(n) Unserviceable property; or individuals.
(o) Damage or loss to an item during 16.6 Special procedures: Medical records.
shipment of household goods where the 16.7 Request for correction or amendment
damage or loss was caused by the em- of record.
ployee’s negligence in packing the 16.8 Initial determination on request for
item. correction or amendment of record.
16.9 Appeal of initial adverse agency deter-
§ 14.13 Items fraudulently claimed. mination on request for correction or
amendment.
Where the EPA Claims Officer deter- 16.10 Disclosure of record to person other
mines that an employee has inten- than the individual to whom it pertains.
tionally misrepresented the cost, con- 16.11 Fees.
dition, cost of repair or a material fact 16.12 Penalties.
concerning a claim, he/she may, at his 16.13 General exemptions.
discretion, deny the entire amount 16.14 Specific exemptions.
claimed for the item. Further, where AUTHORITY: 5 U.S.C. 552a.
185
§ 16.1 40 CFR Ch. I (7–1–00 Edition)
SOURCE: 40 FR 53582, Nov. 19, 1975, unless (b) The name of the system of records
otherwise noted. (as set forth in the EPA notice of sys-
tems) to which the request relates;
§ 16.1 Purpose and scope.
(c) Any other information which the
(a) This part sets forth the Environ- system notice indicates should be in-
mental Protection Agency procedures cluded; and
under the Privacy Act of 1974 as re- (d) If the request is for access, a
quired by 5 U.S.C. 552a(f). statement as to whether a personal in-
(b) These procedures describe how an spection or a copy by mail is desired.
individual may request notification of
whether EPA maintains a record per- § 16.4 Times, places, and requirements
taining to him or her in any of its sys- for identification of individuals
tems of records, request access to the making requests.
record or to an accounting of its disclo- (a) If an individual submitting a re-
sure, request that the record be amend- quest for access under § 16.3 has asked
ed or corrected, and appeal an initial that EPA authorize a personal inspec-
adverse determination concerning any tion of records, and EPA has granted
such request. the request, he or she may present
(c) These procedures apply only to re- himself or herself at the time and place
quests by individuals and only to rec- specified in EPA’s response or arrange
ords maintained by EPA, excluding another time with the appropriate
those systems specifically exempt agency official.
under §§ 16.13 and 16.14 and those deter- (b) Prior to inspection of records, an
mined as government-wide and pub- individual shall present sufficient iden-
lished by the Civil Service Commission tification (e.g., driver’s license, em-
in 5 CFR parts 293 and 297. ployee identification card, social secu-
rity card, credit card) to establish that
§ 16.2 Definitions. he or she is the individual to whom the
As used in this part: records pertain. An individual who is
(a) The terms individual, maintain, unable to provide such identification
record, system of records, and routine use shall complete and sign, in the pres-
shall have the meaning given them by ence of an agency official, a statement
5 U.S.C. 552a (a)(2), (a)(3), (a)(4), (a)(5) declaring his or her identity and stipu-
and (a)(7), respectively. lating that he or she understands it is
(b) EPA means the Environmental a misdemeanor punishable by fine up
Protection Agency. to $5,000 to knowingly and willfully
(c) Working days means calendar days seek or obtain access to records about
excluding Saturdays, Sundays, and another individual under false pre-
legal public holidays. tenses.
(c) If an individual, having requested
§ 16.3 Procedures for requests per- personal inspection of his or her
taining to individual records in a records, wishes to have another person
record system. accompany him or her during inspec-
Any individual who wishes to have tion, he or she shall submit a written
EPA inform him or her whether a sys- statement authorizing disclosure in the
tem of records maintained by EPA con- presence of the other person(s).
tains any record pertaining to him or (d) An individual who has made a per-
her which is retrieved by name or personal inspection of records may then
sonal identifier, or who wishes to re- request copies of those records. Such
quest access to any such record, shall requests may be granted, but fees may
submit a written request in accordance be charged in accordance with § 16.11.
with the instructions set forth in (e) If an individual submitting a re-
EPA’s annual notice of systems for quest under § 16.3 wishes to have copies
that system of records. This request furnished by mail, he or she must in-
shall include: clude with the request sufficient data
(a) The name of the individual mak- to allow EPA to verify his or her iden-
ing the request; tity. Should sensitivity of the records
186
warrant it, EPA may require a re- the system manager determines would
quester to submit a signed and nota- be harmful to the individual to whom
rized statement indicating that he or they relate, EPA may refuse to disclose
she is the individual to whom the the records directly to the individual
records pertain and that he or she un- and instead offer to transmit them to a
derstands it is a misdemeanor punish- physician designated by the individual.
able by fine up to $5,000 to knowingly
and willfully seek or obtain access to § 16.7 Request for correction or
records about another individual under amendment of record.
false pretenses. Such mail requests (a) An individual may request correc-
may be granted, but fees may be tion or amendment of any record per-
charged in accordance with § 16.11. taining to him or her in a system of
(f) No verification of identity will be records maintained by EPA by submit-
required where the records sought are ting to the system manager, in writing,
publicly available under the Freedom the following:
of Information Act, as EPA procedures (1) The name of the individual mak-
under 40 CFR part 2 will then apply. ing the request;
(2) The name of the system, as de-
§ 16.5 Disclosure of requested informa-
tion to individuals. scribed in the notice of systems;
(3) A description of the nature and
(a) Each request received will be substance of the correction or amend-
acted upon promptly. ment request; and
(b) Within 10 working days of receipt
(4) Any additional information speci-
of a request, the system manager shall
fied in the system notice.
acknowledge the request. Whenever
practicable, the acknowledgment will (b) Any person submitting a request
indicate whether or not access will be under this section shall include suffi-
granted and, if so, when and where. cient information in support of that re-
When access is to be granted, it shall quest to allow EPA to apply the stand-
be provided within 30 working days of ards set forth in 5 U.S.C. 552a (e)(1) and
first receipt. If the agency is unable to (e)(5).
meet this deadline, the records system (c) Any person whose request is de-
manager shall so inform the requester nied may appeal that denial to the Pri-
stating reasons for the delay and an es- vacy Act Officer.
timate of when access will be granted. (d) In the event that appeal is denied,
(c) If a request pursuant to § 16.3 for the requester may bring a civil action
access to a record is in a system of rec- to seek review of the denial, under 5
ords which is exempted, the records U.S.C. 552a(g).
system manager will determine wheth-
er the information will nonetheless be § 16.8 Initial determination on request
for correction or amendment of
made available. If the determination is record.
to deny access, the reason for denial
and the appeal procedure will be given (a) Within 10 working days of receipt
to the requester. of a request for amendment or correc-
(d) Any person whose request is inition, the system manager shall ac-
tially denied may appeal that denial to knowledge the request, and promptly
the Privacy Act Officer, who shall either:
make an appeal determination within (1) Make any correction, deletion, or
10 working days. addition which the requester believes
(e) If the appeal under paragraph (d) should be made; or
of this section is denied, the requester (2) Inform the requester of his or her
may bring a civil action under 5 U.S.C. refusal to correct or amend the record,
552a(g) to seek review of the denial. the reason for refusal, and the proce-
dures for appeal.
§ 16.6 Special procedures: Medical rec- (b) If the system manager is unable
ords. to comply with the preceding para-
Should EPA receive a request for ac- graphs within 30 working days of his or
cess to medical records (including psy- her receipt of a request, he or she will
chological records) disclosure of which inform the requester of that fact, the
187
§ 16.9 40 CFR Ch. I (7–1–00 Edition)
reasons, and an estimate of when a de- period and notifies the requester. Such
termination will be reached. extension will be utilized only in ex-
(c) In conducting the review of the ceptional circumstances.
request, the system manager will be (c) In conducting the review of an ap-
guided by the requirements of 5 U.S.C. peal, the Privacy Act Officer will be
552a (e)(1) and (e)(5). guided by the requirements of 5 U.S.C.
(d) If the system manager determines 552a (e)(1) and (e)(5).
to grant all or any portion of the re- (d) If the Privacy Act Officer deter-
quest, he or she will: mines to grant all or any portion of an
(1) Advise the individual of that de- appeal he or she shall so inform the re-
termination; quester and EPA shall make the cor-
(2) Make the correction or amend- rection or amendment and comply with
ment; and § 16.8(d)(3).
(3) So inform any person or agency (e) If the Privacy Act Officer deter-
outside EPA to whom the record has mines not to grant all or any portion of
been disclosed, and, where an account- an appeal he or she shall inform the re-
ing of that disclosure is maintained in quester:
accordance with 5 U.S.C. 552a(c), note (1) Of the determination and its
the occurrence and substance of the basis;
correction or amendment in the ac- (2) Of the requester’s right to file a
counting. concise statement of reasons for dis-
(e) If the system manager determines agreeing with EPA’s decision;
not to grant all or any portion of a re- (3) Of the procedures for filing such
quest for correction or amendment, he statement of disagreement;
or she will:
(4) That such statements of disagree-
(1) Comply with paragraph (d)(3) of
ments will be made available in subse-
this section (if necessary);
quent disclosures of the record, to-
(2) Advise the individual of the deter-
gether with an agency statement (if
mination and its basis;
deemed appropriate) summarizing its
(3) Inform the individual that an ap- refusal;
peal may be made; and
(5) That prior recipients of the dis-
(4) Describe the procedures for mak-
puted record will be provided with
ing the appeal.
statements as in paragraph (e)(4) of
(f) If EPA receives from another Fed-
this section, to the extent that an ac-
eral agency a notice of correction or
counting of disclosures is maintained
amendment of information furnished
under 5 U.S.C. 552a(c); and
by that agency and contained in one of
EPA’s systems of records, the system (6) Of the requester’s right to seek ju-
manager shall advise the individual dicial review under 5 U.S.C. 552a(g).
and make the correction as if EPA had § 16.10 Disclosure of record to person
originally made the correction or other than the individual to whom
amendment. it pertains.
§ 16.9 Appeal of initial adverse agency EPA shall not disclose any record
determination on request for cor- which is contained in a system of
rection or amendment. records it maintains except pursuant
(a) Any individual whose request for to a written request by, or with the
correction or amendment is initially written consent of, the individual to
denied by EPA and who wishes to ap- whom the record pertains, unless the
peal may do so by letter to the Privacy disclosure is authorized by one or more
Act Officer. The appeal shall contain a of the provisions of 5 U.S.C. 552a(b).
description of the initial request suffi-
cient to identify it. § 16.11 Fees.
(b) The Privacy Act Officer shall No fees shall be charged for providing
make a final determination not later the first copy of a record or any por-
than 30 working days from the date on tion to an individual to whom the
which the individual requests the re- record pertains. The fee schedule for
view, unless, for good cause shown, the reproducing other records is the same
Privacy Act Officer extends the 30-day as that set forth in 40 CFR 2.120.
188
§ 16.12 Penalties. (OCI) of the National Enforcement In-

The Act provides, in pertinent part: vestigations Center (NEIC), a compo-
‘‘Any person who knowingly and will- nent of EPA which performs as its
fully requests or obtains any record principal function activities pertaining
concerning an individual from an agen- to the enforcement of criminal laws.
cy under false pretenses shall be guilty Authority for the criminal law enforce-
of a misdemeanor and fined not more ment activities of the NEIC’s Office of
than $5,000.’’ (5 U.S.C. 552a(i)(3).) Criminal Investigations is 28 U.S.C. 533,
with appointment letter from Ben-
§ 16.13 General exemptions. jamin Civiletti, Attorney General, to
Douglas Costle, Administrator, EPA,
(a) Systems of records affected.
dated January 16, 1981.
¶ EPA–4 OIG Criminal Investigative Index (3) The systems of records identified
and Files—EPA/OIG. in § 16.13(a) are exempted from the fol-
¶ EPA–17 NEIC Criminal Investigative Index lowing provisions of the Privacy Act of
and Files—EPA/NEIC/OCI.
1974: 5 U.S.C. 552a (c)(3) and (4); (d);
(b) Authority. Under 5 U.S.C. (e)(1), (2), (3), (4)(G), (H), and (I), (5),
552a(j)(2), the head of any agency may and (8); (f); and (g).
by rule exempt any system of records (4) To the extent that the exemption
within the agency from certain provi- claimed under 5 U.S.C. 552a(j)(2) is held
sions of the Privacy Act of 1974, if the to be invalid for the systems of records
system of records is maintained by an identified in § 16.13(a), then an exemp-
agency or component thereof which tion under 5 U.S.C. 552a(k)(2) is claimed
performs as its principal function any for these systems of records.
activity pertaining to the enforcement (d) Reasons for exemption. The sys-
of criminal laws and which consists of: tems of records identified in § 16.13(a)
(1) Information compiled for the pur- are exempted from the above provi-
pose of identifying individual criminal sions of the Privacy Act of 1974 for the
offenders and alleged offenders and following reasons:
consisting only of identifying data and (1) 5 U.S.C. 552a(c)(3) requires an
notations of arrests, the nature and agency to make the accounting of each
disposition of criminal charges, sen- disclosure of records available to the
tencing, confinement, release, and pa- individual named in the record at his
role and probation status; request. These accountings must state
(2) Information compiled for the pur- the date, nature, and purpose of each
pose of a criminal investigation, in- disclosure of a record and the name and
cluding reports of informants and in- address of the recipient. Accounting for
vestigators, and associated with an each disclosure would alert the sub-
identifiable individual; or jects of an investigation to the exist-
(3) Reports identifiable to an indi- ence of the investigation and the fact
vidual compiled at any stage of the that they are subjects of the investiga-
process of enforcement of the criminal tion. The release of such information
laws from arrest or indictment through to the subjects of an investigation
release from supervision. would provide them with significant in-
(c) Scope of exemption. (1) The EPA–4 formation concerning the nature of the
system of records identified in § 16.13(a) investigation, and could seriously im-
is maintained by the Office of Inves- pede or compromise the investigation,
tigations of the Office of Inspector endanger the physical safety of con-
General (OIG), a component of EPA fidential sources, witnesses, law en-
which performs as its principal func- forcement personnel and their families,
tion activities pertaining to the en- and lead to the improper influencing of
forcement of criminal laws. Authority witnesses, the destruction of evidence,
for the criminal law enforcement ac- or the fabrication of testimony.
tivities of the OIG’s Office of Investiga- (2) 5 U.S.C. 552a(c)(4) requires an
tions is the Inspector General Act of agency to inform any person or other
1978, 5 U.S.C. app. agency about any correction or nota-
(2) The EPA–17 system of records tion of dispute made by the agency in
identified in § 16.13(a) is maintained by accordance with subsection (d) of the
the Office of Criminal Investigations Act. Since EPA is claiming that these
189
§ 16.13 40 CFR Ch. I (7–1–00 Edition)
systems of records are exempt from vestigation, the investigator may ob-
subsection (d) of the Act, concerning tain information which is incidental to
access to records, this section is inap- the main purpose of the investigation
plicable and is exempted to the extent but which may relate to matters under
that these systems of records are ex- the investigative jurisdiction of an-
empted from subsection (d) of the Act. other agency. Such information cannot
(3) 5 U.S.C. 552a(d) requires an agency readily be segregated. Furthermore,
to permit an individual to gain access during the course of the investigation,
to records pertaining to him, to re- the investigator may obtain informa-
quest amendment to such records, to tion concerning the violation of laws
request a review of an agency decision other than those which are within the
not to amend such records, and to con- scope of his jurisdiction. In the interest
test the information contained in such of effective law enforcement, the EPA
records. Granting access to records in investigators should retain this infor-
these systems of records could inform mation, since it can aid in establishing
the subject of an investigation of an patterns of criminal activity and can
actual or potential criminal violation provide valuable leads for other law en-
of the existence of that investigation, forcement agencies.
of the nature and scope of the informa- (5) 5 U.S.C. 552a(e)(2) requires an
tion and evidence obtained as to his ac- agency to collect information to the
tivities, of the identity of confidential greatest extent practicable directly
sources, witnesses, and law enforce- from the subject individual when the
ment personnel, and could provide in- information may result in adverse de-
formation to enable the subject to terminations about an individual’s
avoid detection or apprehension. rights, benefits, and privileges under
Granting access to such information Federal programs. The application of
could seriously impede or compromise this provision could impair investiga-
an investigation, endanger the physical tions and law enforcement by alerting
safety of confidential sources, wit- the subject of an investigation of the
nesses, law enforcement personnel and existence of the investigation, enabling
their families, lead to the improper in- the subject to avoid detection or appre-
fluencing of witnesses, the destruction hension, to influence witnesses improp-
of evidence, or the fabrication of testi- erly, to destroy evidence, or to fab-
mony, and disclose investigative tech- ricate testimony. Moreover, in certain
niques and procedures. In addition, circumstances the subject of an inves-
granting access to such information tigation cannot be required to provide
could disclose classified, security-sen- information to investigators, and infor-
sitive, or confidential business information must be collected from other
mation and could constitute an unwar- sources. Furthermore, it is often nec-
ranted invasion of the personal privacy essary to collect information from
of others. sources other than the subject of the
(4) 5 U.S.C. 552a(e)(1) requires each investigation to verify the accuracy of
agency to maintain in its records only the evidence collected.
such information about an individual (6) 5 U.S.C. 552a(e)(3) requires an
as is relevant and necessary to accom- agency to inform each person whom it
plish a purpose of the agency required asks to supply information, on a form
by statute or by executive order of the that can be retained by the person, of
President. The application of this pro- the authority under which the informa-
vision could impair investigations and tion is sought and whether disclosure
law enforcement, because it is not al- is mandatory or voluntary; of the prin-
ways possible to detect the relevance cipal purposes for which the informa-
or necessity of specific information in tion is intended to be used; of the rou-
the early stages of an investigation. tine uses which may be made of the in-
Relevance and necessity are often ques- formation; and of the effects on the
tions of judgment and timing, and it is person, if any, of not providing all or
only after the information is evaluated any part of the requested information.
that the relevance and necessity of The application of this provision could
such information can be established. In provide the subject of an investigation
addition, during the course of the in- with substantial information about the
190
nature of that investigation, which fines maintain to include the collection

could interfere with the investigation. of information, complying with this
Moreover, providing such a notice to provision would prevent the collection
the subject of an investigation could of any data not shown to be accurate,
seriously impede or compromise on un- relevant, timely, and complete at the
dercover investigation by revealing its moment it is collected. In collecting
existence and could endanger the phys- information for criminal law enforce-
ical safety of confidential sources, wit- ment purposes, it is not possible to de-
nesses, and investigators by revealing termine in advance what information
their identities. is accurate, relevant, timely, and com-
(7) 5 U.S.C. 552a(e)(4)(G) and (H) re- plete. Facts are first gathered and then
quire an agency to publish a FEDERAL placed into a logical order to prove or
REGISTER notice concerning its proce- disprove objectively the criminal be-
dures for notifying an individual at his havior of an individual. Material which
request if the system of records con- may seem unrelated, irrelevant, or in-
tains a record pertaining to him, how complete when collected may take on
he can gain access to such a record, added meaning or significance as the
and how he can contest its content. investigation progresses. The restric-
Since EPA is claiming that these sys- tions of this provision could interfere
tems of records are exempt from sub- with the preparation of a complete in-
section (f) of the Act, concerning agen- vestigative report, thereby impeding
cy rules, and subsection (d) of the Act, effective law enforcement.
concerning access to records, these re- (10) 5 U.S.C. 552a(e)(8) requires an
quirements are inapplicable and are ex- agency to make reasonable efforts to
empted to the extent that these sys- serve notice on an individual when any
tems of records are exempted from sub- record on such individual is made
sections (f) and (d) of the Act. Al- available to any person under compul-
though EPA is claiming exemption sory legal process when such process
from these requirements, EPA has pub- becomes a matter of public record.
lished such a notice concerning its no- Complying with this provision could
tification, access, and contest proce- prematurely reveal an ongoing crimi-
dures because, under certain cir- nal investigation to the subject of the
cumstances, EPA might decide it is ap- investigation.
propriate for an individual to have ac- (11) 5 U.S.C. 552a(f)(1) requires an
cess to all or a portion of his records in agency to promulgate rules which shall
these systems of records. establish procedures whereby on an in-
(8) 5 U.S.C. 552a(e)(4)(I) requires an dividual can be notified in response to
agency to publish a FEDERAL REGISTER his request if any system of records
notice concerning the categories of named by the individual contains a
sources of records in the system of record pertaining to him. The applica-
records. Exemption from this provision tion of this provision could impede or
is necessary to protect the confiden- compromise an investigation or pros-
tiality of the sources of information, to ecution if the subject of an investiga-
protect the privacy and physical safety tion was able to use such rules to learn
of confidential sources and witnesses, of the existence of an investigation be-
and to avoid the disclosure of inves- fore it could be completed. In addition,
tigative techniques and procedures. Al- mere notice of the fact of an investiga-
though EPA is claiming exemption tion could inform the subject or others
from this requirement, EPA has pub- that their activities are under or may
lished such a notice in broad generic become the subject of an investigation
terms in the belief that this is all sub- and could enable the subjects to avoid
section (e)(4)(I) of the Act requires. detection or apprehension, to influence
(9) 5 U.S.C. 552a(e)(5) requires an witnesses improperly, to destroy evi-
agency to maintain its records with dence, or to fabricate testimony. Since
such accuracy, relevance, timeliness, EPA is claiming that these systems of
and completeness as is reasonably nec- records are exempt from subsection (d)
essary to assure fairness to the indi- of the Act, concerning access to
vidual in making any determination records, the requirements of sub-
about the individual. Since the Act de- sections (f)(2) through (5) of the Act,
191
§ 16.14 40 CFR Ch. I (7–1–00 Edition)
concerning agency rules for obtaining § 16.14 Specific exemptions.

access to such records, are inapplicable (a) Exemptions under 5 U.S.C.
and are exempted to the extent that 552a(k)(2)—(1) Systems of records af-
these systems of records are exempted fected.
from subsection (d) of the Act. Al-
¶ EPA–2 General Personnel Records—EPA.
though EPA is claiming exemption
¶ EPA–4 OIG Criminal Investigative Index
from the requirements of subsection (f) and Files—EPA/OIG.
of the Act, EPA has promulgated rules ¶ EPA–5 OIG Personnel Security Files—EPA/
which establish Agency procedures be- OIG.
cause, under certain circumstances, it ¶ EPA–17 NEIC Criminal Investigative Index
might be appropriate for an individual and Files— EPA/NEIC/OCI.
¶ EPA–30 OIG Hotline Allegation System—
to have access to all or a portion of his EPA/OIG.
records in these systems of records.
These procedures are described else- (2) Authority. Under 5 U.S.C.
where in this part. 552a(k)(2), the head of any agency may
by rule exempt any system of records
(12) 5 U.S.C. 552a(g) provides for civil
within the agency from certain provi-
remedies if an agency fails to comply sions of the Privacy Act of 1974, if the
with the requirements concerning ac- system of records is investigatory ma-
cess to records under subsections (d)(1) terial compiled for law enforcement
and (3) of the Act; maintenance of purposes, other than material within
records under subsection (e)(5) of the the scope of subsection (j)(2).
Act; and any other provision of the (3) Scope of exemption. (i) The systems
Act, or any rule promulgated thereof records identified in § 16.14(a)(1) are
under, in such a way as to have an ad- exempted from the following provisions
verse effect on an individual. Since of the Privacy Act of 1974, subject to
EPA is claiming that these systems of the limitations set forth in 5 U.S.C.
records are exempt from subsections 552a(k)(2): 5 U.S.C. 552a (c)(3); (d); (e)(1),
(c)(3) and (4), (d), (e)(1), (2), (3), (4)(G), (4)(G), (H), and (I); and (f).
(H), and (I), (5), and (8), and (f) of the (ii) An individual is ‘‘denied any
Act, the provisions of subsection (g) of right, privilege, or benefit that he
the Act are inapplicable and are ex- would otherwise be entitled by Federal
empted to the extent that these sys- law, or for which he would otherwise be
tems of records are exempted from eligible, as a result of the maintenance
those subsections of the Act. of such material,’’ only if the Agency
actually uses the material in denying
(e) Exempt records provided by another
or proposing to deny such right, privi-
agency. Individuals may not have ac- lege, or benefit.
cess to records maintained by the EPA (iii) To the extent that records con-
if such records were provided by an- tained in the systems of records identi-
other agency which has determined by fied in § 16.14(a)(1) are maintained by
regulation that such records are sub- the Office of Investigations of the OIG
ject to general exemption under 5 or by the Office of Criminal Investiga-
U.S.C. 552a(j). If an individual requests tions of the NEIC, components of EPA
access to such exempt records, EPA which perform as their principal func-
will consult with the source agency. tion activities pertaining to the en-
(f) Exempt records included in a non- forcement of criminal laws, then an ex-
exempt system of records. All records ob- emption under 5 U.S.C. 552a(j)(2) is
tained from a system of records which claimed for these records.
has been determined by regulation to (4) Reasons for exemption. The systems
be subject to general exemption under of records identified in § 16.14(a)(1) are
5 U.S.C. 552a(j) retain their exempt sta- exempted from the above provisions of
tus even if such records are also in- the Privacy Act of 1974 for the fol-
cluded in a system of records for which lowing reasons:
a general exemption has not been (i) 5 U.S.C. 552a(c)(3) requires an
agency to make the accounting of each
claimed.
disclosure of records available to the
[51 FR 24146, July 2, 1986] individual named in the record at his
request. These accountings must state
192
the date, nature, and purpose of each by statute or by executive order of the
disclosure of a record and the name and President. The application of this pro-
address of the recipient. Accounting for vision could impair investigations and
each disclosure would alert the sub- law enforcement, because it is not al-
jects of an investigation to the exist- ways possible to detect the relevance
ence of the investigation and the fact or necessity of specific information in
that they are subjects of the investiga- the early stages of an investigation.
tion. The release of such information Relevance and necessity are often ques-
to the subjects of an investigation tions of judgment and timing, and it is
would provide them with significant in- only after the information is evaluated
formation concerning the nature of the that the relevance and necessity of
investigation, and could seriously im- such information can be established. In
pede or compromise the investigation, addition, during the course of the in-
endanger the physical safety of con- vestigation, the investigator may ob-
fidential sources, witnesses, law en- tain information which is incidental to
forcement personnel and their families, the main purpose of the investigation
and lead to the improper influencing of but which may relate to matters under
witnesses, the destruction of evidence, the investigative jurisdiction of an-
or the fabrication of testimony. other agency. Such information cannot
(ii) 5 U.S.C. 552a(d) requires an agen- readily be segregated. Furthermore,
cy to permit an individual to gain ac- during the course of the investigation,
cess to records pertaining to him, to the investigator may obtain informa-
request amendment to such records, to tion concerning the violation of laws
request a review of an agency decision other than those which are within the
not to amend such records, and to con- scope of his jurisdiction. In the interest
test the information contained in such of effective law enforcement, EPA in-
records. Granting access to records in vestigators should retain this informa-
these systems of records could inform tion, since it can aid in establishing
the subject of an investigation of an patterns of criminal activity and can
actual or potential criminal violation provide valuable leads for other law en-
of the existence of that investigation, forcement agencies.
of the nature and scope of the informa- (iv) 5 U.S.C. 552a(e)(4)(G) and (H) re-
tion and evidence obtained as to his acquire an agency to publish a FEDERAL
tivities, of the identity of confidential REGISTER notice concerning its proce-
sources, witnesses, and law enforce- dures for notifying an individual at his
ment personnel, and could provide in- request if the system of records con-
formation to enable the subject to tains a record pertaining to him, how
avoid detection or apprehension. he can gain access to such a record,
Granting access to such information and how he can contest its content.
could seriously impede or compromise Since EPA is claiming that these sys-
an investigation, endanger the physical tems of records are exempt from sub-
safety of confidential sources, wit- section (f) of the Act, concerning agen-
nesses, law enforcement personnel and cy rules, and subsection (d) of the Act,
their families, lead to the improper in- concerning access to records, these re-
fluencing of witnesses, the destruction quirements are inapplicable and are ex-
of evidence, or the fabrication of testi- empted to the extent that these sys-
mony, and disclose investigative tech- tems of records are exempted from sub-
niques and procedures. In addition, sections (f) and (d) of the Act. Al-
granting access to such information though EPA is claiming exemption
could disclose classified, security-sen- from these requirements, EPA has pub-
sitive, or confidential business infor- lished such a notice concerning its no-
mation and could constitute an unwar- tification, access, and contest proce-
ranted invasion of the personal privacy dures because, under certain cir-
of others. cumstances, EPA might decide it is ap-
(iii) 5 U.S.C. 552a(e)(1) requires each propriate for an individual to have ac-
agency to maintain in its records only cess to all or a portion of his records in
such information about an individual these systems of records.
as is relevant and necessary to accom- (v) 5 U.S.C. 552a(e)(4)(I) requires an
plish a purpose of the agency required agency to publish a FEDERAL REGISTER
193
§ 16.14 40 CFR Ch. I (7–1–00 Edition)
notice concerning the categories of ¶ EPA–2 General Personnel Records—EPA.

sources of records in the system of ¶ EPA–4 OIG Criminal Investigative Index
records. Exemption from this provision and Files—EPA/OIG.
is necessary to protect the confiden- ¶ EPA–5 OIG Personnel Security Files—EPA/
tiality of the sources of information, to OIG.
protect the privacy and physical safety (2) Authority. Under 5 U.S.C.
of confidential sources and witnesses, 552a(k)(5), the head of any agency may
and to avoid the disclosure of inves- by rule exempt any system of records
tigative techniques and procedures. Al-
within the agency from certain provi-
though EPA is claiming exemption
sions of the Privacy Act of 1974, if the
from this requirement, EPA has pub-
lished such a notice in broad generic system of records is investigatory ma-
terms in the belief that this is all sub- terial compiled solely for the purpose
section (e)(4)(I) of the Act requires. of determining suitability, eligibility,
(vi) 5 U.S.C. 552a(f)(1) requires an or qualifications for Federal civilian
agency to promulgate rules which shall employment, Federal contracts, or ac-
establish procedures whereby an indi- cess to classified information, but only
vidual can be notified in response to to the extent that the disclosure of
his request if any system of records such material would reveal the iden-
named by the individual contains a tity of a source who furnished informa-
record pertaining to him. The application to the Government under an ex-
tion of this provision could impede or press promise that the identity of the
compromise an investigation or pros- source would be held in confidence, or,
ecution if the subject of an investiga- prior to September 27, 1975, under an
tion was able to use such rules to learn implied promise that the identity
of the existence of an investigation be- would be held in confidence.
fore it could be completed. In addition, (3) Scope of exemption. (i) The systems
mere notice of the fact of an investiga- of records identified in § 16.14(b)(1) are
tion could inform the subject or others
exempted from the following provisions
that their activities are under or may
of the Privacy Act of 1974, subject to
become the subject of an investigation
the limitations of 5 U.S.C. 552a(k)(5): 5
and could enable the subjects to avoid
detection or apprehension, to influence U.S.C. 552a (c)(3); (d); (e)(1), (4)(H) and
witnesses improperly, to destroy evi- (I); and (f)(2) through (5).
dence, or to fabricate testimony. Since (ii) To the extent that records con-
EPA is claiming that these systems of tained in the systems of records identi-
records are exempt from subsection (d) fied in § 16.14(b)(1) reveal a violation or
of the Act, concerning access to potential violation of law, then an ex-
records, the requirements of sub- emption under 5 U.S.C. 552a(k)(2) is
sections (f)(2) through (5) of the Act, also claimed for these records.
concerning agency rules for obtaining (4) Reasons for exemption. The systems
access to such records, are inapplicable of records identified in § 16.14(b)(1) are
and are exempted to the extent that exempted from the above provisions of
these systems of records are exempted the Privacy Act of 1974 for the fol-
from subsection (d) of the Act. Al- lowing reasons:
though EPA is claiming exemption (i) 5 U.S.C. 552a(c)(3) requires an
from the requirements of subsection agency to make the accounting of each
(f), EPA has promulgated rules which disclosure of records available to the
establish Agency procedures because, individual named in the record at his
under certain circumstances, it might
request. These accountings must state
be appropriate for an individual to
the date, nature, and purpose of each
have access to all or a portion of his
disclosure of a record and the name and
records in these systems of records.
These procedures are described else- address of the recipient. Making such
where in this part. an accounting could cause the identity
(b) Exemption under 5 U.S.C. of a confidential source to be revealed,
552a(k)(5)—(1) Systems of records af- endangering the physical safety of the
fected. confidential source, and could impair
194
the future ability of the EPA to com- published such a notice concerning its
pile investigatory material for the pur- access and contest procedures because,
pose of determining suitability, eligi- under certain circumstances, EPA
bility, or qualifications for Federal ci- might decide it is appropriate for an in-
vilian employment, Federal contracts, dividual to have access to all or a por-
or access to classified information. tion of his records in these systems of
(ii) 5 U.S.C. 552a(d) requires an agen- records.
cy to permit an individual to gain ac- (v) 5 U.S.C. 552a(e)(4)(I) requires an
cess to records pertaining to him, to agency to publish a FEDERAL REGISTER
request amendment to such records, to notice concerning the categories of
request a review of an agency decision sources of records in the system of
not to amend such records, and to con- records. Exemption from this provision
test the information contained in such is necessary to protect the confiden-
records. Granting such access could tiality of the sources of information, to
cause the identity of a confidential protect the privacy and physical safety
source to be revealed, endangering the of confidential sources, and to avoid
physical safety of the confidential the disclosure of investigative tech-
source, and could impair the future niques and procedures. Although EPA
ability of the EPA to compile inves- is claiming exemption from this re-
tigatory material for the purpose of de- quirement, EPA has published such a
termining suitability, eligibility, or notice in broad generic terms in the be-
qualifications for Federal civilian em- lief that this is all subsection (e)(4)(I)
ployment, Federal contracts, or access of the Act requires.
to classified information. (vi) 5 U.S.C. 552a(f)(2) through (5) re-
(iii) 5 U.S.C. 552a(e)(1) requires each quire an agency to promulgate rules
agency to maintain in its records only for obtaining access to records. Since
such information about an individual EPA is claiming that these systems of
as is relevant and necessary to accom- records are exempt from subsection (d)
plish a purpose of the agency required of the Act, concerning access to
by statute or by executive order of the records, the requirements of sub-
President. The application of this pro- sections (f)(2) through (5) of the Act,
vision could impair investigations, be- concerning agency rules for obtaining
cause it is not always possible to de- access to such records, are inapplicable
tect the relevance or necessity of spe- and are exempted to the extent that
cific information in the early stages of this system of records is exempted
an investigation. Relevance and neces- from subsection (d) of the Act. Al-
sity are often questions of judgment though EPA is claiming exemption
and timing, and it is only after the in- from the requirements of subsections
formation is evaluated that the rel- (f)(2) through (5) of the Act, EPA has
evance and necessity of such informa- promulgated rules which establish
tion can be established. Agency procedures because, under cer-
(iv) 5 U.S.C. 552a(e)(4)(H) requires an tain circumstances, it might be appro-
agency to publish a FEDERAL REGISTER priate for an individual to have access
notice concerning its procedures for to all or a portion of his records in this
notifying an individual at his request system of records. These procedures
how he can gain access to any record are described elsewhere in this part.
pertaining to him and how he can con- (c) Exemption under 5 U.S.C.
test its content. Since EPA is claiming 552a(k)(1)—(1) System of records affected.
that these systems of records are ex-
empt from subsections (f)(2) through (5) ¶ EPA–5 OIG Personnel Security Files—EPA/
OIG.
of the Act, concerning agency rules,
and subsection (b) of the Act, con- (2) Authority. Under 5 U.S.C.
cerning access to records, these re- 552a(k)(1), the head of any agency may
quirements are inapplicable and are ex- by rule exempt any system of records
empted to the extent that these sys- within the agency from certain provi-
tems of records are exempted from sub- sions of the Privacy Act of 1974, if the
sections (f)(2) through (5) and (d) of the system of records is subject to the pro-
Act. Although EPA is claiming exemp- visions of 5 U.S.C. 552(b)(1). A system of
tion from these requirements, EPA has records is subject to the provisions of 5
195
§ 16.14 40 CFR Ch. I (7–1–00 Edition)
U.S.C. 552(b)(1) if it contains records plish a purpose of the agency required

that are specifically authorized under by statute or by executive order of the
criteria established by an Executive President. The application of this pro-
order to be kept secret in the interest vision could impair personnel security
of national defense or foreign policy investigations which use properly clas-
and are in fact properly classified pur- sified information, because it is not al-
suant to such Executive order. Execu- ways possible to know the relevance or
tive Order 12356 establishes criteria for necessity of specific information in the
classifying records which are to be early stages of an investigation. Rel-
kept secret in the interest of national evance and necessity are often ques-
defense or foreign policy. tions of judgment and timing, and it is
(3) Scope of exemption. To the extent only after the information is evaluated
that the system of records identified in that the relevance and necessity of
§ 16.14(c)(1) contains records provided such information can be established.
by other Federal agencies that are spe- (iv) 5 U.S.C. 552a(e)(4)(G) and (H) re-
cifically authorized under criteria es- quire an agency to publish a FEDERAL
tablished by Executive Order 12356 to REGISTER notice concerning its proce-
be kept secret in the interest of na- dures for notifying an individual at his
tional defense or foreign policy and are request if the system of records con-
in fact properly classified by other tains a record pertaining to him, how
Federal agencies pursuant to that Ex- he can gain access to such a record,
ecutive order, the system of records is and how he can contest its content.
exempted from the following provisions Since EPA is claiming that this system
of the Privacy Act of 1974: 5 U.S.C. 552a of records is exempt from subsection (f)
(c)(3); (d); (e)(1), (4)(G), (H), and (I); and of the Act, concerning agency rules,
(f). and subsection (d) of the Act, con-
(4) Reasons for exemption. The system cerning access to records, these re-
of records identified in § 16.14(c)(1) is quirements are inapplicable and are ex-
exempted from the above provisions of empted to the extent that this system
the Privacy Act of 1974 for the fol- of records is exempted from sub-
lowing reasons: sections (f) and (d) of the Act. Al-
(i) 5 U.S.C. 552a(c)(3) requires an though EPA is claiming exemption
agency to make the accounting of each from these requirements, EPA has pub-
disclosure of records available to the lished such a notice concerning its no-
individual named in the record at his tification, access, and contest proce-
request. These accountings must state dures because, under certain cir-
the date, nature, and purpose of each cumstances, EPA might decide it is ap-
disclosure of a record and the name and propriate for an individual to have ac-
address of the recipient. Making such cess to all or a portion of his records in
an accounting could result in the re- this system of records.
lease of properly classified informa- (v) 5 U.S.C. 552a(e)(4)(I) requires an
tion, which would compromise the na- agency to publish a FEDERAL REGISTER
tional defense or disrupt foreign policy. notice concerning the categories of
(ii) 5 U.S.C. 552a(d) requires an agen- sources of records in the system of
cy to permit an individual to gain ac- records. Exemption from this provision
cess to records pertaining to him, to is necessary to prevent the release of
request amendment to such records, to properly classified information, which
request a review of an agency decision would compromise the national defense
not to amend such records, and to con- or disrupt foreign policy. Although
test the information contained in such EPA is claiming exemption from this
records. Granting such access could requirement, EPA has published such a
cause the release of properly classified notice in broad generic terms in the be-
information, which would compromise lief that this is all subsection (e)(4)(I)
the national defense or disrupt foreign of the Act requires.
policy. (vi) 5 U.S.C. 552(a)(f)(1) requires an
(iii) 5 U.S.C. 552a(e)(1) requires each agency to promulgate rules which shall
agency to maintain in its records only establish procedures whereby an indi-
such information about an individual vidual can be notified in response to
as is relevant and necessary to accom- his request if any system of records
196
named by the individual contains a PART 17—IMPLEMENTATION OF THE

record pertaining to him. The applica- EQUAL ACCESS TO JUSTICE ACT
tion of this provision could result in IN EPA ADMINISTRATIVE PRO-
the release of properly classified infor- CEEDINGS
mation, which would compromise the
national defense or disrupt foreign pol- Subpart A—General Provisions
icy. Since EPA is claiming that this
system of records is exempt from sub- Sec.
section (d) of the Act, concerning ac- 17.1 Purpose of these rules.
cess to records, the requirements of 17.2 Definitions.
subsections (f)(2) through (5) of the 17.3 Proceedings covered.
Act, concerning agency rules for ob- 17.4 Applicability to EPA proceedings.
17.5 Eligibility of applicants.
taining access to such records, are in-
17.6 Standards for awards.
applicable and are exempted to the ex-
17.7 Allowable fees and other expenses.
tent that this system of records is ex- 17.8 Delegation of authority.
empted from subsection (d) of the Act.
Although EPA is claiming exemption Subpart B—Information Required From
from the requirements of subsection (f) Applicants
of the Act, EPA has promulgated rules
which establish Agency procedures be- 17.11 Contents of application.
17.12 Net worth exhibit.
cause, under certain circumstances, it
17.13 Documentation of fees and expenses.
might be appropriate for an individual
17.14 Time for submission of application.
to have access to all or a portion of his
records in this system of records. These Subpart C—Procedures for Considering
procedures are described elsewhere in Applications
this part.
(d) Exempt records provided by another 17.21 Filing and service of documents.
17.22 Answer to application.
agency. Individuals may not have ac-
17.23 Comments by other parties.
cess to records maintained by the EPA
17.24 Settlement.
if such records were provided by an- 17.25 Extensions of time and further pro-
other agency which has determined by ceedings.
regulation that such records are sub- 17.26 Decision on application.
ject to general exemption under 5 17.27 Agency review.
U.S.C. 552a(j) or specific exemption 17.28 Judicial review.
under 5 U.S.C. 552a(k). If an individual 17.29 Payment of award.
requests access to such exempt records, AUTHORITY: Section 504, Title 5 U.S.C., as
EPA will consult with the source agen- amended by sec. 203(a)(1), Equal Access to
cy. Justice Act (Title 2 of Pub. L. 96–481, 94 Stat.
(e) Exempt records included in a non- 2323).
exempt system of records. All records ob- SOURCE: 48 FR 39936, Sept. 2, 1983, unless
tained from a system of records which otherwise noted.
has been determined by regulation to
be subject to specific exemption under Subpart A—General Provisions
5 U.S.C. 552a(k) retain their exempt
status even if such records are also in- § 17.1 Purpose of these rules.
cluded in a system of records for which These rules are adopted by EPA pur-
a specific exemption has not been suant to section 504 of title 5 U.S.C., as
claimed. added by section 203(a)(1) of the Equal
[51 FR 24147, July 2, 1986, as amended at 59 Access to Justice Act, Public Law No.
FR 17485, Apr. 13, 1994] 96–481. Under the Act, an eligible party
may receive an award for attorney’s
197
§ 17.2 40 CFR Ch. I (7–1–00 Edition)
fees and other expenses when it pre- 16(a) of the Toxic Substances Control
vails over EPA in an adversary adju- Act (15 U.S.C. 2615(a));
dication before EPA unless EPA’s posi- (4) A hearing to consider ordering a
tion as a party to the proceeding was manufacturer of hazardous chemical
substantially justified or special cir- substances or mixtures to take actions
cumstances make an award unjust. The under section 6(b) of the Toxic Sub-
purpose of these rules is to establish stances Control Act (15 U.S.C. 2605(b)),
procedures for the submission and con- to decrease the unreasonable risk posed
sideration of applications for awards by a chemical substance or mixture;
against EPA when the underlying deci- (5) A hearing to consider the assess-
sion is not reviewed by a court. ment of any civil penalty under section
14(a) of the Federal Insecticide, Fun-
§ 17.2 Definitions. gicide, and Rodenticide Act as amend-
As used in this part: ed (7 U.S.C. 1361);
(a) The Act means section 504 of title (6) A hearing to consider suspension
5 U.S.C., as amended by section of a registrant for failure to take ap-
203(a)(1) of the Equal Access to Justice propriate steps in the development of
Act, Public Law No. 96–481. registration data under section
(b) Administrator means the Adminis- 3(c)(2)(B) of the Federal Insecticide,
trator of the Environmental Protection Fungicide and Rodenticide Act as
Agency. amended (7 U.S.C. 136a);
(c) Adversary adjudication means an (7) A hearing to consider the suspen-
adjudication required by statute to be sion or cancellation of a registration
held pursuant to 5 U.S.C. 554 in which under section 6 of the Federal Insecti-
the position of the United States is cide, Fungicide, and Rodenticide Act as
represented by counsel or otherwise, amended (7 U.S.C. 136d);
but excludes an adjudication for the (8) A hearing to consider the assess-
purpose of granting or renewing a li- ment of any civil penalty or the rev-
cense. ocation or suspension of any permit
(d) EPA means the Environmental under section 105(a) or 105(f) of the Ma-
Protection Agency, an Agency of the rine Protection, Research, and Sanc-
United States. tuaries Act as amended (33 U.S.C.
(e) Presiding officer means the official, 1415(a), 33 U.S.C. 1415(f));
without regard to whether he is des- (9) A hearing to consider the issuance
ignated as an administrative law judge of a compliance order or the assess-
or a hearing officer or examiner, who ment of any civil penalty conducted
presides at the adversary adjudication. under section 3008 of the Resource Con-
(f) Proceeding means an adversary ad- servation and Recovery Act as amend-
judication as defined in § 17.2(b). ed (42 U.S.C. 6928);
(10) A hearing to consider the
§ 17.3 Proceedings covered. issuance of a compliance order under
(a) These rules apply to adversary ad- section 11(d) of the Noise Control Act
judications required by statute to be as amended (42 U.S.C. 4910(d)).
conducted by EPA under 5 U.S.C. 554. (b) If a proceeding includes both mat-
To the extent that they are adversary ters covered by the Act and matters
adjudications, the proceedings con- specifically excluded from coverage,
ducted by EPA to which these rules any award made will include only fees
apply include: and expenses related to covered issues.
(1) A hearing to consider the assess-
ment of a noncompliance penalty under § 17.4 Applicability to EPA pro-
section 120 of the Clean Air Act as ceedings.
amended (42 U.S.C. 7420); The Act applies to an adversary adju-
(2) A hearing to consider the termi- dication pending before EPA at any
nation of an individual National Pollu- time between October 1, 1981 and Sep-
tion Discharge Elimination System tember 30, 1984. This includes pro-
permit under section 402 of the Clean ceedings begun before October 1, 1981 if
Water Act as amended (33 U.S.C. 1342); final EPA action has not been taken
(3) A hearing to consider the assess- before that date, and proceedings pend-
ment of any civil penalty under section ing on September 30, 1984.
198
§ 17.5 Eligibility of applicants. trustees, or other persons exercising

(a) To be eligible for an award of at- similar functions, shall be considered
torney’s fees and other expenses under an affiliate of that business for pur-
the Act, the applicant must be a pre- poses of this part. In addition, the Pre-
vailing party in the adversary adju- siding Officer may determine that fi-
dication for which it seeks an award. nancial relationships of the applicant
The term party is defined in 5 U.S.C. other than those described in this para-
551(3). The applicant must show that it graph constitute special circumstances
meets all conditions of eligibility set that would make an award unjust.
out in this subpart and in subpart B. (g) An applicant is not eligible if it
(b) The types of eligible applicants has participated in the proceeding on
are as follows: behalf of other persons or entities that
(1) An individual with a net worth of are ineligible.
not more than $1 million;
§ 17.6 Standards for awards.
(2) The sole owner of an unincor-
porated business which has a net worth (a) A prevailing applicant may re-
of not more than $5 million and not ceive an award for fees and expenses in-
more than 500 employees; curred in connection with a proceeding
(3) A charitable or other tax-exempt unless the position of the EPA as a
organization described in section party to the proceeding was substan-
501(c)(3) of the Internal Revenue Code tially justified or unless special cir-
(26 U.S.C. 501(c)(3)) with not more than cumstances make the award sought un-
500 employees; just. No presumption arises that the
(4) A cooperative association as de- agency’s position was not substantially
fined in section 15(a) of the Agricul- justified simply because the agency did
tural Marketing Act (12 U.S.C. 114j(a)) not prevail.
with not more than 500 employees; and (b) An award shall be reduced or de-
(5) Any other partnership, corpora- nied if the applicant has unduly or un-
tion, association, or public or private reasonably protracted the proceeding.
organization with a net worth of not
more than $5 million and not more § 17.7 Allowable fees and other ex-
than 500 employees. penses.
(c) For the purpose of eligibility, the (a) The following fees and other ex-
net worth and number of employees of penses are allowable under the Act:
an applicant shall be determined as of (1) Reasonable expenses of expert wit-
the date of adversary adjudication was nesses;
initiated. (2) The reasonable cost of any study,
(d) An applicant who owns an unin- analysis, engineering report, test, or
corporated business will be considered project which EPA finds necessary for
as an individual rather than a sole the preparation of the party’s case;
owner of an unincorporated business if (3) Reasonable attorney or agent fees;
the issues on which the applicant pre- (b) The amount of fees awarded will
vails are related primarily to personal be based upon the prevailing market
interests rather than to business inter- rates for the kind and quality of serv-
est. ices furnished, except that:
(e) The employees of an applicant in- (1) Compensation for an expert wit-
clude all persons who regularly per- ness will not exceed $24.09 per hour;
form services for remuneration for the and
applicant under the applicant’s direc- (2) Attorney or agent fees will not be
tion and control. Part-time employees in excess of $75 per hour.
shall be included. (c) In determining the reasonableness
(f) The net worth and number of em- of the fee sought, the Presiding Officer
ployees of the applicant and all of its shall consider the following:
affiliates shall be aggregated to deter- (1) The prevailing rate for similar
mine eligibility. An individual or group services in the community in which the
of individuals, corporation, or other en- attorney, agent, or witness ordinarily
tity that directly or indirectly controls performs services;
or owns a majority of the voting shares (2) The time actually spent in the
of another business’ board of directors, representation of the applicant;
199
§ 17.8 40 CFR Ch. I (7–1–00 Edition)
(3) The difficulty or complexity of tion 501(a) of the Code or, in the case of
the issues raised by the application; such an organization not required to
(4) Any necessary and reasonable ex- obtain a ruling from the Internal Rev-
penses incurred; enue Service on its exempt status, a
(5) Such other factors as may bear on statement that describes the basis for
the value of the services performed. the applicant’s belief that it qualifies
under section 501(c)(3) of the Code; or
§ 17.8 Delegation of authority.
(2) It states that it is a cooperative
The Administrator delegates to the association as defined in section 15(a)
Environmental Appeals Board author- of the Agricultural Marketing Act (12
ity to take final action relating to the U.S.C. 114j(a)).
Equal Access to Justice Act. The Envi-
(c) If the applicant is a partnership,
ronmental Appeals Board is described
corporation, association, or organiza-
at 40 CFR 1.25(e). This delegation does
tion, or a sole owner of an unincor-
not preclude the Environmental Ap-
peals Board from referring any matter porated business, the application shall
related to the Equal Access to Justice state that the applicant did not have
Act to the Administrator when the En- more than 500 employees at the time
vironmental Appeals Board deems it the proceeding was initiated, giving
appropriate to do so. When an appeal or the number of its employees and de-
motion is referred to the Adminis- scribing briefly the type and purpose of
trator by the Environmental Appeals its organization or business.
Board, all parties shall be so notified (d) The application shall itemize the
and the rules in this part referring to amount of fees and expenses sought.
the Environmental Appeals Board shall (e) The application may include any
be interpreted as referring to the Ad- other matters that the applicant be-
ministrator. lieves should be considered in deter-
[57 FR 5323, Feb 13, 1992] mining whether and in what amount an
award should be made.
Subpart B—Information Required (f) The application shall be signed by
From Applicants the applicant with respect to the eligi-
bility of the applicant and by the at-
§ 17.11 Contents of application. torney of the applicant with respect to
(a) An application for award of fees fees and expenses sought. The applica-
and expenses under the Act shall iden- tion shall contain or be accompanied
tify the applicant and the proceeding by a written verification under oath or
for which an award is sought. The ap- affirmation or under penalty of perjury
plication shall show that the applicant that the information provided in the
has prevailed and identify the position application and all accompanying ma-
of EPA in the proceeding that the ap- terial is true and complete to the best
plicant alleges was not substantially of the signer’s information and belief.
justified. (Approved by the Office of Management and
(b) The application shall include a Budget under control number 2000–0403)
statement that the applicant’s net
worth as of the time the proceeding § 17.12 Net worth exhibit.
was initiated did not exceed $1 million
if the applicant is an individual (other (a) Each applicant except a qualified
than a sole owner of an unincorporated tax exempt organization or a qualified
business seeking an award in that ca- cooperative must submit with its appli-
pacity) or $5 million in the case of all cation a detailed exhibit showing its
other applicants. An applicant may net worth at the time the proceeding
omit this statement if: was initiated. If any individual, cor-
(1) It attaches a copy of a ruling by poration, or other entity directly or in-
the Internal Revenue Service that it directly controls or owns a majority of
qualifies as an organization described the voting shares or other interest of
in section 501(c)(3) of the Internal Rev- the applicant, or if the applicant di-
enue Code of 1954 (26 U.S.C. 501(c)(3)) rectly or indirectly owns or controls a
and is exempt from taxation under sec- majority of the voting shares or other
200
interest of any corporation or other en- basis, the attorney or agent shall pro-
tity, the exhibit must include a show- vide affidavits from two attorneys or
ing of the net worth of all such affili- agents with similar experience, who
ates or of the applicant including the perform similar work, stating the
affiliates. The exhibit may be in any hourly rate which they bill and are
form that provides full disclosure of as- paid by the majority of their clients
sets and liabilities of the applicant and during a comparable time period.
any affiliates and is sufficient to deter- (c) The documentation shall also in-
mine whether the applicant qualifies clude a description of any expenses for
under the standards of 5 U.S.C.
which reimbursement is sought and a
504(b)(1)(B)(i). The Presiding Officer
statement of the amounts paid and
may require an applicant to file addi-
tional information to determine the payable by the applicant or by any
applicant’s eligibility for an award. other person or entity for the services
(b) The net worth exhibit shall de- provided.
scribe any transfers of assets from, or (d) The Presiding Officer may require
obligations incurred by, the applicant the applicant to provide vouchers, re-
or any affiliate occurring in the one- ceipts, or other substantiation for any
year period prior to the date on which expenses claimed.
the proceeding was initiated that re- (Approved by the Office of Management and
duced the net worth of the applicant Budget under control number 2000–0430)
and its affiliates below the applicable
net worth ceiling. If there were no such § 17.14 Time for submission of applica-
transactions, the applicant shall so tion.
state.
(a) An application must be filed no
(c) The net worth exhibit shall be in-
cluded in the public record of the pro- later than 30 days after final disposi-
ceeding. tion of the proceeding. If agency review
or reconsideration is sought or taken
(Approved by the Office of Management and of a decision in which an applicant be-
Budget under control number 2000–0430)
lieves it has prevailed, action on the
§ 17.13 Documentation of fees and ex- award of fees shall be stayed pending
penses. final agency disposition of the under-
lying controversy.
(a) The application shall be accom-
panied by full documentation of fees (b) Final disposition means the later
and expenses, including the cost of any of:
study, engineering report, test, or (1) The date on which the Agency de-
project, for which an award is sought. cision becomes final, either through
(b) The documentation shall include disposition by the Environmental Ap-
an affidavit from any attorney, agent, peals Board of a pending appeal or
or expert witness representing or ap- through an initial decision becoming
pearing in behalf of the party stating final due to lack of an appeal or
the actual time expended and the rate (2) The date of final resolution of the
at which fees and other expenses were proceeding, such as settlement or vol-
computed and describing the specific untary dismissal, which is not subject
services performed. to a petition for rehearing or reconsid-
(1) The affidavit shall itemize in de- eration.
tail the services performed by the date, (c) If judicial review is sought or
number of hours per date, and the serv- taken of the final agency disposition of
ices performed during those hours. In the underlying controversy, then agen-
order to establish the hourly rate, the cy proceedings for the award of fees
affidavit shall state the hourly rate will be stayed pending completion of
which is billed and paid by the major-
judicial review. If, upon completion of
ity of clients during the relevant time
review, the court decides what fees to
periods.
award, if any, then EPA shall have no
(2) If no hourly rate is paid by the
majority of clients because, for in- authority to award fees.
stance, the attorney or agent rep- [48 FR 39936, Sept. 2, 1983, as amended at 57
resents most clients on a contingency FR 5323, Feb. 13, 1992]
201
§ 17.21 40 CFR Ch. I (7–1–00 Edition)
Subpart C—Procedures for § 17.25 Extensions of time and further

Considering Applications proceedings.
(a) The Presiding Officer may, on mo-
§ 17.21 Filing and service of docu- tion and for good cause shown, grant
ments. extensions of time, other than for fil-
An application for an award and any ing an application for fees and ex-
other pleading or document related to penses, after final disposition in the ad-
versary adjudication.
the application shall be filed and
(b) Ordinarily, the determination of
served on all parties to the proceeding
an award will be made on the basis of
in the same manner as other pleadings the written record of the underlying
in the proceeding. proceeding and the filings required or
permitted by the foregoing sections of
§ 17.22 Answer to application.
these rules. However, the adjudicative
(a) Within 30 calendar days after officer may sua sponte or on motion of
service of the application, EPA counsel any party to the proceedings require or
shall file an answer. permit further filings or other action,
(b) If EPA counsel and the applicant such as an informal conference, oral ar-
believe that they can reach a settle- gument, additional written submis-
ment concerning the award, EPA coun- sions, or an evidentiary hearing. Such
sel may file a statement of intent to further action shall be allowed only
negotiate. The filing of such a state- when necessary for full and fair resolu-
tion of the issues arising from the ap-
ment shall extend the time for filing an
plication and shall take place as
answer an additional 30 days.
promptly as possible. A motion for fur-
(c) The answer shall explain in detail ther filings or other action shall spe-
any objections to the award requested cifically identify the information
and identify the facts relied on to sup- sought on the disputed issues and shall
port the objection. If the answer is explain why the further filings or other
based on any alleged facts not already action is necessary to resolve the
reflected in the record of the pro- issues.
ceeding, EPA counsel shall include (c) In the event that an evidentiary
with the answer either a supporting af- hearing is required or permitted by the
fidavit or affidavits or request for fur- adjudicative officer, such hearing and
ther proceedings under § 17.25. any related filings or other action re-
quired or permitted shall be conducted
§ 17.23 Comments by other parties. pursuant to the procedural rules gov-
Any party to a proceeding other than erning the underlying adversary adju-
the applicant and EPA counsel may file dication.
comments on an application within 30 § 17.26 Decision on application.
calendar days after it is served or on an
answer within 15 calendar days after it The Presiding Officer shall issue a
recommended decision on the applica-
is served.
tion which shall include proposed writ-
§ 17.24 Settlement. ten findings and conclusions on such of
the following as are relevant to the de-
A prevailing party and EPA counsel cision:
may agree on a proposed settlement of (a) The applicant’s status as a pre-
an award before final action on the ap- vailing party;
plication, either in connection with a (b) The applicant’s qualification as a
settlement of the underlying pro- ‘‘party’’ under 5 U.S.C. 504(b)(1)(B);
ceeding or after the underlying pro- (c) Whether EPA’s position as a party
ceeding has been concluded. If the to the proceeding was substantially
party and EPA counsel agree on a pro- justified;
posed settlement of an award before an (d) Whether the special cirumstances
application has been filed, the applica- make an award unjust;
tion shall be filed with the proposed (e) Whether the applicant during the
settlement. course of the proceedings engaged in
conduct that unduly and unreasonably
202
protracted the final resolution of the 19.3 [Reserved]

matter in controversy; and 19.4 Penalty Adjustment and Table.
(f) The amounts, if any, awarded for AUTHORITY: Pub. L. 101–410, 104 Stat. 890, 28
fees and other expenses, explaining any U.S.C. 2461 note; Pub. L. 104–134, 110 Stat.
difference between the amount re- 1321, 31 U.S.C. 3701 note.
quested and the amount awarded. SOURCE: 61 FR 69364, Dec. 31, 1996, unless
otherwise noted.
§ 17.27 Agency review.
The recommended decision of the § 19.1 Applicability.
Presiding Officer will be reviewed by This part applies to each statutory
EPA in accordance with EPA’s proce- provision under the laws administered
dures for the type of substantive pro- by the Environmental Protection
ceeding involved. Agency concerning the maximum civil
monetary penalty which may be as-
§ 17.28 Judicial review. sessed in either civil judicial or admin-
Judicial review of final EPA deci- istrative proceedings.
sions on awards may be sought as pro-
vided in 5 U.S.C. 504(c)(2). § 19.2 Effective date.
The increased penalty amounts set
§ 17.29 Payment of award. forth in this part apply to all viola-
An applicant seeking payment of an tions under the applicable statutes and
award shall submit a copy of the final regulations which occur after January
decision granting the award to the Of- 30, 1997; except for violations subject to
fice of Financial Management for Proc- penalty under 42 U.S.C. 4852d(b)(5) and
essing. A statement that review of the 42 U.S.C. 4910(a)(2), which are subject
underlying decision is not being sought to the new penalty amounts for any
in the United States courts or that the violations after July 28, 1997.
process for seeking review of the award [62 FR 35039, June 27, 1997]
has been completed must also be in-
cluded. § 19.3 [Reserved]
PART 19—ADJUSTMENT OF CIVIL § 19.4 Penalty Adjustment and Table.

MONETARY PENALTIES FOR IN- The adjusted statutory penalty pro-
FLATION visions and their maximum applicable
amounts are set out in Table 1. The
Sec. last column in the table provides the
19.1 Applicability. newly effective maximum penalty
19.2 Effective date. amounts.
TABLE 1 OF SECTION 19.4—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS
New maximum pen-
U.S. Code citation Civil monetary penalty description alty amount
7 U.S.C. 1361.(a)(1) ............. FEDERAL INSECTICIDE, FUNGICIDE, & RODENTICIDE ACT CIVIL $5,500
PENALTY—GENERAL—COMMERCIAL APPLICATORS, ETC.
7 U.S.C. 1361.(a)(2) ............. FEDERAL INSECTICIDE, FUNGICIDE, & RODENTICIDE ACT CIVIL $550/$1,000
PENALTY—PRIVATE APPLICATORS—FIRST AND SUBSEQUENT
OFFENSES OR VIOLATIONS.
15 U.S.C. 2615(a) ................ TOXIC SUBSTANCES CONTROL ACT CIVIL PENALTY ......................... $27,500
15 U.S.C. 2647(a) ................ ASBESTOS HAZARD EMERGENCY RESPONSE ACT CIVIL PENALTY $5,500
31 U.S.C. 3802(a)(1) ............ PROGRAM FRAUD CIVIL REMEDIES ACT/VIOLATION INVOLVING $5,500
FALSE CLAIM.
31 U.S.C. 3802(a)(2) ............ PROGRAM FRAUD CIVIL REMEDIES ACT/VIOLATION INVOLVING $5,500
FALSE STATEMENT.
33 U.S.C. 1319(d) ................ CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL PENALTY ................ $27,500
33 U.S.C. 1319(g)(2)(A) ....... CLEAN WATER ACT VIOLATION/ADMINISTRATIVE PENALTY PER $11,000/$27,500
VIOLATION AND MAXIMUM.
33 U.S.C. 1319(g)(2)(B) ....... CLEAN WATER ACT VIOLATION/ADMINISTRATIVE PENALTY PER $11,000/$137,500
33 U.S.C. 1321(b)(6)(B)(I) .... CLEAN WATER ACT VIOLATION/ADMIN PENALTY OF SEC $11,000/$27,500
311(b)(3)&(j) PER VIOLATION AND MAXIMUM.
33 U.S.C. 1321(b)(6)(B)(ii) ... CLEAN WATER ACT VIOLATION/ADMIN PENALTY OF SEC $11,000/$137,500
311(b)(3)&(j) PER VIOLATION AND MAXIMUM.
203
§ 19.4 40 CFR Ch. I (7–1–00 Edition)
TABLE 1 OF SECTION 19.4—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS—Continued

New maximum pen-
33 U.S.C. 1321(b)(7)(A) ....... CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL PENALTY OF SEC $27,500 or $1,100
311(b)(3)—PER VIOLATION PER DAY OR PER BARREL OR UNIT. per barrel or unit
33 U.S.C. 1321(b)(7)(B) ....... CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL PENALTY OF SEC $27,500
311(c)&(e)(1)(B).
33 U.S.C. 1321(b)(7)(C) ....... CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL PENALTY OF SEC $27,500
311(j).
33 U.S.C. 1321(b)(7)(D) ....... CLEAN WATER ACT VIOLATION/MINIMUM CIVIL JUDICIAL PENALTY $110,000 or $3,300
OF SEC 311(b)(3)—PER VIOLATION OR PER BARREL/UNIT. per barrel or unit
33 U.S.C. 1414b(d) .............. MARINE PROTECTION, RESEARCH & SANCTUARIES ACT VIOL SEC $660
104b(d).
33 U.S.C. 1415(a) ................ MARINE PROTECTION RESEARCH AND SANCTUARIES ACT VIOLA- $55,000/$137,500
TIONS—FIRST & SUBSEQUENT VIOLATIONS.
42 U.S.C. 300g–3(b) ............ SAFE DRINKING WATER ACT/CIVIL JUDICIAL PENALTY OF SEC $27,500
1414(b).
42 U.S.C. 300g–3(c) ............. SAFE DRINKING WATER ACT/CIVIL JUDICIAL PENALTY OF SEC $27,500
1414(c).
42 U.S.C. 300g–3(g)(3)(A) ... SAFE DRINKING WATER ACT/CIVIL JUDICIAL PENALTY OF SEC $27,500
1414(g)(3)(a).
42 U.S.C. 300g–3(g)(3)(B) ... SAFE DRINKING WATER ACT/MAXIMUM ADMINISTRATIVE PEN- $5,000/$25,000
ALTIES PER SEC 1414(g)(3)(B).
42 U.S.C. 300g–3(g)(3)(C) ... SAFE DRINKING WATER ACT/THRESHOLD REQUIRING CIVIL JUDI- $25,000
CIAL ACTION PER SEC 1414(g)(3)(C).
42 U.S.C. 300h–2(b)(1) ........ SDWA/CIVIL JUDICIAL PENALTY/VIOLATIONS OF REQS—UNDER- $27,500
GROUND INJECTION CONTROL (UIC).
42 U.S.C. 300h–2(c)(1) ........ SDWA/CIVIL ADMIN PENALTY/VIOLATIONS OF UIC REQS—PER $11,000/$137,500.
42 U.S.C. 300h–2(c)(2) ........ SDWA/CIVIL ADMIN PENALTY/VIOLATIONS OF UIC REQS—PER $5,500/$137,500
42 U.S.C. 300h–3(c)(1) ........ SDWA/VIOLATION/OPERATION OF NEW UNDERGROUND INJEC- $5,500
TION WELL.
42 U.S.C. 300h–3(c)(2) ........ SDWA/WILLFUL VIOLATION/OPERATION OF NEW UNDERGROUND $11,000
INJECTION WELL.
42 U.S.C. 300i(b) .................. SDWA/FAILURE TO COMPLY WITH IMMINENT AND SUBSTANTIAL $15,000.
ENDANGERMENT ORDER.
42 U.S.C. 300i–1(c) .............. SDWA/ATTEMPTING TO OR TAMPERING WITH PUBLIC WATER $22,000/$55,000
SYSTEM/CIVIL JUDICIAL PENALTY.
42 U.S.C. 300j(e)(2) ............. SDWA/FAILURE TO COMPLY W/ORDER ISSUED UNDER SEC. $2,750
1441(c)(1).
42 U.S.C. 300j–4(c) .............. SDWA/REFUSAL TO COMPLY WITH REQS. OF SEC. 1445(a) OR (b) $27,500
42 U.S.C. 300j–6(b)(2) ......... SDWA/FAILURE TO COMPLY WITH ADMIN. ORDER ISSUED TO $25,000
FEDERAL FACILITY.
42 U.S.C. 300j–23(d) ............ SDWA/VIOLATIONS/SECTION 1463(b)—FIRST OFFENSE/REPEAT $5,500/$55,000
OFFENSE.
42 U.S.C. 4852d(b)(5) .......... RESIDENTIAL LEAD-BASED PAINT HAZARD REDUCTION ACT OF $11,000
1992, SEC 1018—CIVIL PENALTY.
42 U.S.C. 4910(a)(2) ............ NOISE CONTROL ACT OF 1972—CIVIL PENALTY ................................ $11,000
42 U.S.C. 6928(a)(3) ............ RESOURCE CONSERVATION & RECOVERY ACT/VIOLATION SUB- $27,500
TITLE C ASSESSED PER ORDER.
42 U.S.C. 6928(c) ................. RES. CONS. & REC. ACT/CONTINUED NONCOMPLIANCE OF COM- $27,500
PLIANCE ORDER.
42 U.S.C. 6928(g) ................ RESOURCE CONSERVATION & RECOVERY ACT/VIOLATION SUB- $27,500
TITLE C.
42 U.S.C. 6928(h)(2) ............ RES. CONS. & REC. ACT/NONCOMPLIANCE OF CORRECTIVE AC- $27,500
TION ORDER.
42 U.S.C. 6934(e) ................ RES. CONS. & REC. ACT/NONCOMPLIANCE WITH SECTION 3013 $5,500
ORDER.
42 U.S.C. 6973(b) ................ RES. CONS. & REC. ACT/VIOLATIONS OF ADMINISTRATIVE ORDER $5,500
42 U.S.C. 6991e(a)(3) .......... RES. CONS. & REC. ACT/NONCOMPLIANCE WITH UST ADMINIS- $27,500
TRATIVE ORDER.
42 U.S.C. 6991e(d)(1) .......... RES. CONS. & REC. ACT/FAILURE TO NOTIFY OR FOR SUBMIT- $11,000
TING FALSE INFORMATION.
42 U.S.C. 6991e(d)(2) .......... RCRA/VIOLATIONS OF SPECIFIED UST REGULATORY REQUIRE- $11,000
MENTS.
42 U.S.C. 6992d(a)(2) .......... RCRA/NONCOMPLIANCE W/MEDICAL WASTE TRACKING ACT AS- $27,500
SESSED THRU ADMIN ORDER.
42 U.S.C. 6992d(a)(4) .......... RCRA/NONCOMPLIANCE W/MEDICAL WASTE TRACKING ACT AD- $27,500
MINISTRATIVE ORDER.
42 U.S.C. 6992d(d) .............. RCRA/VIOLATIONS OF MEDICAL WASTE TRACKING ACT—JUDI- $27,500
CIAL PENALTIES.
42 U.S.C. 7413(b) ................ CLEAN AIR ACT/VIOLATION/OWNERS & OPERATORS OF STA- $27,500
TIONARY AIR POLLUTION SOURCES—JUDICIAL PENALTIES.
204
TABLE 1 OF SECTION 19.4—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS—Continued

New maximum pen-
42 U.S.C. 7413(d)(1) ............ CLEAN AIR ACT/VIOLATION/OWNERS & OPERATORS OF STA- $27,500/$220,000
TIONARY AIR POLLUTION SOURCES-ADMINISTRATIVE PEN-
ALTIES PER VIOLATION & MAX.
42 U.S.C. 7413(d)(3) ............ CLEAN AIR ACT/MINOR VIOLATIONS/STATIONARY AIR POLLUTION $5,500.
SOURCES—FIELD CITATIONS.
42 U.S.C. 7524(a) ................ TAMPERING OR MANUFACTURE/SALE OF DEFEAT DEVICES IN $2,750
VIOLATION OF 7522(a)(3)(A) OR (a)(3)(B)—BY PERSONS.
42 U.S.C. 7524(a) ................ VIOLATION OF 7522(a)(3)(A) OR (a)(3)(B)—BY MANUFACTURERS $27,500
OR DEALERS; ALL VIOLATIONS OF 7522(a)(1),(2), (4),&(5) BY
ANYONE.
42 U.S.C. 7524(c) ................. ADMINISTRATIVE PENALTIES AS SET IN 7524(a) & 7545(d) WITH A $220,000
MAXIMUM ADMINISTRATIVE PENALTY.
42 U.S.C. 7545(d) ................ VIOLATIONS OF FUELS REGULATIONS ................................................. $27,500
42 U.S.C. 9604(e)(5)(B) ....... SUPERFUND AMEND. & REAUTHORIZATION ACT/NONCOMPLI- $27,500
ANCE W/REQUEST FOR INFO OR ACCESS.
42 U.S.C. 9606(b)(1) ............ SUPERFUND/WORK NOT PERFORMED W/IMMINENT, SUBSTANTIAL $27,500
ENDANGERMENT.
42 U.S.C. 9609 (a) & (b) ...... SUPERFUND/ADMIN. PENALTY VIOLATIONS UNDER 42 U.S.C. $27,500.
SECT. 9603, 9608, OR 9622.
42 U.S.C. 9609(b) ................ SUPERFUND/ADMIN. PENALTY VIOLATIONS—SUBSEQUENT ........... $82,500
42 U.S.C. 9609(c) ................. SUPERFUND/CIVIL JUDICIAL PENALTY/VIOLATIONS OF SECT. $27,500
9603, 9608, 9622.
42 U.S.C. 9609(c) ................. SUPERFUND/CIVIL JUDICIAL PENALTY/SUBSEQUENT VIOLATIONS $82,500
OF SECT. 9603, 9608, 9622.
42 U.S.C. 11045 (a) & (b) EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT $27,500
(1), (2) & (3). CLASS I & II ADMINISTRATIVE AND CIVIL PENALTIES.
42 U.S.C. 11045(b) (2) & (3) EPCRA CLASS I & II ADMINISTRATIVE AND CIVIL PENALTIES— $82,500
SUBSEQUENT VIOLATIONS.
42 U.S.C. 11045(c)(1) .......... EPCRA CIVIL AND ADMINISTRATIVE REPORTING PENALTIES FOR $27,500
VIOLATIONS OF SECTIONS 11022 OR 11023.
42 U.S.C. 11045(c)(2) .......... EPCRA CIVIL AND ADMINISTRATIVE REPORTING PENALTIES FOR $11,000
VIOLATIONS OF SECTIONS 11021 OR 11043(b).
42 U.S.C. 11045(d)(1) .......... EPCRA—FRIVOLOUS TRADE SECRET CLAIMS—CIVIL AND ADMIN- $27,500
ISTRATIVE PENALTIES.
[61 FR 69364, Dec. 31, 1996; 62 FR 13515, Mar. 20, 1997; 62 FR 35039, June 27, 1997]
PART 20—CERTIFICATION OF for purposes of section 169 of the Inter-

FACILITIES nal Revenue Code of 1954, as amended,
26 U.S.C. 169, as to which the amortiza-
Sec. tion period began after December 31,
20.1 Applicability. 1975. Certification of air or water pollu-
20.2 Definitions. tion control facilities as to which the
20.3 General provisions. amortization period began before Janu-
20.4 Notice of intent to certify. ary 1, 1976, will continue to be governed
20.5 Applications. by Environmental Protection Agency
20.6 State certification. regulations published November 25,
20.7 General policies. 1971, at 36 FR 22382. Applicable regula-
20.8 Requirements for certification.
20.9 Cost recovery.
tions of the Department of Treasury
20.10 Revocation. are at 26 CFR 1.169 et seq.
APPENDIX A TO PART 20—GUIDELINES FOR [43 FR 1340, Jan. 9, 1978]
CERTIFICATION
AUTHORITY: Secs. 301, 704, 80 Stat. 379, 83 § 20.2 Definitions.
Stat. 667; 5 U.S.C. 301, 26 U.S.C. 169. As used in this part, the following
SOURCE: 36 FR 22382, Nov. 25, 1971, unless terms shall have the meaning indicated
otherwise noted. below:
(a) Act means, when used in connec-
§ 20.1 Applicability. tion with water pollution control fa-
The regulations of this part apply to cilities, the Federal Water Pollution
certifications by the Administrator of Control Act, as amended (33 U.S.C. 1251
water or air pollution control facilities et seq.) or, when used in connection
205
§ 20.3 40 CFR Ch. I (7–1–00 Edition)
with air pollution control facilities, in an application previously submitted

the Clean Air Act, as amended (42 by the applicant under this part and
U.S.C. 1857 et seq.). pertaining to substantially identical
(b) State certifying authority means: facilities.
(1) For water pollution control facili- (b) The applicant shall, at the time of
ties, the State pollution control agency application to the State certifying au-
as defined in section 502 of the Act. thority, submit an application in the
(2) For air pollution control facili-
form prescribed by the Administrator
ties, the air pollution control agency
to the Regional Administrator for the
designated pursuant to section 302(b)(1)
of the Act; or region in which the facility is located.
(3) For both air and water pollution (c) Applications will be considered
control facilities, any interstate agen- complete and will be processed when
cy authorized to act in place of the cer- the Regional Administrator receives
tifying agency of a State. the completed State certification.
(c) Applicant means any person who (d) Applications may be filed prior or
files an application with the Adminis- subsequent to the commencement of
trator for certification that a facility construction, acquisition, installation,
is in compliance with the applicable or operation of the facility.
regulations of Federal agencies and in (e) An amendment to an application
furtherance of the general policies of shall be submitted in the same manner
the United States for cooperation with as the original application and shall be
the States in the prevention and abate- considered a part of the original appli-
ment of water or air pollution under cation.
the Act.
(f) If the facility is certified by the
(d) Administrator means the Adminis-
trator, Environmental Protection Regional Administrator, notice of cer-
Agency. tification will be issued to the Sec-
(e) Regional Administrator means the retary of the Treasury or his delegate,
Regional designee appointed by the Ad- and a copy of the notice shall be for-
ministrator to certify facilities under warded to the applicant and to the
this part. State certifying authority. If the facil-
(f) Facility means property com- ity is denied certification, the Regional
prising any new identifiable treatment Administrator will advise the applicant
facility which removes, alters, disposes and State certifying authority in writ-
of, stores, or prevents the creation of ing of the reasons therefor.
pollutants, contaminants, wastes, or (g) No certification will be made by
heat. the Regional Administrator for any fa-
(g) State means the States, the Dis- cility prior to the time it is placed in
trict of Columbia, the Commonwealth operation and the application, or
of Puerto Rico, the Canal Zone, Guam, amended application, in connection
American Samoa, the Virgin Islands, with such facility so states.
and the Trust Territory of the Pacific (h) An applicant may appeal any de-
Islands.
cision of the Regional Administrator
[36 FR 22382, Nov. 25, 1971, as amended at 43 which:
FR 1340, Jan. 9, 1978] (1) Denies certification;
§ 20.3 General provisions. (2) Disapproves the applicant’s sug-
gested method of allocating costs pur-
(a) An applicant shall file an applica- suant to § 20.8(e); or
tion in accordance with this part for
(3) Revokes a certification pursuant
each separate facility for which certifi-
to § 20.10.
cation is sought; Provided, That one ap-
plication shall suffice in the case of Any such appeal may be taken by filing
substantially identical facilities which with the Administrator within 30 days
the applicant has installed or plans to from the date of the decision of the Re-
install in connection with substan- gional Administrator a written state-
tially identical properties; Provided fur- ment of objections to the decision ap-
ther, That an application may incor- pealed from. Within 60 days after re-
porate by reference material contained ceipt of such appeal the Administrator
206
shall affirm, modify, or revoke the de- (e) If the facility is (or will be) used
cision of the Regional Administrator, in connection with more than one
stating in writing his reasons therefor. plant or other property, one or more of
[36 FR 22382, Nov. 25, 1971, as amended at 43 which were not in operation before
FR 1340, Jan. 9, 1978] January 1, 1976, a description of the op-
erations of the facility in respect to
§ 20.4 Notice of intent to certify. each plant or other property, including
(a) On the basis of applications sub- a reasonable allocation of the costs of
mitted prior to the construction, re- the facility among the plants being
construction, erection, acquisition, or serviced, and a description of the rea-
operation of a facility, the Regional soning and accounting method or
Administrator may notify applicants methods used to arrive at these alloca-
that such facility will be certified if: tions.
(1) The Regional Administrator de- (f) A description of the effect of the
termines that such facility, if con- facility in terms of type and quantity
structed, reconstructed, erected, ac- of pollutants, contaminants, wastes, or
quired, installed, and operated in ac-
heat, removed, altered, stored, disposed
cordance with such application will be
of, or prevented by the facility.
in compliance with requirements iden-
tified in § 20.8; and if (g) If the facility performs a function
(2) The application is accompanied by other than removal, alteration, stor-
a statement from the State certifying age, prevention, or disposal of pollut-
authority that such facility, if con- ants, contaminants, wastes, or heat, a
structed, reconstructed, acquired, description of all functions performed
erected, installed, and operated in ac- by the facility, including a reasonable
cordance with such application, will be identification of the costs of the facil-
in conformity with the State program ity allocable to removal, alteration,
or requirements for abatement or con- storage, prevention, or disposal of pol-
trol of water or air pollution. lutants, contaminants, wastes, or heat
(b) Notice of actions taken under this and a description of the reasoning and
section will be given to the appropriate accounting method or methods used to
State certifying authority. arrive at the allocation.
(h) Date when such construction, re-
§ 20.5 Applications. construction, or erection will be com-
Applications for certification under pleted or when such facility was (or
this part shall be submitted in such will be) acquired;
manner as the Administrator may pre- (i) Date when such facility is placed
scribe, shall be signed by the applicant (or is intended to be placed) in oper-
or agent thereof, and shall include the ation;
following information: (j) Identification of the applicable
(a) Name, address, and Internal Rev- State and local water or air pollution
enue Service identifying number of the control requirements and standards, if
applicant; any;
(b) Type and narrative description of (k) Expected useful life of facility;
the new identifiable facility for which
(l) Cost of construction, acquisition,
certification is (or will be) sought, in-
installation, operation, and mainte-
cluding a copy of schematic or engi-
neering drawings, and a description of nance of the facility;
the function and operation of such fa- (m) Estimated profits reasonably ex-
cility; pected to be derived through the recov-
(c) Address (or proposed address) of ery of wastes or otherwise in the oper-
facility location; ation of the facility over the period re-
(d) A general description of the oper- ferred to in paragraph (a)(6) of 26 CFR
ation in connection with which the fa- 1.169–2;
cility is (or will be) used and a descrip- (n) The percentage (if any, and if the
tion of the specific process or processes taxpayer claims that the percentage is
resulting in discharges or emissions 5 percent or less) by which the facility
which are (or will be) controlled or pre- (1) increases the output or capacity, (2)
vented by the facility. extends the useful life, or (3) reduces
207
§ 20.6 40 CFR Ch. I (7–1–00 Edition)
the total operating costs of the oper- § 20.8 Requirements for certification.
ating unit of the plant or other prop- (a) Subject to § 20.9, the Regional Ad-
erty most directly associated with the ministrator will certify a facility if he
pollution control facility and a descrip- makes the following determinations:
tion of the reasoning and accounting (1) It has been certified by the State
method or methods used to arrive at certifying authority.
this percentage. (2) That the facility:
(o) Such other information as the Ad- (i) Removes, alters, disposes of,
ministrator deems necessary for cer- stores, or prevents the creation of pol-
tification. lutants, contaminants, wastes, or heat,
which, but for the facility, would be re-
[36 FR 22382, Nov. 25, 1971, as amended at 43 leased into the environment;
FR 1340, Jan. 9, 1978] (ii) Does not by a factor or more than
5 percent: (A) Increase the output or
§ 20.6 State certification.
capacity, (B) extend the useful life, or
The State certification shall be by (C) reduce the total operating costs of
the State certifying authority having the operating unit (of the plant or
jurisdiction with respect to the facility other property) most directly associ-
in accordance with 26 U.S.C. ated with the pollution control facil-
169(d)(1)(A) and (d)(2). The certification ity; and
shall state that the facility described (iii) Does not significantly alter the
in the application has been con- nature of the manufacturing or produc-
structed, reconstructed, erected, or action process or facility.
quired in conformity with the State (3) The applicant is in compliance
with all regulations of Federal agen-
program or requirements for abate-
cies applicable to use of the facility,
ment or control of water or air pollu-
including conditions specified in any
tion. It shall be executed by an agent NPDES permit issued to the applicant
or officer authorized to act on behalf of under section 402 of the Act.
the State certifying authority. (4) The facility furthers the general
policies of the United States and the
§ 20.7 General policies.
States in the prevention and abate-
(a) The general policies of the United ment of pollution.
States for cooperation with the States (5) The applicant has complied with
in the prevention and abatement of all the other requirements of this part
water pollution are: To enhance the and has submitted all requested infor-
quality and value of our water re- mation.
sources; to eliminate or reduce the pol- (b) In determining whether use of a
lution of the nation’s waters and tribu- facility furthers the general policies of
taries thereof; to improve the sanitary the United States and the States in the
condition of surface and underground prevention and abatement of water pol-
waters; and to conserve such waters for lution, the Regional Administrator
shall consider whether such facility is
public water supplies, propagation of
consistent with the following, insofar
fish and aquatic life and wildlife, rec-
as they are applicable to the waters
reational purposes, and agricultural,
which will be affected by the facility:
industrial, and other legitimate uses. (1) All applicable water quality
(b) The general policy of the United standards, including water quality cri-
States for cooperation with the States teria and plans of implementation and
in the prevention and abatement of air enforcement established pursuant to
pollution is to cooperate with and to section 303 of the Act or State laws or
assist the States and local govern- regulations;
ments in protecting and enhancing the (2) Decisions issued pursuant to sec-
quality of the Nation’s air resources by tion 310 of the Act;
the prevention and abatement of condi- (3) Water pollution control programs
tions which cause or contribute to air required pursuant to any one or more
pollution which endangers the public of the following sections of the Act:
health or welfare. Section 306, section 307, section 311,
section 318, or section 405; or in order
208
to be consistent with a plan under sec- of pollutants, contaminants, wastes, or

tion 208. heat.
(c) In determining whether use of a [36 FR 22382, Nov. 25, 1971, as amended at 43
facility furthers the general policies of FR 1341, Jan. 9, 1978]
the United States and the States in the
prevention and abatement of air pollu- § 20.9 Cost recovery.
tion, the Regional Administrator shall Where it appears that, by reason of
consider whether such facility is con- estimated profits to be derived through
sistent with and meets the following the recovery of wastes, through sepa-
requirements, insofar as they are appli- rate charges for use of the facility in
cable to the air which will be affected question, or otherwise in the operation
by the facility; of such facility, all or a portion of its
(1) Plans for the implementation, costs may be recovered over the period
maintenance, and enforcement of am- referred to in paragraph (a)(6) of 26
bient air quality standards adopted or CFR 1.169–2, the Regional Adminis-
promulgated pursuant to section 110 of trator shall so signify in the notice of
the Act; certification. Determinations as to the
(2) Recommendations issued pursuant meaning of the term estimated profits
to sections 103(e) and 115 of the Act and as to the percentage of the cost of
which are applicable to facilities of the a certified facility which will be recov-
same type and located in the area to ered over such period shall be made by
which the recommendations are di- the Secretary of the Treasury, or his
rected; delegate: Provided, That in no event
(3) Local government requirements shall estimated profits be deemed to
for control of air pollution, including arise from the use or reuse by the ap-
emission standards; plicant of recovered waste.
(4) Standards promulgated by the Ad-
ministrator pursuant to the Act. § 20.10 Revocation.
(d) A facility that removes elements Certification hereunder may be re-
or compounds from fuels that would be voked by the Regional Administrator
released as pollutants when such fuels on 30 days written notice to the appli-
are burned is eligible for certification cant, served by certified mail, when-
if the facility is— ever the Regional Administrator shall
(1) Used in connection with a plant or determine that the facility in question
other property in operation before Jan- is no longer being operated consistent
uary 1, 1976 (whether located and used with the § 20.8 (b) and (c) criteria in ef-
at a particular plant or as a centralized fect at the time the facility was placed
facility for one or more plants), and in service. Within such 30-day period,
(2) Is otherwise eligible for certifi- the applicant may submit to the Re-
cation. gional Administrator such evidence,
data or other written materials as the
(e) Where a facility is used in connec-
applicant may deem appropriate to
tion with more than one plant or other
show why the certification hereunder
property, one or more of which were
should not be revoked. Notification of
not in operation before January 1, 1976,
a revocation under this section shall be
or where a facility will perform a func-
given to the Secretary of the Treasury
tion other than the removal, alter-
or his delegate. See 26 CFR 1.169–4(b)(1).
ation, storage, disposal, or prevention
of pollutants, contaminants, wastes, or APPENDIX A TO PART 20—GUIDELINES
heat, the Regional Administrator will FOR CERTIFICATION
so indicate on the notice of certifi-
cation and will approve or disapprove 1. General.
the applicant’s suggested method of al- 2. Air Pollution Control Facilities.
locating costs. If the Regional Admin- a. Pollution control or treatment facilities
normally eligible for certification.
istrator disapproves the applicant’s
b. Air pollution control facility bound-
suggested method, he shall identify the aries.
proportion of costs allocable to each c. Examples of eligibility limits.
such plant, or to the removal, alter- d. Replacement of manufacturing process
ation, storage, disposal, or prevention by another nonpolluting process.
209
3. Water Pollution Control Facilities. 2. Air pollution control facilities.
a. Pollution control or treatment facilities a. Pollution control or treatment facilities nor-
normally eligible for certification. mally eligible for certification. The following
b. Examples of eligibility limits. devices are illustrative of facilities for re-
4. Multiple-purpose facilities. moval, alteration, disposal, storage or pre-
5. Facilities serving both old and new plants. venting the creation or emission of air pollu-
6. State certification. tion:
7. Dispersal of pollutants. (1) Inertial separators (cyclones, etc.).
8. Profit-making facilities. (2) Wet collection devices (scrubbers).
9. Multiple applications. (3) Electrostatic precipitators.
1. General. Section 2112 of the Tax Reform (4) Cloth filter collectors (baghouses).
Act of 1976 (Pub. L. 94–455, October 4, 1976) (5) Director fired afterburners.
amended section 169 of the Internal Revenue (6) Catalytic afterburners.
Code of 1954, ‘‘Amortization of Pollution (7) Gas absorption equipment.
Control Facilities.’’ The amendment made (8) Vapor condensers.
permanent the rapid amortization provisions (9) Vapor recovery systems.
of section 704 of the Tax Reform Act of 1969 (10) Floating roofs for storage tanks.
(Pub. L. 91–172, December 30, 1969) and rede- (11) Fuel cleaning equipment.
fined eligibility limits to allow certification (12) Combinations of the above.
of facilities which prevent the creation or (b) Air Pollution control facility boundaries.
emission of pollutants. Most facilities are systems consisting of sev-
The law defines a certified pollution control eral parts. A facility need not start at the
facility as a new identifiable treatment facility point where the gaseous effluent leaves the
which is: last unit of the processing equipment, nor
(a) Used in connection with a plant or will it always extend to the point where the
other property in operation before January effluent is emitted to the atmosphere or ex-
1, 1976, to abate or control air or water pollu- isting stack, breeching, ductwork or vent. It
tion by removing, altering, disposing of, includes all the auxiliary equipment used to
storing, or preventing the creation or emis- operate the control system, such as fans,
sion of pollutants, contaminants, wastes, or blowers, ductwork, valves, dampers and elec-
heat; trical equipment. It also includes all equip-
(b) Constructed, reconstructed, erected or ment used to handle, store, transport or dis-
(if purchased) first placed in service by the pose of the collected pollutants.
taxpayer after December 31, 1975; (c) Examples of eligibility limits. The amorti-
(c) Not to significantly increase the output zation deduction is limited to new identifi-
or capacity, extend the useful life, alter the able treatment facilities which remove,
nature of the manufacturing or production alter, destroy, dispose of, store, or prevent
process or facility or reduce the total oper- the creation or emission of pollutants, con-
ating costs of the operating unit of the plant taminants or wastes. It is not available for
or other property most directly associated all expenditures for air pollution control and
with the pollution control facility (as sug- is limited to devices which are installed for
gested by the legislative history, EPA regu- the purpose of pollution control and which
lations define the term significant as any in- actually remove, alter, destroy, dispose of,
crease, reduction or extension greater than store or prevent the creation or emission of
5%); and pollutants by removing potential pollutants
(d) Certified by both State and Federal au- at any stage of the production process.
thorities, as provided in section 169(d)(1) (A) (1) Boiler modifications or replacements.
and (B) of the Internal Revenue Code. Modifications of boilers to accommodate
If the facility is a building, the statute re- cleaner fuels are not eligible for rapid amor-
quires that it be exclusively devoted to pol- tization: e.g., removal of stokers from a coal-
lution control. Most questions as to whether fired boiler and the addition of gas or oil
a facility is a building and, if so, whether it burners. The purpose of the burners is to
is exclusively devoted to pollution control are produce heat, and they are not identifiable
resolved by § 1.169–2(b)(2) of the Treasury De- as treatment facilities nor do they prevent
partment regulations. the creation or emission of pollutants by re-
Since a treatment facility is eligible only moving potential pollutants. A new gas or
if it furthers the general policies of the oil-fired boiler that replaces a coal-fired boil-
United States under the Clean Air Act and er would also be ineligible for certification.
the Clean Water Act, a facility will be cer- (2) Fuel processing. Eligible air pollution
tified only if its purpose is to improve the control facilities include preprocessing
quality of the air or water outside the plant. equipment which removes potential air pol-
Facilities to protect the health or safety of lutants from fuels before they are burned. A
employees inside the plant are not eligible. desulfurization facility would thus be eligi-
Facilities installed before January 1, 1976, ble provided it is used in connection with the
in plants placed in operation after December plant where the desulfurized coal will be
31, 1968, are ineligible for certification under burned or is used as a centralized facility for
the statute. 26 U.S.C. 169. one or more plants. However, fluidized bed
210
facilities would generally not be eligible for furnace would not qualify because its pur-
rapid amortization. Such facilities would al- pose is to produce copper matte.
most certainly increase output or capacity, 3. Water Pollution Control Facilities.
reduce total operating costs, or extend the a. Pollution control or treatment facilities nor-
useful life of the plant or other property by mally eligible for certification. The following
more than 5%, since the boiler itself would types of equipment are illustrative of facili-
be the operating unit of the plant most ties to remove, alter, destroy, store or pre-
closely associated with the pollution control vent the creation of water pollution:
facility. Where the Regional Office and the (1) Pretreatment facilities which neu-
taxpayer disagree as to the applicability of tralize or stabilize industrial or sanitary
the 5% rule, the Regional office should none- wastes, or both, from a point immediately
theless certify the facility if it is otherwise preceding the point of such treatment to the
eligible and leave the ultimate determina- point of disposal to, and acceptance by, a
tion to the Treasury Department. The cer- publicly-owned treatment works. The nec-
tification should alert Treasury to the possi- essary pumping and transmitting facilities
bility that the facility is ineligible for rapid are also eligible.
amortization. (2) Treatment facilities which neutralize or
(3) Incinerators. The addition of an after- stabilize industrial or sanitary wastes, or
burner, secondary combustion chamber or both, to comply with Federal, State or local
particulate collector would be eligible as effluent or water quality standards, from a
would any device added to effect more effi- point immediately preceding the point of
cient combustion. such treatment to the point of disposal, in-
(4) Collection devices used to collect products
cluding necessary pumping and transmitting
or process material. In some manufacturing
facilities, including those for recycle or seg-
operations, devices are used to collect prod-
regation of wastewater.
uct or process material, as in the case of the
(3) Ancillary devices and facilities such as
manufacture of carbon black. The baghouse
lagoons, ponds and structures for storage, re-
would be eligible for certification, but the
certification should notify the Treasury De- cycle, segregation or treatment, or any com-
partment of the profitable waste recovery in- bination of these, of wastewaters or wastes
volved. (See paragraph 8 below.) from a plant or other property.
(5) Intermittent control systems. Measuring (4) Devices, equipment or facilities con-
devices which inform the taxpayer that am- structed or installed for the primary purpose
bient air quality standards are being exceed- of recovering a by-product of the operation
ed are not eligible for certification since (saleable or otherwise) previously lost either
they do not physically remove, alter, de- to the atmosphere or to the waste effluent.
stroy, dispose of, store or prevent the cre- Examples are:
ation or emission of pollutants, but merely (A) A facility to concentrate and recover
act as a signal to curtail operations. Of vaporous by-products from a process stream
course, measuring devices used in connection for reuse as raw feedstock or for resale, un-
with an eligible pollution control facility less the estimated profits from resale exceed
would be eligible. the cost of the facility (see paragraph 8
d. Replacement of manufacturing process by below).
another, nonpolluting process. An installation (B) A facility to concentrate or remove
does not qualify for certification where it gunk or similar tars or polymerized tar-like
uses a process known to be cleaner than an materials from the process waste effluent
alternative, but which does not actually re- previously discharged in the plant effluents.
move, alter, destroy, dispose of, store or pre- Removal may occur at any stage of the pro-
vent the creation or emission of pollutants duction process.
by removing potential pollutants at any (C) A device used to extract or remove in-
stage in the production process. For exam- soluble constitutents from a solid or liquid
ple, a minimally polluting electric induction by use of a selective solvent; an open or
furnace to melt cast iron which replaces, or closed tank or vessel in which such extrac-
is installed instead of, a heavily polluting tion or removal occurs; a diffusion battery of
iron cupola furnace would be ineligible for tanks or vessels for countercurrent decanta-
this reason and because it is not an identifi- tion, extraction, or leaching, etc.
able treatment facility. However, if the re- (D) A skimmer or similar device for remov-
placement equipment has an air pollution ing grease, oils and fat-like materials from
control device added to it, the control device the process or effluent stream.
would be eligible even though the process (b) Examples of eligibility limits.
equipment would not. For example, where a (1) In-plant process changes which may re-
primary copper smelting reverberatory fur- sult in the reduction or elimination of pollu-
nace is replaced by a flash smelting furnace, tion but which do not themselves remove,
followed by the installation of a contact sul- alter, destroy, dispose of, store or prevent
furic acid plant, the acid plant would qualify the creation of pollutants by removing po-
since it is a control device not necessary to tential pollutants at some point in the proc-
the production process. The flash smelting ess stream are not eligible for certification.
211
(2) A device, piece of equipment or facility the State has denied certification for what-
is not eligible if it is associated with or in- ever reason.
cluded in a stream for subsurface injection of It should be noted that certification of a
untreated or inadequately treated industrial facility does not constitute the personal war-
or sanitary waste. ranty of the certifying official that the con-
4. Multiple-purpose facilities. A facility can ditions of the statute have been met. EPA
qualify for rapid amortization if it serves a certification is binding on the Government
function other than the abatement of pollu- only to the extent the submitted facts are
tion (unless it is a building). Otherwise, the accurate and complete.
effect might be to discourage installation of 7. Dispersal of pollutants. Section 169 applies
sensible pollution abatement facilities in to facilities which remove, alter, destroy,
favor of less efficient single-function facili- dispose of, store or prevent the creation or
ties. emission of pollutants—including heat. Fa-
The regulations require applicants to state cilities which merely disperse pollutants
what percentage of the cost of a facility is (such as tall stacks) do not qualify. However,
properly allocable to its abatement function there is no way to dispose of heat other than
and to justify the allocation. The Regional by transferring B.t.u.’s to the environment.
Office will review these allocations, and the A cooling tower is therefore eligible for cer-
certification will inform the Treasury De- tification provided it is used in connection
partment if the allocation appears to be in- with a pre-1976 plant. A cooling pond or an
correct. Although not generally necessary or addition to an outfall structure which re-
desireable, site inspections may be appro- sults in a decrease in the amount by which
priate in cases involving large sums of the temperature of the receiving water is
money or unusual types of equipment. raised and which meets applicable State
5. Facilities serving both old and new plants. standards is likewise eligible.
The statute provides that pollution control 8. Profit-making facilities. The statute de-
facilities must be used in connection with a nies rapid amortization where the cost of
plant or other property in operation before pollution control facilities will be recovered
January 1, 1976. When a facility is used in from profits derived through the recovery or
connection with both pre-1976 and newer wastes or otherwise.
property, it may qualify for rapid amortiza- If a facility recovers marketable wastes,
tion to the extent it is used in connection estimated profits on which are not sufficient
with pre-1976 property. to recover the entire cost of the facility, the
Again, the applicant will submit a theory amortization basis of the facility will be re-
of allocation for review by the Regional Of- duced in accordance with Treasury Depart-
fice. The usual method of allocation is to ment regulations. The responsibility of the
compare the effluent capacity of the pre-1976 Regional Offices is merely to identify for the
plant to the treatment capacity of the con- Treasury Department those cases in which
trol facility. For example, if the old plant estimated profits will arise. The Treasury
has a capacity of 80 units of effluent (but an Department will determine the amount of
average output of 60 units), the new plant such profits and the extent to which they
has a capacity of 40 units (but an average can be expected to result in cost recovery,
output of 20 units), and the control facility but the EPA certification should inform the
has a capacity of 150 units, then 80⁄150 of the Treasury whether cost recovery is possible.
cost of the control facility would be eligible The phrase or otherwise also includes situa-
for rapid amortization. tions where the taxpayer is in the business of
If a taxpayer presents a seemingly reason- renting the facility for a fee or charging for
able method of allocation different from the the treatment of waste. In such cases, the fa-
foregoing, Regional Office personnel should cility may theoretically qualify for EPA cer-
consult with the Office of Air Quality Plan- tification. The decision as to the extent of
ning and Standards or the Office of Water its profitability is for the Treasury Depart-
Planning and Standards, and with the Office ment. Situations may also arise where use of
of General Counsel. a facility is furnished at no additional
6. State certification. To qualify for rapid charge to a number of users, or to the public,
amortization under section 169, a facility as part of a package of other services. In
must first be certified by the State as having such cases, no profits will be deemed to arise
been installed ‘‘in conformity with the State from operation of the facility unless the
program or requirements for abatement or other services included in the package are
control of water or atmospheric pollution or merely ancillary to use of the facility. Of
contamination.’’ Significantly, the statute course, the cost recovery provision does not
does not say that the State must require apply where a taxpayer merely recovers the
that a facility be installed. If use of a facil- cost of a facility through general revenues;
ity will not actually contravene a State re- otherwise no profitable firm would ever be
quirement, the State may certify. However, eligible for rapid amortization.
since State certification is a prerequisite to It should be noted that § 20.9 of the EPA
EPA certification, EPA may not certify if regulation is not meant to affect general
212
principles of Federal income tax law. An in- Business Act and section 8 of the Fed-
dividual other than the title holder of a piece eral Water Pollution Control Act
of property may be entitled to take deprecia- Amendments of 1972, to the effect that
tion deductions on it if the arrangements by
which such individual has use of the prop-
additions to or alterations in the
erty may, for all practical purposes, be equipment, facilities (including the
viewed as a purchase. In any such case, the construction of pretreatment facilities
facility could qualify for full rapid amortiza- and interceptor sewers), or methods of
tion, notwithstanding the fact that the title operations of small business concerns
holder charges a separate fee for the use of are necessary and adequate to comply
the facility, so long as the taxpayer—in such with requirements established under
a case, the user—does not charge a separate
the Federal Water Pollution Control
fee for use of the facility.
9. Multiple applications. Under EPA regula- Act, 33 U.S.C. 1151, et seq.
tions, a multiple application may be sub-
mitted by a taxpayer who applies for certifi- § 21.2 Definitions.
cation of substantially identical pollution (a) Small business concern means a
abatement facilities used in connection with
concern defined by section 2[3] of the
substantially identical properties. It is not
contemplated that the multiple application Small Business Act, 15 U.S.C. 632, 13
option will be used with respect to facilities CFR part 121, and regulations of the
in different States, since each such facility Small Business Administration pro-
would require a separate application for cer- mulgated thereunder.
tification to the State involved. EPA regula- (b) For purposes of paragraph 7(g)(2)
tions also permit an applicant to incorporate of the Small Business Act, necessary
by reference in an application material con- and adequate refers to additions, alter-
tained in an application previously filed. The
purpose of this provision is to avoid the bur-
ations, or methods of operation in the
den of furnishing detailed information absence of which a small business con-
(which may in some cases include portions of cern could not comply with one or
catalogs or process flow diagrams) which the more applicable standards. This can be
certifying official has previously received. determined with reference to design
Accordingly, material filed with a Regional specifications provided by manufactur-
Office of EPA may be incorporated by refers, suppliers, or consulting engineers;
erence only in an application subsequently including, without limitations, addi-
filed with the same Regional Office.
tions, alterations, or methods of oper-
[47 FR 38319, Aug. 31, 1982] ation the design specifications of which
will provide a measure of treatment or
PART 21—SMALL BUSINESS abatement of pollution in excess of
that required by the applicable stand-
Sec. ard.
21.1 Scope. (c) Applicable Standard means any re-
21.2 Definitions. quirement, not subject to an exception
21.3 Submission of applications.
21.4 Review of application. under § 21.6, relating to the quality of
21.5 Issuance of statements. water containing or potentially con-
21.6 Exclusions. taining pollutants, if such requirement
21.7 [Reserved] is imposed by:
21.8 Resubmission of application. (1) The Act;
21.9 Appeals.
21.10 Utilization of the statement.
(2) EPA regulations promulgated
21.11 Public participation. thereunder or permits issued by EPA
21.12 State issued statements. or a State thereunder;
21.13 Effect of certification upon authority (3) Regulations by any other Federal
to enforce applicable standards. Agency promulgated thereunder;
AUTHORITY: 15 U.S.C. 636, as amended by (4) Any State standard or require-
Pub. L. 92–500. ment as applicable under section 510 of
SOURCE: 42 FR 8083, Feb. 8, 1977, unless oth- the Act;
erwise noted. (5) Any requirements necessary to
comply with an areawide management
§ 21.1 Scope. plan approved pursuant to section
This part establishes procedures for 208(b) of the Act;
the issuance by EPA of the statements, (6) Any requirements necessary to
referred to in section 7(g) of the Small comply with a facilities plan developed
213
§ 21.3 40 CFR Ch. I (7–1–00 Edition)
under section 201 of the Act (see 35 Comment: This provision would not later
CFR, subpart E); preclude SBA financial assistance being uti-
lized for any planning or design effort con-
(7) Any State regulations or laws
ducted previous to construction.
controlling the disposal of aqueous pol-
lutants that may affect groundwater. (l) The term additions and alterations
(d) Regional Administrator means the means the act of undertaking construc-
Regional Administrator of EPA for the tion of any facility.
region including the State in which the (m) The term methods of operation
facility or method of operation is lo- means the installation, emplacement,
cated, or his designee. or introduction of materials, including
(e) Act means the Federal Water Pol- those involved in construction, to
lution Control Act, 33 U.S.C. 1151, et achieve a process or procedure to con-
seq. trol: Surface water pollution from non-
(f) Pollutant means dredged spoil, point sources—that is, agricultural,
solid waste, incinerator residue, sew- forest practices, mining, construction;
age, garbage, sewage sludge, muni- ground or surface water pollution from
tions, chemical wastes, biological ma- well, subsurface, or surface disposal op-
terials, radioactive materials, heat, erations; activities resulting in salt
wrecked or discarded equipment, rock, water intrusion; or changes in the
sand, cellar dirt and industrial, munic- movement, flow, or circulation of navi-
ipal, and agricultural waste discharged gable or ground waters.
into water. For the purposes of this (n) The term vessel means every de-
section, the term also means sewage scription of watercraft or other artifi-
from vessels within the meaning of sec- cial contrivance used, or capable of
tion 312 of the Act. being used, as a means of transpor-
(g) Permit means any permit issued tation on the navigable waters of the
by either EPA or a State under the au- United States other than a vessel
thority of section 402 of the Act; or by owned or operated by the United States
the Corps of Engineers under section or a State or a political subdivision
404 of the Act. thereof, or a foreign nation; and is used
(h) State means a State, the District for commercial purposes by a small
of Columbia, the Commonwealth of business concern.
(o) EPA means the Environmental
Puerto Rico, the Virgin Islands, Guam,
Protection Agency.
American Samoa, and the Trust Terri-
(p) SBA means the Small Business
tory of the Pacific Islands.
Administration.
Comment: As the SBA does not extend its (q) Areawide agency means an
programs to the Canal Zone, the listing of areawide management agency des-
the Canal Zone as a State for the purposes of ignated under section 208(c)(1) of the
meeting a requirement imposed by section Act.
311 or 312 of the Act is not effective in this
regulation.
(r) Lateral sewer means a sewer which
connects the collector sewer to the in-
(i) Statement means a written ap- terceptor sewer.
proval by EPA, or if appropriate, a (s) Interceptor sewer means a sewer
State, of the application. whose primary purpose is to transport
(j) Facility means any building, struc- wastewaters from collector sewers to a
ture, installation or vessel, or portion treatment facility.
thereof.
(k) Construction means the erection, § 21.3 Submission of applications.
building, acquisition, alteration, re- (a) Applications for the statement de-
modeling, modification, improvement, scribed in § 21.5 of this part shall be
or extension of any facility; Provided, made to the EPA Regional Office for
That it does not mean preparation or the region covering the State in which
undertaking of: Plans to determine fea- the additions, alterations, or methods
sibility; engineering, architectural, of operation covered by the application
legal, fiscal, or economic investiga- are located. A listing of EPA Regional
tions or studies; surveys, designs, Offices, with their mailing addresses,
plans, writings, drawings, specifica- and setting forth the States within
tions or procedures. each region is as follows:
214
Region Address State
I .............. Regional Administrator, region I, EPA, John F. Kennedy Fed- Connecticut, Maine, Massachusetts, New Hamp-
eral Bldg., room 2303, Boston, MA 02203. shire, Rhode Island, and Vermont.
II ............. Regional Administrator, region II, EPA, 26 Federal Plaza, New Jersey, New York, Virgin Islands, and Puerto
room 908, New York, NY 10007. Rico.
III ............ Regional Administrator, region III, EPA, Curtis Bldg., 6th and Delaware, District of Columbia, Pennsylvania, Mary-
Walnut Sts., Philadelphia, PA 19106. land, Virginia, and West Virginia.
IV ........... Regional Administrator, region IV, EPA, 345 Courtland St. Alabama, Florida, Georgia, Kentucky, Mississippi,
NE., Atlanta, GA 30308. North Carolina, South Carolina, and Tennessee.
V ............ Regional Administrator, region V, EPA, 77 West Jackson Illinois, Indiana, Michigan, Minnesota, Ohio, and
Boulevard, Chicago, IL 60604. Wisconsin.
VI ........... Regional Administrator, region VI, EPA, 1201 Elm St., 27th Arkansas, Louisiana, New Mexico, Oklahoma, and
floor, First International Bldg., 70 Dallas, TX 75201. Texas.
VII .......... Regional Administrator, region VII, EPA, 1735 Baltimore Iowa, Kansas, Missouri, and Nebraska.
Ave., Kansas City, MO 64108.
VIII ......... Regional Administrator, region VIII, EPA, 1860 Lincoln St., Colorado, Montana, North Dakota, South Dakota,
Suite 900, Denver, CO 80203. Utah, and Wyoming.
IX ........... Regional Administrator, region IX, EPA, 100 California St., Arizona, California, Hawaii, Nevada, Guam, Amer-
San Francisco, CA 94111. ican Samoa, and Trust Territory of the Pacific Is-
lands.
X ............ Regional Administrator, region X, EPA, 1200 6th Ave., Se- Alaska, Idaho, Oregon, and Washington.
attle, WA 98101.
(b) An application described in para- matic diagram of the major equipment

graph (1) of § 21.3(c) may be submitted and process, where practicable.
directly to the appropriate State, (5) A specific description of the addi-
where a State has assumed responsi- tions, alterations, or methods of oper-
bility for issuing the statement. Infor- ation covered by the application.
mation on whether EPA has retained Where appropriate, such description
responsibility for certification or will include a summary of the facility
whether it has been assumed by the construction to be undertaken; a list-
State may be obtained from either the ing of the major equipment to be pur-
appropriate Regional Administrator or chased or utilized in the operation of
the State Water Pollution Control Au- the facility; the purchase of any land
thority in which the facility is located. or easements necessary to the oper-
(c) An application need be in no par- ation of the facility; and any other
ticular form, but it must be in writing items that the applicant deems perti-
and must include the following:
nent. Any information that the appli-
(1) Name of applicant (including busi- cant considers to be a trade secret
ness name, if different) and mailing ad-
shall be identified as such.
dress. Address of the affected facility
or operation, if different, should also be (6) A declaration of the requirement,
included. or requirements, for compliance with
(2) Signature of the owner, partner, which the alterations, additions, or
or principal executive officer request- methods of operation are claimed to be
ing the statement. necessary and adequate.
(3) The Standard Industrial Classi- (i) If the requirement results from a
fication number for the business for permit issued by EPA or a State under
which an application is being subsection 402 of the Act, the permit num-
mitted. Such SIC number shall be ob- ber shall be included.
tained from the Standard Industrial (ii) If the requirement results from a
Classification Manual, 1972 edition. If permit issued by EPA or a State for a
the applicant does not know the SIC publicly-owned treatment works, the
for the business, a brief description of municipal permit number shall be in-
the type of business activity being concluded along with a written declaration
ducted should be provided. from the authorized agent for the pub-
(4) A description of the process or ac- licly owned treatment works that re-
tivity generating the pollution to be ceived the permit detailing the specific
abated by the additions, alterations, or pretreatment requirements being
methods of operation covered by the placed upon the applicant.
application, accompanied by a sche-
215
§ 21.3 40 CFR Ch. I (7–1–00 Edition)
(iii) If the requirement initiates from Comment: Some States under State permit
a plan to include the applicant’s efflu- programs, separate and distinct from the
ent in an existing municipal sewer sys- NPDES permit program under the Act, con-
duct an engineering review of the facilities
tem through the construction of lat-
or equipment that would be used to control
eral or interceptor sewers, a written pollution. The results of such a review would
declaration from the authorized agent be materially helpful in determining the ne-
for the publicly owned treatment cessity and adequacy of any alterations or
works shall be included noting that the additions.
sewer construction is consistent with (8) Any written information from a
the integrity of the system; will not re- manufacturer, supplier, or consulting
sult in the capacity of the publicly engineer, or similar independent
owned treatment works being exceed- source, concerning the design capabili-
ed; and where applicable, is consistent ties of the additions or alterations cov-
with a facilities plan developed under ered by the application, including any
section 201 of the Act (see 35 CFR part warranty limitations or certifications
917). obtained from or provided by such
(iv) If the requirement results from a sources which would bear upon these
State order, regulation, or other en- design or performance capabilities. The
forceable authority controlling pollu- Regional Administrator may waive the
tion from a vessel as provided by sec- requirement for this paragraph if it ap-
tion 312(f)(3) of the Act, a written dec- pears that there is no independent
laration from the authorized agent of source for the information described
the State specifying the control meas- herein; as, for example, when the appli-
ures being required of the applicant cant has designed and constructed the
shall be included. additions or alterations with in-house
(v) If the requirement is a result of a capability.
permit issued by the Corps of Engi- (9) An estimated schedule for the
neers related to permits for dredged or construction or implementation of the
fill material as provided by section 404 alterations, additions, or methods of
of the Act, a copy of the permit as operation.
issued shall be included. (10) An estimated cost of the alter-
(vi) If the requirement results from a ations, additions, or methods of oper-
standard of performance for control of ation, and where practicable, the indi-
sewage from vessels as promulgated by vidual costs of major elements of the
the Coast Guard under section 312(b) of construction to be undertaken.
the Act, the vessel registration number (11) Information on previously re-
or documentation number shall be in- ceived loan assistance under this sec-
cluded. tion for the facility or method of oper-
(vii) If the requirement results from ation, including a description and dates
a plan to control or prevent the dis- of the activity funded.
charge or spill of pollutants as identi- (d) A separate application must be
fied in section 311 of the Act, the title submitted for every addition, alter-
and date of that plan shall be included. ation, or method of operation that is at
(viii) If the requirement is the result a separate geographical location from
of an order by a State or an areawide the initial application.
management agency controlling the
disposal of aqueous pollutants so as to Comment: As an example, a chain has four
protect groundwater, a copy of the dry cleaning establishments scattered
order as issued shall be included. through a community. A separate applica-
tion would have to be filed for each.
(7) Additionally, if the applicant has
received from a State Water Pollution (e) No statement shall be approved
Control Agency a permit issued by the for any application that has not in-
State within the preceding two years, cluded the information or declaration
and if such permit was not issued under requirements imposed by paragraph
the authorities of section 402 of the (c)(6) of § 21.3.
Act, and where the permit directly re- (f) All applications are to be sub-
lates to abatement of the discharge for mitted in duplicate.
which a statement is sought, a copy of (g) All applications are subject to the
that permit shall also be included. provisions of 18 U.S.C. 1001 regarding
216
prosecution for the making of false § 21.5 Issuance of statements.

statements or the concealing of mate- (a) Upon application by a small busi-
rial facts. ness concern pursuant to § 21.3 the Re-
(h) Instructional guidelines to assist gional Administrator will, if he finds
in the submission of applications for that the additions, alterations, or
EPA certification are available from methods of operation covered by the
EPA or a certifying State. application are adequate and necessary
[42 FR 8083, Feb. 8, 1977, as amended at 62 FR to comply with an applicable standard,
1833, Jan. 14, 1997] issue a written statement to the appli-
cant to that effect, within 45 working
§ 21.4 Review of application. days following receipt of the applica-
tion, or within 45 working days fol-
(a) The Regional Administrator or
lowing receipt of all information re-
his designee will conduct a review of
quired to be submitted pursuant to
the application. This review will con-
§ 21.3(c), whichever is later. Such a
sist of a general assessment of the ade-
written statement shall be classified as
quacy of the proposed alterations, addi-
a full approval. If an application is de-
tions, or methods of operation. The re-
ficient in any respect, with regard to
view will corroborate that the proposed
the specifications for submission listed
alterations, additions, or methods of
in § 21.3(c), the Regional Administrator
operation are required by an applicable
shall promptly, but in no event later
standard. The review will identify any than 30 working days following receipt
proposed alterations, additions, or of the application, notify the applicant
methods of operation that are not re- of such deficiency.
quired by an applicable standard, or (b)(1) If an application contains pro-
that are extraneous to the achievement posed alterations, additions, or meth-
of an applicable standard. ods of operation that are adequate and
(b) The assessment of adequacy will necessary to comply with an applicable
be conducted to ensure that the pro- standard but also contains proposed al-
posed additions, alterations, or meth- terations, additions, or methods of op-
ods of operation are sufficient to meet eration that are not necessary to com-
one or more applicable standards ply with an applicable standard, the
whether alone or in conjunction with Regional Administrator shall condi-
other plans. The assessment will not tionally approve the application within
generally examine whether other alter- the time limit specified in paragraph
natives exist or would be more meri- (a) of this section, and shall also iden-
torious from a cost-effective, effi- tify in the approval those alterations,
ciency, or technological standpoint. additions, or methods of operation that
(c) An application which proposes ad- he determines are not necessary.
ditions, alterations, or methods of op- (2) Conditional approvals as con-
eration whose design, in anticipation of tained in a statement will satisfy the
a future requirement, will achieve a requirements for approval by EPA for
level of performance above the require- those alterations, additions, or meth-
ments imposed by a presently applica- ods of operation determined to be nec-
ble standard shall be reviewed and ap- essary and adequate. Such conditional
proved by EPA or a State without prej- approvals may be submitted to SBA in
udice. The amount of financial assist- satisfaction of the requirements of sec-
ance for such an application will be de- tion 7(g)(2)(B) of the Small Business
termined by SBA. Act.
(d) The Regional Administrator shall (3) Conditional approvals will not
retain one copy of the application and satisfy the requirements for approval
a summary of the action taken on it. by EPA for those alterations, addi-
Upon completion of his review, the Re- tions, or methods of operation included
gional Administrator shall return the in the application that are determined
original application along with any not to be necessary. Unnecessary alter-
other supporting documents or infor- ations, additions, or methods of oper-
mation provided to the applicant along ation are those which are extraneous
with a copy to the appropriate SBA to the achievement of an applicable
district office for processing. standard.
217
§ 21.6 40 CFR Ch. I (7–1–00 Edition)
(4) Conditional approvals may be ap- (h) An applicant may be issued a cer-
pealed to the Deputy Administrator by tification for additions, alterations, or
an applicant in accordance with the methods of operation constructed or
procedures identified in § 21.8. undertaken before loan assistance was
(c) If the Regional Administrator de- applied for by the applicant. Any such
termines that the additions, alter- applications would be reviewed by SBA
ations, or methods of operation covered for eligibility under SBA criteria, in-
by an application are not necessary cluding refinancing and loan exposure.
and adequate to comply with an appli-
cable standard, he shall disapprove the § 21.6 Exclusions.
application and shall so advise the ap- (a) Statements shall not be issued for
plicant of such determination within applications in the following areas:
the time limit specified in paragraph (1) Local requirements. Applications
(a) of this section, and shall state in for statements for additions, alter-
writing the reasons for his determina- ations, or methods of operation that
tion. result from requirements imposed by
(d) Any application shall be dis- municipalities, counties or other forms
approved if the Regional Administrator of local or regional authorities and
determines that the proposed addition, governments, except for areawide man-
alteration, or method of operation agement agencies designated and ap-
would result in the violation of any proved under section 208 of the Act,
other requirement of this Act, or of shall not be approved; except for those
any other Federal or State law or regu- requirements resulting from the appli-
lation with respect to the protection of cation of pretreatment requirements
the environment. under section 307(b) of the Act; or those
resulting from an approved project for
(e) An applicant need not dem-
facilities plans, and developed under
onstrate that its facility or method of
section 201 of the Act. (See 35 CFR,
operation will meet all applicable re-
subpart E); or under a delegation of au-
quirements established under the Act.
thority under the Act.
The applicant need only demonstrate
(2) Cost recovery and user charges. Ap-
that the additions, alterations, or
plications for statements involving a
methods of operation will assist in en- request for financial assistance in
suring compliance with one or more of meeting revenue and service charges
the applicable standards for which fi- imposed upon a small business by a
nancial assistance is being requested. municipality conforming to regula-
Comment: As an example, a small business tions governing a user charge or cap-
has two discharge pipes—one for process ital cost system under section 204(b)(2)
water, the other for cooling water. The appli- of the Act (see 35 CFR 925–11 and 925–12)
cation for loan assistance is to control pollu- shall not be approved.
tion from the process water discharge. How- (3) New facility sewer construction. Ap-
ever, EPA or a State may review the appli- plications for statements involving
cant’s situation and identify for SBA that
projects that involve the construction
the applicant is subject to other require-
ments for which the applicant has not of a lateral, collection, or interceptor
sought assistance. sewer, at a facility that was not in ex-
istence on October 18, 1972, shall not be
(f) An application should not include approved. Applications for additions,
major alternative designs significantly alterations, or methods of operation
differing in scope, concept, or capa- for new facilities that do not involve
bility. It is expected that the applicant sewer construction are not affected by
at the time of submission will have se- this preclusion. Further, if an appli-
lected the most appropriate or suitable cant is compelled to move as a result of
design for the addition, alteration, or a relocation requirement but operated
method of operation. at the facility prior to October 18, 1972,
(g) EPA will not provide assistance in the cost of construction for a lateral,
the form of engineering, design, plan- collection, or interceptor sewer can be
ning or other technical services to any approved for the new, relocated site.
applicant in the preparation of his ap- For the purpose of this exclusion lat-
plication. eral, collection, or interceptor sewer is
218
determined as any sewer transporting programs to control such sources cannot be

waste from a facility or site to any determined at this time. As State and
publicly owned sewer. areawide plans for control of nonpoint
sources being prepared under section 208 of
(4) Other non-water related pollution
the Act, will not be completed for several
abatement additions, alterations, or years, this section is being reserved pending
methods of operation which are not in- a future determination on the eligibility of
tegral to meeting the requirements of applications relating to non-profit sources to
the Act, although they may be achiev- receive a statement under this part.
ing the requirements of another Fed-
eral or State law or regulation. § 21.8 Resubmission of application.
Comment: An example would be where (a) A small business concern whose
stack emission controls were required on application is disapproved may submit
equipment that operated the water pollution an amended or corrected application to
control facility. This emission control equip- the Regional Administrator at any
ment as an integral part of the water pollu- time. The applicant shall provide the
tion control systems would be approvable. date of any previous application.
However, emission control equipment for a
(b) [Reserved]
general purpose incinerator that only inci-
dentally burned sewage sludge would not be
§ 21.9 Appeals.
approvable. The general purpose incinerator
might also receive loan assistance but under (a) An applicant aggrieved by a deter-
separate procedures than those set out for mination of a Regional Administrator
water pollution control. under § 21.5 may appeal in writing to
(5) Privately owned treatment facility the Deputy Administrator of the Envi-
service or user costs. Applications for ronmental Protection Agency, within
statements involving financial assist- 30 days of the date of the determina-
ance in meeting user cost or fee sched- tion from which an appeal is taken;
ules related to participating in a pri- Provided, That the Deputy Adminis-
vately owned treatment facility not trator may, on good cause shown, ac-
under the ownership or control of the cept an appeal at a later time.
applicant shall not be approved. (b) The applicant in requesting such
(6) Operation and maintenance charges. an appeal shall submit to the Deputy
Applications for statements containing Administrator a copy of the complete
a request for financial assistance in application as reviewed by the Re-
meeting the operations and mainte- gional Administrator.
nance costs of operating the appli- (c) The applicant should also provide
cant’s additions, alterations, or meth- information as to why it believes the
ods of operation shall not be approved determination made by the Regional
for any elements relating to such areas Administrator to be in error.
of cost. (d) The Deputy Administrator shall
(7) Evidence of financial responsibility. act upon such appeal within 60 days of
Applications for statements containing receipt of any complete application for
a request for financial assistance in a review of the determination.
meeting any requirements relating to (e) Where a State has been delegated
evidence of financial responsibility as certification authority, the procedure
provided in section 311(p) of the Act for appeals shall be established in the
shall not be approved. State submission required in § 21.12.
§ 21.7 [Reserved] § 21.10 Utilization of the statement.

Comment: Applications for a statement re- (a) Statements issued by the Re-
sulting from a requirement to control pollu- gional Administrator will be mailed to
tion from non-point sources as identified in the small business applicant and to the
section 304(e)(2)(A–F) of the Act and de- district office of the Small Business
scribed in § 21.2(m) will not presently be Administration serving the geographic
issued a statement under § 21.5 unless the re- area where the business is located. It is
quirement is established through a permit
under section 402. There is no requirement
the responsibility of the applicant to
under the current Act that the Federal Gov- also forward the statement to SBA as
ernment control pollution from such sources, part of the application for a loan.
and the nature and scope of State or (b) Any statement or determination
areawide management agency proposals or issued under § 21.5 shall not be altered,
219
§ 21.11 40 CFR Ch. I (7–1–00 Edition)
modified, changed, or destroyed by any there is or will be no substantive

applicant in the course of providing change in the scope, concept, design,
such statement to SBA. To do so can capability, or conduct of the facility or
result in the revocation of any ap- operation.
proval contained in the statement and
Comment: However, eligibility for finan-
subject the applicant to the penalties cial assistance would be reexamined by SBA
provided in 18 U.S.C. 1001. with regard to any such sale, lease, rental or
(c) If an application for which a transfer.
statement is issued under § 21.5 is sub-
stantively changed in scope, concept, (h) The Regional Administrator may
design, or capability prior to the ap- include in any statement a date of ex-
proval by SBA of the financial assist- piration, after which date the approval
ance requested, the statement as issued by the Regional Administrator con-
shall be revoked. The applicant must tained in the statement shall no longer
resubmit a revised application under apply. The date of expiration shall not
§ 21.3 and a new review must be con- become effective if the applicant has
ducted. Failure to meet the require- submitted the statement to the SBA,
ments of this paragraph could subject prior to the date of expiration, as part
the applicant to the penalties specified of the application for financial assist-
in 18 U.S.C. 1001 and 18 U.S.C. 286. A ance.
substantive change is one which mate-
§ 21.11 Public participation.
rially affects the performance or capa-
bility of the proposed addition, alter- (a) Applications shall not generally
ation, or method of operation. be subject to public notice, public com-
(d) An agency, Regional Adminis- ment, or public hearings. Applications
trator, or State issuing a statement during the period of review as stated in
under § 21.5 shall retain a complete § 21.5, or during the period of appeal as
copy of the application for a period of provided in § 21.8, shall be available for
five years after the date of issuance of public inspection. Approved applica-
the statement. The application shall be tions as provided in § 21.10(d) shall be
made available upon request for inspec- available for public inspection at all
tion or use at any time by any agency times during the five year period.
of the Federal Government. (b) The Regional Administrator, if he
(e) No application for a statement or believes that the addition, alteration,
for financial assistance under this sec- or method of operation may adversely
tion or statement issued under this and significantly affect an interest of
section shall constitute or be construed the public, shall provide for a public
as suspending, modifying, revising, ab- notice and/or public hearing on the ap-
rogating or otherwise changing the re- plication. The public notice and/or pub-
quirements imposed on the applicant lic hearing shall be conducted in ac-
by the terms, conditions, limitations cordance with the procedures specified
or schedules of compliance contained for a permit under 40 CFR 125.32 and
in an applicable standard, permit, or 125.34(b).
other provision established or author- (c) Where the applicant is able to
ized under the Act or any State or demonstrate to the satisfaction of the
local statute, ordinance or code. Regional Administrator that disclosure
(f) No statement as issued and re- of certain information or parts thereof
viewed shall be construed as a waiver as provided in § 21.3(c)(5) would result
to the applicants fulfilling the require- in the divulging of methods or proc-
ments of any State or local law, stat- esses entitled to protection as trade se-
ute, ordinance, or code (including crets, the Regional Administrator shall
building, health, or zoning codes). treat the information or the particular
(g) An amended application need not part as confidential in accordance with
be submitted if the facility, property, the purposes of section 1905 of Title 18
or operation for which the statement is of the United States Code and not re-
issued is sold, leased, rented, or trans- lease it to any unauthorized person.
ferred by the applicant to another Provided, however, That if access to
party prior to approval by SBA of the such information is subsequently re-
financial assistance: Provided, That quested by any person, there will be
220
compliance with the procedures speci- shall approve any State program that
fied in 40 CFR part 2. Such information conforms to the requirements of this
may be disclosed to other officers, em- section. Any such approval shall be
ployees, or authorized representatives after sufficient notice has been pro-
of the United States concerned with vided to the Regional Director of SBA.
carrying out the Act or when relevant (c) If the Regional Administrator dis-
in any proceeding under the Act. approves the application, he shall no-
tify the State, in writing, of any defi-
§ 21.12 State issued statements. ciency in its application. A State may
(a) Any State after the effective date resubmit an amended application at
of these regulations may submit to the any later time.
Regional Administrator for his ap- (d) Upon approval of a State submis-
proval an application to conduct a pro- sion, EPA will suspend all review of ap-
gram for issuing statements under this plications and issuance of statements
section. for small businesses in that State,
(1) A State submission shall specify pending transferral. Provided, however,
the organizational, legal, financial, and That in the event of a State conflict of
administrative resources and proce- interest as identified in § 21.12(a)(4) of
dures that it believes will enable it to this section, EPA shall review the ap-
conduct the program. plication and issue the statement.
(2) The State program shall con- (e) Any applications shall, if received
stitute an equivalent effort to that re- by an EPA Regional Office, be for-
quired of EPA under this section. warded promptly to the appropriate
(3) The State organization respon- State for action pursuant to section
sible for conducting the program 7(g)(2) of the Small Business Act and
should be the State water pollution these regulations.
control agency, as defined in section (f)(1) EPA will generally not review
502 of the Act. or approve individual statements
(4) The State submission shall pro- issued by a State. However, SBA, upon
pose a procedure for adjudicating appli- receipt and review of a State approved
cant appeals as provided under § 21.9. statement may request the Regional
(5) The State submission shall iden- Administrator of EPA to review the
tify any existing or potential conflicts statement. The Regional Adminis-
of interest on the part of any personnel trator, upon such request can further
who will or may review or approve ap- approve or disapprove the State issued
plications. statement, in accordance with the re-
(i) A conflict of interest shall exist quirements of § 21.5.
where the reviewing official is the (2) The Regional Administrator will
spouse of or dependent (as defined in periodically review State program per-
the Tax Code, 26 U.S.C. 152) of an formance. In the event of State pro-
owner, partner, or principal officer of gram deficiencies the Regional Admin-
the small business, or where he has or istrator will notify the State of such
is receiving from the small business deficiencies.
concern applicant 10 percent of gross (3) During that period that any
personal income for a calendar year, State’s program is classified as defi-
except that it shall mean 50 percent cient, statements issued by a State
gross personal income for a calendar shall also be sent to the Regional Ad-
year if the recipient is over 60 years of ministrator for review. The Regional
age and is receiving such portion pur- Administrator shall notify the State,
suant to retirement, pension, or simi- the applicant, and the SBA of any de-
lar arrangements. termination subsequently made, in ac-
(ii) If the State is unable to provide cordance with § 21.5, on any such state-
alternative parties to review or ap- ment.
prove any application subject to con- (i) If within 60 days after notice of
flict of interest, the Regional Adminis- such deficiencies has been provided,
trator shall review and approve the ap- the State has not taken corrective ef-
plication. forts, and if the deficiencies signifi-
(b) The Regional Administrator, cantly affect the conduct of the pro-
within 60 days after such application, gram, the Regional Administrator,
221
§ 21.13 40 CFR Ch. I (7–1–00 Edition)
after sufficient notice has been pro- Subpart B—Parties and Appearances
vided to the Regional Director of SBA,
22.10 Appearances.
shall withdraw the approval of the 22.11 Intervention and non-party briefs.
State program. 22.12 Consolidation and severance.
(ii) Any State whose program is with-
drawn and whose deficiencies have been Subpart C—Prehearing Procedures
corrected may later reapply as pro-
22.13 Commencement of a proceeding.
vided in § 21.12(a).
22.14 Complaint.
(g) Funds appropriated under section 22.15 Answer to the complaint.
106 of the Act may be utilized by a 22.16 Motions.
State agency authorized to receive 22.17 Default.
such funds in conducting this program. 22.18 Quick resolution; settlement; alter-
native dispute resolution.
§ 21.13 Effect of certification upon au- 22.19 Prehearing information exchange; pre-
thority to enforce applicable stand- hearing conference; other discovery.
ards. 22.20 Accelerated decision; decision to dis-
miss.
The certification by EPA or a State
for SBA Loan purposes in no way con- Subpart D—Hearing Procedures
stitutes a determination by EPA or the
State that the facilities certified (a) 22.21 Assignment of Presiding Officer;
scheduling the hearing.
will be constructed within the time
22.22 Evidence.
specified by an applicable standard or 22.23 Objections and offers of proof.
(b) will be constructed and installed in 22.24 Burden of presentation; burden of per-
accordance with the plans and speci- suasion; preponderance of the evidence
fications submitted in the application, standard.
will be operated and maintained prop- 22.25 Filing the transcript.
erly, or will be applied to process 22.26 Proposed findings, conclusions, and
wastes which are the same as described order.
in the application. The certification in Subpart E—Initial Decision and Motion to
no way constitutes a waiver by EPA or Reopen a Hearing
a State of its authority to take appro-
priate enforcement action against the 22.27 Initial decision.
owner or operator of such facilities for 22.28 Motion to reopen a hearing.
violations of an applicable standard.
Subpart F—Appeals and Administrative
Review
PART 22—CONSOLIDATED RULES
OF PRACTICE GOVERNING THE 22.29 Appeal from or review of interlocutory
ADMINISTRATIVE ASSESSMENT OF orders or rulings.
22.30 Appeal from or review of initial deci-
CIVIL PENALTIES AND THE REV- sion.
OCATION/TERMINATION OR SUS-
PENSION OF PERMITS Subpart G—Final Order
22.31 Final order.
Subpart A—General 22.32 Motion to reconsider a final order.
Sec.
Subpart H—Supplemental Rules
22.1 Scope of this part.
22.2 Use of number and gender. 22.33 [Reserved]
22.3 Definitions. 22.34 Supplemental rules governing the ad-
22.4 Powers and duties of the Environ- ministrative assessment of civil pen-
mental Appeals Board, Regional Judicial alties under the Clean Air Act.
Officer and Presiding Officer; disquali- 22.35 Supplemental rules governing the ad-
fication, withdrawal, and reassignment. ministrative assessment of civil pen-
22.5 Filing, service, and form of all filed alties under the Federal Insecticide, Fun-
documents; business confidentiality gicide, and Rodenticide Act.
claims. 22.36 [Reserved]
22.6 Filing and service of rulings, orders and 22.37 Supplemental rules governing admin-
decisions. istrative proceedings under the Solid
22.7 Computation and extension of time. Waste Disposal Act.
22.8 Ex parte discussion of proceeding. 22.38 Supplemental rules of practice gov-
22.9 Examination of documents filed. erning the administrative assessment of
222
civil penalties under the Clean Water (2) The assessment of any adminis-
Act. trative civil penalty under sections
22.39 Supplemental rules governing the ad- 113(d), 205(c), 211(d) and 213(d) of the
ministrative assessment of civil pen-
Clean Air Act, as amended (42 U.S.C.
alties under section 109 of the Com-
prehensive Environmental Response, 7413(d), 7524(c), 7545(d) and 7547(d));
Compensation, and Liability Act of 1980, (3) The assessment of any adminis-
as amended. trative civil penalty or for the revoca-
22.40 [Reserved] tion or suspension of any permit under
22.41 Supplemental rules governing the ad- section 105(a) and (f) of the Marine Pro-
ministrative assessment of civil pen- tection, Research, and Sanctuaries Act
alties under Title II of the Toxic Sub-
as amended (33 U.S.C. 1415(a) and (f));
stance Control Act, enacted as section 2
of the Asbestos Hazard Emergency Re- (4) The issuance of a compliance
sponse Act (AHERA). order or the issuance of a corrective ac-
22.42 Supplemental rules governing the ad- tion order, the termination of a permit
ministrative assessment of civil pen- pursuant to section 3008(a)(3), the sus-
alties for violations of compliance orders pension or revocation of authority to
issued to owners or operators of public operate pursuant to section 3005(e), or
water systems under part B of the Safe
the assessment of any civil penalty
Drinking Water Act.
22.43 Supplemental rules governing the ad- under sections 3008, 9006, and 11005 of
ministrative assessment of civil pen- the Solid Waste Disposal Act, as
alties against a federal agency under the amended (42 U.S.C. 6925(d), 6925(e), 6928,
Safe Drinking Water Act. 6991e, and 6992d)), except as provided in
22.44 Supplemental rules of practice gov- part 24 of this chapter;
erning the termination of permits under (5) The assessment of any adminis-
section 402(a) of the Clean Water Act or
trative civil penalty under sections
under section 3008(a)(3) of the Resource
Conservation and Recovery Act. 16(a) and 207 of the Toxic Substances
22.45 Supplemental rules governing public Control Act (15 U.S.C. 2615(a) and 2647);
notice and comment in proceedings (6) The assessment of any Class II
under sections 309(g) and 311(b)(6)(B)(ii) penalty under sections 309(g) and
of the Clean Water Act and section 311(b)(6), or termination of any permit
1423(c) of the Safe Drinking Water Act. issued pursuant to section 402(a) of the
22.46–22.49 [Reserved]
Clean Water Act, as amended (33 U.S.C.
Subpart I—Administrative Proceedings Not 1319(g), 1321(b)(6), and 1342(a));
Governed by Section 554 of the Ad- (7) The assessment of any adminis-
ministrative Procedure Act trative civil penalty under section 109
of the Comprehensive Environmental
22.50 Scope of this subpart. Response, Compensation, and Liability
22.51 Presiding Officer. Act of 1980, as amended (42 U.S.C. 9609);
22.52 Information exchange and discovery.
(8) The assessment of any adminis-
AUTHORITY: 7 U.S.C. 136(l); 15 U.S.C. 2615; 33 trative civil penalty under section 325
U.S.C. 1319, 1342, 1361, 1415 and 1418; 42 U.S.C. of the Emergency Planning and Com-
300g–3(g), 6912, 6925, 6928, 6991e and 6992d; 42 munity Right-To-Know Act of 1986
U.S.C. 7413(d), 7524(c), 7545(d), 7547, 7601 and (‘‘EPCRA’’) (42 U.S.C. 11045);
7607(a), 9609, and 11045.
(9) The assessment of any adminis-
SOURCE: 64 FR 40176, July 23, 1999, unless trative civil penalty under sections
otherwise noted. 1414(g)(3)(B), 1423(c), and 1447(b) of the
Safe Drinking Water Act as amended
Subpart A—General (42 U.S.C. 300g–3(g)(3)(B), 300h–2(c), and
300j–6(b)), or the issuance of any order
§ 22.1 Scope of this part. requiring both compliance and the as-
(a) These Consolidated Rules of Prac- sessment of an administrative civil
tice govern all administrative adju- penalty under section 1423(c);
dicatory proceedings for: (10) The assessment of any adminis-
(1) The assessment of any administrative civil penalty or the issuance of
trative civil penalty under section 14(a) any order requiring compliance under
of the Federal Insecticide, Fungicide, Section 5 of the Mercury-Containing
and Rodenticide Act as amended (7 and Rechargeable Battery Management
U.S.C. 136l(a)); Act (42 U.S.C. 14304).
223
§ 22.2 40 CFR Ch. I (7–1–00 Edition)
(b) The supplemental rules set forth 311(b)(6)(C) of the Clean Water Act or
in subparts H and I of this part estab- section 1423(c) of the Safe Drinking
lish special procedures for proceedings Water Act, whichever applies, and in-
identified in paragraph (a) of this sec- tends to participate in the proceeding;
tion where the Act allows or requires and
procedures different from the proce- (2) Provides the Regional Hearing
dures in subparts A through G of this Clerk with a return address.
part. Where inconsistencies exist be- Complainant means any person au-
tween subparts A through G of this thorized to issue a complaint in accord-
part and subpart H or I of this part, ance with §§ 22.13 and 22.14 on behalf of
subparts H or I of this part shall apply. the Agency to persons alleged to be in
(c) Questions arising at any stage of violation of the Act. The complainant
the proceeding which are not addressed shall not be a member of the Environ-
in these Consolidated Rules of Practice mental Appeals Board, the Regional
shall be resolved at the discretion of Judicial Officer or any other person
the Administrator, Environmental Ap- who will participate or advise in the
peals Board, Regional Administrator, adjudication.
or Presiding Officer, as provided for in Consolidated Rules of Practice means
these Consolidated Rules of Practice. the regulations in this part.
[64 FR 40176, July 23, 1999, as amended at 65 Environmental Appeals Board means
FR 30904, May 15, 2000] the Board within the Agency described
in 40 CFR 1.25.
§ 22.2 Use of number and gender. Final order means:
As used in these Consolidated Rules (1) An order issued by the Environ-
of Practice, words in the singular also mental Appeals Board or the Adminis-
include the plural and words in the trator after an appeal of an initial deci-
masculine gender also include the sion, accelerated decision, decision to
feminine, and vice versa, as the case dismiss, or default order, disposing of
may require. the matter in controversy between the
parties;
§ 22.3 Definitions. (2) An initial decision which becomes
(a) The following definitions apply to a final order under § 22.27(c); or
these Consolidated Rules of Practice: (3) A final order issued in accordance
Act means the particular statute au- with § 22.18.
thorizing the proceeding at issue. Hearing means an evidentiary hear-
Administrative Law Judge means an ing on the record, open to the public
Administrative Law Judge appointed (to the extent consistent with
under 5 U.S.C. 3105. § 22.22(a)(2)), conducted as part of a pro-
Administrator means the Adminis- ceeding under these Consolidated Rules
trator of the U.S. Environmental Pro- of Practice.
tection Agency or his delegate. Hearing Clerk means the Hearing
Agency means the United States En- Clerk, Mail Code 1900, U.S. Environ-
vironmental Protection Agency. mental Protection Agency, 401 M St.
Business confidentiality claim means a SW., Washington, DC 20460.
confidentiality claim as defined in 40 Initial decision means the decision
CFR 2.201(h). issued by the Presiding Officer pursu-
Clerk of the Board means the Clerk of ant to §§ 22.17(c), 22.20(b) or 22.27 resolv-
the Environmental Appeals Board, ing all outstanding issues in the pro-
Mail Code 1103B, U.S. Environmental ceeding.
Protection Agency, 401 M St. S.W., Party means any person that partici-
Washington, DC 20460. pates in a proceeding as complainant,
Commenter means any person (other respondent, or intervenor.
than a party) or representative of such Permit action means the revocation,
person who timely: suspension or termination of all or part
(1) Submits in writing to the Re- of a permit issued under section 102 of
gional Hearing Clerk that he is pro- the Marine Protection, Research, and
viding or intends to provide comments Sanctuaries Act (33 U.S.C. 1412) or ter-
on the proposed assessment of a pen- mination under section 402(a) of the
alty pursuant to sections 309(g)(4) and Clean Water Act (33 U.S.C. 1342(a)) or
224
section 3005(d) of the Solid Waste Dis- § 22.4 Powers and duties of the Envi-
posal Act (42 U.S.C. 6925(d)). ronmental Appeals Board, Regional
Person includes any individual, part- Judicial Officer and Presiding Offi-
nership, association, corporation, and cer; disqualification, withdrawal,
and reassignment.
any trustee, assignee, receiver or legal
successor thereof; any organized group (a) Environmental Appeals Board. (1)
of persons whether incorporated or not; The Environmental Appeals Board
and any officer, employee, agent, de- rules on appeals from the initial deci-
partment, agency or instrumentality of sions, rulings and orders of a Presiding
Officer in proceedings under these Con-
the Federal Government, of any State
solidated Rules of Practice; acts as
or local unit of government, or of any
Presiding Officer until the respondent
foreign government.
files an answer in proceedings under
Presiding Officer means an individual these Consolidated Rules of Practice
who presides in an administrative adju- commenced at EPA Headquarters; and
dication until an initial decision be- approves settlement of proceedings
comes final or is appealed. The Pre- under these Consolidated Rules of
siding Officer shall be an Administra- Practice commenced at EPA Head-
tive Law Judge, except where §§ 22.4(b), quarters. The Environmental Appeals
22.16(c) or 22.51 allow a Regional Judi- Board may refer any case or motion to
cial Officer to serve as Presiding Offi- the Administrator when the Environ-
cer. mental Appeals Board, in its discre-
Proceeding means the entirety of a tion, deems it appropriate to do so.
single administrative adjudication, When an appeal or motion is referred
from the filing of the complaint to the Administrator by the Environ-
through the issuance of a final order, mental Appeals Board, all parties shall
including any action on a motion to re- be so notified and references to the En-
consider under § 22.32. vironmental Appeals Board in these
Regional Administrator means, for a Consolidated Rules of Practice shall be
case initiated in an EPA Regional Of- interpreted as referring to the Admin-
istrator. If a case or motion is referred
fice, the Regional Administrator for
to the Administrator by the Environ-
that Region or any officer or employee
mental Appeals Board, the Adminis-
thereof to whom his authority is duly trator may consult with any EPA em-
delegated. ployee concerning the matter, provided
Regional Hearing Clerk means an indi- such consultation does not violate
vidual duly authorized to serve as hear- § 22.8. Motions directed to the Adminis-
ing clerk for a given region, who shall trator shall not be considered except
be neutral in every proceeding. Cor- for motions for disqualification pursu-
respondence with the Regional Hearing ant to paragraph (d) of this section, or
Clerk shall be addressed to the Re- motions filed in matters that the Envi-
gional Hearing Clerk at the address ronmental Appeals Board has referred
specified in the complaint. For a case to the Administrator.
initiated at EPA Headquarters, the (2) In exercising its duties and re-
term Regional Hearing Clerk means sponsibilities under these Consolidated
the Hearing Clerk. Rules of Practice, the Environmental
Regional Judicial Officer means a per- Appeals Board may do all acts and take
son designated by the Regional Admin- all measures as are necessary for the
istrator under § 22.4(b). efficient, fair and impartial adjudica-
Respondent means any person against tion of issues arising in a proceeding,
whom the complaint states a claim for including imposing procedural sanc-
relief. tions against a party who without ade-
quate justification fails or refuses to
(b) Terms defined in the Act and not
comply with these Consolidated Rules
defined in these Consolidated Rules of
of Practice or with an order of the En-
Practice are used consistent with the
vironmental Appeals Board. Such sanc-
meanings given in the Act.
tions may include drawing adverse in-
[64 FR 40176, July 23, 1999, as amended at 65 ferences against a party, striking a
FR 30904, May 15, 2000] party’s pleadings or other submissions
225
§ 22.4 40 CFR Ch. I (7–1–00 Edition)
from the record, and denying any or all (5) Order a party, or an officer or
relief sought by the party in the pro- agent thereof, to produce testimony,
ceeding. documents, or other non-privileged evi-
(b) Regional Judicial Officer. Each Re- dence, and failing the production there-
gional Administrator shall delegate to of without good cause being shown,
one or more Regional Judicial Officers draw adverse inferences against that
authority to act as Presiding Officer in party;
proceedings under subpart I of this (6) Admit or exclude evidence;
part, and to act as Presiding Officer (7) Hear and decide questions of facts,
until the respondent files an answer in law, or discretion;
proceedings under these Consolidated (8) Require parties to attend con-
Rules of Practice to which subpart I of ferences for the settlement or sim-
this part does not apply. The Regional plification of the issues, or the expedi-
Administrator may also delegate to tion of the proceedings;
one or more Regional Judicial Officers
(9) Issue subpoenas authorized by the
the authority to approve settlement of
Act; and
proceedings pursuant to § 22.18(b)(3).
(10) Do all other acts and take all
These delegations will not prevent a
Regional Judicial Officer from refer- measures necessary for the mainte-
ring any motion or case to the Re- nance of order and for the efficient, fair
gional Administrator. A Regional Judi- and impartial adjudication of issues
cial Officer shall be an attorney who is arising in proceedings governed by
a permanent or temporary employee of these Consolidated Rules of Practice.
the Agency or another Federal agency (d) Disqualification, withdrawal and re-
and who may perform other duties assignment. (1) The Administrator, the
within the Agency. A Regional Judicial Regional Administrator, the members
Officer shall not have performed pros- of the Environmental Appeals Board,
ecutorial or investigative functions in the Regional Judicial Officer, or the
connection with any case in which he Administrative Law Judge may not
serves as a Regional Judicial Officer. A perform functions provided for in these
Regional Judicial Officer shall not Consolidated Rules of Practice regard-
knowingly preside over a case involving any matter in which they have a fi-
ing any party concerning whom the Re- nancial interest or have any relation-
gional Judicial Officer performed any ship with a party or with the subject
functions of prosecution or investiga- matter which would make it inappro-
tion within the 2 years preceding the priate for them to act. Any party may
commencement of the case. A Regional at any time by motion to the Adminis-
Judicial Officer shall not prosecute en- trator, Regional Administrator, a
forcement cases and shall not be super- member of the Environmental Appeals
vised by any person who supervises the Board, the Regional Judicial Officer or
prosecution of enforcement cases, but the Administrative Law Judge request
may be supervised by the Regional that he or she disqualify himself or
Counsel. herself from the proceeding. If such a
(c) Presiding Officer. The Presiding Of- motion to disqualify the Regional Ad-
ficer shall conduct a fair and impartial ministrator, Regional Judicial Officer
proceeding, assure that the facts are or Administrative Law Judge is denied,
fully elicited, adjudicate all issues, and a party may appeal that ruling to the
avoid delay. The Presiding Officer may: Environmental Appeals Board. If a mo-
(1) Conduct administrative hearings tion to disqualify a member of the En-
under these Consolidated Rules of vironmental Appeals Board is denied, a
Practice; party may appeal that ruling to the
(2) Rule upon motions, requests, and Administrator. There shall be no inter-
offers of proof, and issue all necessary locutory appeal of the ruling on a mo-
orders; tion for disqualification. The Adminis-
(3) Administer oaths and affirmations trator, the Regional Administrator, a
and take affidavits; member of the Environmental Appeals
(4) Examine witnesses and receive Board, the Regional Judicial Officer, or
documentary or other evidence; the Administrative Law Judge may at
226
any time withdraw from any pro- to any appropriate conditions and limi-
ceeding in which he deems himself dis- tations.
qualified or unable to act for any rea- (2) When the Presiding Officer cor-
son. responds directly with the parties, the
(2) If the Administrator, the Regional original of the correspondence shall be
Administrator, the Regional Judicial filed with the Regional Hearing Clerk.
Officer, or the Administrative Law Parties who correspond directly with
Judge is disqualified or withdraws from the Presiding Officer shall file a copy
the proceeding, a qualified individual of the correspondence with the Re-
who has none of the infirmities listed gional Hearing Clerk.
in paragraph (d)(1) of this section shall (3) A certificate of service shall ac-
be assigned as a replacement. The Ad- company each document filed or served
ministrator shall assign a replacement in the proceeding.
for a Regional Administrator who (b) Service of documents. A copy of
withdraws or is disqualified. Should each document filed in the proceeding
the Administrator withdraw or be dis- shall be served on the Presiding Officer
qualified, the Regional Administrator or the Environmental Appeals Board,
from the Region where the case origi- and on each party.
nated shall replace the Administrator. (1) Service of complaint. (i) Complain-
If that Regional Administrator would ant shall serve on respondent, or a rep-
be disqualified, the Administrator shall resentative authorized to receive serv-
assign a Regional Administrator from ice on respondent’s behalf, a copy of
another Region to replace the Adminis- the signed original of the complaint,
trator. The Regional Administrator together with a copy of these Consoli-
shall assign a new Regional Judicial dated Rules of Practice. Service shall
Officer if the original Regional Judicial be made personally, by certified mail
Officer withdraws or is disqualified. with return receipt requested, or by
The Chief Administrative Law Judge any reliable commercial delivery serv-
shall assign a new Administrative Law ice that provides written verification
Judge if the original Administrative of delivery.
Law Judge withdraws or is disqualified. (ii)(A) Where respondent is a domes-
(3) The Chief Administrative Law tic or foreign corporation, a partner-
Judge, at any stage in the proceeding, ship, or an unincorporated association
may reassign the case to an Adminis- which is subject to suit under a com-
trative Law Judge other than the one mon name, complainant shall serve an
originally assigned in the event of the officer, partner, a managing or general
unavailability of the Administrative agent, or any other person authorized
Law Judge or where reassignment will by appointment or by Federal or State
result in efficiency in the scheduling of law to receive service of process.
hearings and would not prejudice the (B) Where respondent is an agency of
parties. the United States complainant shall
serve that agency as provided by that
§ 22.5 Filing, service, and form of all agency’s regulations, or in the absence
filed documents; business confiden- of controlling regulation, as otherwise
tiality claims.
permitted by law. Complainant should
(a) Filing of documents. (1) The origi- also provide a copy of the complaint to
nal and one copy of each document in- the senior executive official having re-
tended to be part of the record shall be sponsibility for the overall operations
filed with the Regional Hearing Clerk of the geographical unit where the al-
when the proceeding is before the Pre- leged violations arose. If the agency is
siding Officer, or filed with the Clerk of a corporation, the complaint shall be
the Board when the proceeding is be- served as prescribed in paragraph
fore the Environmental Appeals Board. (b)(1)(ii)(A) of this section.
A document is filed when it is received (C) Where respondent is a State or
by the appropriate Clerk. The Pre- local unit of government, agency, de-
siding Officer or the Environmental partment, corporation or other instru-
Appeals Board may by order authorize mentality, complainant shall serve the
facsimile or electronic filing, subject chief executive officer thereof, or as
227
§ 22.5 40 CFR Ch. I (7–1–00 Edition)
otherwise permitted by law. Where re- thereto, service to the party’s last
spondent is a State or local officer, known address shall satisfy the re-
complainant shall serve such officer. quirements of paragraph (b)(2) of this
(iii) Proof of service of the complaint section and § 22.6.
shall be made by affidavit of the person (5) The Environmental Appeals Board
making personal service, or by prop- or the Presiding Officer may exclude
erly executed receipt. Such proof of from the record any document which
service shall be filed with the Regional does not comply with this section.
Hearing Clerk immediately upon com- Written notice of such exclusion, stat-
pletion of service. ing the reasons therefor, shall be
(2) Service of filed documents other than promptly given to the person submit-
the complaint, rulings, orders, and deci- ting the document. Such person may
sions. All filed documents other than
amend and resubmit any excluded doc-
the complaint, rulings, orders, and de-
ument upon motion granted by the En-
cisions shall be served personally, by
vironmental Appeals Board or the Pre-
first class mail (including certified
siding Officer, as appropriate.
mail, return receipt requested, Over-
night Express and Priority Mail), or by (d) Confidentiality of business informa-
any reliable commercial delivery serv- tion. (1) A person who wishes to assert
ice. The Presiding Officer or the Envi- a business confidentiality claim with
ronmental Appeals Board may by order regard to any information contained in
authorize facsimile or electronic serv- any document to be filed in a pro-
ice, subject to any appropriate condi- ceeding under these Consolidated Rules
tions and limitations. of Practice shall assert such a claim in
(c) Form of documents. (1) Except as accordance with 40 CFR part 2 at the
provided in this section, or by order of time that the document is filed. A doc-
the Presiding Officer or of the Environ- ument filed without a claim of business
mental Appeals Board there are no spe- confidentiality shall be available to
cific requirements as to the form of the public for inspection and copying.
documents. (2) Two versions of any document
(2) The first page of every filed docu- which contains information claimed
ment shall contain a caption identi- confidential shall be filed with the Re-
fying the respondent and the docket gional Hearing Clerk:
number. All legal briefs and legal (i) One version of the document shall
memoranda greater than 20 pages in contain the information claimed con-
length (excluding attachments) shall fidential. The cover page shall include
contain a table of contents and a table the information required under para-
of authorities with page references. graph (c)(2) of this section and the
(3) The original of any filed docu-
words ‘‘Business Confidentiality As-
ment (other than exhibits) shall be
serted’’. The specific portion(s) alleged
signed by the party filing or by its at-
to be confidential shall be clearly iden-
torney or other representative. The
tified within the document.
signature constitutes a representation
by the signer that he has read the doc- (ii) A second version of the document
ument, that to the best of his knowl- shall contain all information except
edge, information and belief, the state- the specific information claimed con-
ments made therein are true, and that fidential, which shall be redacted and
it is not interposed for delay. replaced with notes indicating the na-
(4) The first document filed by any ture of the information redacted. The
person shall contain the name, address, cover page shall state that information
and telephone number of an individual claimed confidential has been deleted
authorized to receive service relating and that a complete copy of the docu-
to the proceeding. Parties shall ment containing the information
promptly file any changes in this infor- claimed confidential has been filed
mation with the Regional Hearing with the Regional Hearing Clerk.
Clerk, and serve copies on the Pre- (3) Both versions of the document
siding Officer and all parties to the shall be served on the Presiding Officer
proceeding. If a party fails to furnish and the complainant. Both versions of
such information and any changes the document shall be served on any
228
party, non-party participant, or rep- upon its own initiative. Any motion for
resentative thereof, authorized to re- an extension of time shall be filed suf-
ceive the information claimed con- ficiently in advance of the due date so
fidential by the person making the as to allow other parties reasonable op-
claim of confidentiality. Only the re- portunity to respond and to allow the
dacted version shall be served on per- Presiding Officer or Environmental Ap-
sons not authorized to receive the con- peals Board reasonable opportunity to
fidential information. issue an order.
(4) Only the second, redacted version (c) Service by mail or commercial deliv-
shall be treated as public information. ery service. Service of the complaint is
An EPA officer or employee may dis- complete when the return receipt is
close information claimed confidential signed. Service of all other documents
in accordance with paragraph (d)(1) of
is complete upon mailing or when
this section only as authorized under 40
placed in the custody of a reliable com-
CFR part 2.
mercial delivery service. Where a docu-
§ 22.6 Filing and service of rulings, or- ment is served by first class mail or
ders and decisions. commercial delivery service, but not
All rulings, orders, decisions, and by overnight or same-day delivery, 5
other documents issued by the Re- days shall be added to the time allowed
gional Administrator or Presiding Offi- by these Consolidated Rules of Practice
cer shall be filed with the Regional for the filing of a responsive document.
Hearing Clerk. All such documents
issued by the Environmental Appeals § 22.8 Ex parte discussion of pro-
ceeding.
Board shall be filed with the Clerk of
the Board. Copies of such rulings, or- At no time after the issuance of the
ders, decisions or other documents complaint shall the Administrator, the
shall be served personally, by first members of the Environmental Appeals
class mail (including by certified mail Board, the Regional Administrator, the
or return receipt requested, Overnight Presiding Officer or any other person
Express and Priority Mail), by EPA’s who is likely to advise these officials
internal mail, or any reliable commer- on any decision in the proceeding, dis-
cial delivery service, upon all parties cuss ex parte the merits of the pro-
by the Clerk of the Environmental Ap- ceeding with any interested person out-
peals Board, the Office of Administra- side the Agency, with any Agency staff
tive Law Judges or the Regional Hear- member who performs a prosecutorial
ing Clerk, as appropriate. or investigative function in such pro-
§ 22.7 Computation and extension of ceeding or a factually related pro-
time. ceeding, or with any representative of
such person. Any ex parte memorandum
(a) Computation. In computing any or other communication addressed to
period of time prescribed or allowed in
the Administrator, the Regional Ad-
these Consolidated Rules of Practice,
ministrator, the Environmental Ap-
except as otherwise provided, the day
peals Board, or the Presiding Officer
of the event from which the designated
period begins to run shall not be in- during the pendency of the proceeding
cluded. Saturdays, Sundays, and Fed- and relating to the merits thereof, by
eral holidays shall be included. When a or on behalf of any party shall be re-
stated time expires on a Saturday, garded as argument made in the pro-
Sunday or Federal holiday, the stated ceeding and shall be served upon all
time period shall be extended to in- other parties. The other parties shall
clude the next business day. be given an opportunity to reply to
(b) Extensions of time. The Environ- such memorandum or communication.
mental Appeals Board or the Presiding The requirements of this section shall
Officer may grant an extension of time not apply to any person who has for-
for filing any document: upon timely mally recused himself from all adju-
motion of a party to the proceeding, dicatory functions in a proceeding, or
for good cause shown, and after consid- who issues final orders only pursuant
eration of prejudice to other parties; or to § 22.18(b)(3).
229
§ 22.9 40 CFR Ch. I (7–1–00 Edition)
§ 22.9 Examination of documents filed. the Environmental Appeals Board for

good cause.
(a) Subject to the provisions of law (b) Non-party briefs. Any person who
restricting the public disclosure of con- is not a party to a proceeding may
fidential information, any person may, move for leave to file a non-party brief.
during Agency business hours inspect The motion shall identify the interest
and copy any document filed in any of the applicant and shall explain the
proceeding. Such documents shall be relevance of the brief to the pro-
made available by the Regional Hear- ceeding. All requirements of these Con-
ing Clerk, the Hearing Clerk, or the solidated Rules of Practice shall apply
Clerk of the Board, as appropriate. to the motion as if the movant were a
(b) The cost of duplicating documents party. If the motion is granted, the
shall be borne by the person seeking Presiding Officer or Environmental Ap-
copies of such documents. The Agency peals Board shall issue an order setting
may waive this cost in its discretion. the time for filing such brief. Any
party to the proceeding may file a re-
Subpart B—Parties and sponse to a non-party brief within 15
Appearances days after service of the non-party
brief.
§ 22.10 Appearances.
§ 22.12 Consolidation and severance.
Any party may appear in person or (a) Consolidation. The Presiding Offi-
by counsel or other representative. A cer or the Environmental Appeals
partner may appear on behalf of a part- Board may consolidate any or all mat-
nership and an officer may appear on ters at issue in two or more pro-
behalf of a corporation. Persons who ceedings subject to these Consolidated
appear as counsel or other representa- Rules of Practice where: there exist
tive must conform to the standards of common parties or common questions
conduct and ethics required of practi- of fact or law; consolidation would ex-
tioners before the courts of the United pedite and simplify consideration of
States. the issues; and consolidation would not
adversely affect the rights of parties
§ 22.11 Intervention and non-party engaged in otherwise separate pro-
briefs. ceedings. Proceedings subject to sub-
(a) Intervention. Any person desiring part I of this part may be consolidated
to become a party to a proceeding may only upon the approval of all parties.
move for leave to intervene. A motion Where a proceeding subject to the pro-
for leave to intervene that is filed after visions of subpart I of this part is con-
the exchange of information pursuant solidated with a proceeding to which
to § 22.19(a) shall not be granted unless subpart I of this part does not apply,
the movant shows good cause for its the procedures of subpart I of this part
failure to file before such exchange of shall not apply to the consolidated pro-
information. All requirements of these ceeding.
Consolidated Rules of Practice shall (b) Severance. The Presiding Officer
apply to a motion for leave to inter- or the Environmental Appeals Board
vene as if the movant were a party. may, for good cause, order any pro-
The Presiding Officer shall grant leave ceedings severed with respect to any or
to intervene in all or part of the pro- all parties or issues.
ceeding if: the movant claims an inter-
est relating to the cause of action; a Subpart C—Prehearing
final order may as a practical matter Procedures
impair the movant’s ability to protect
that interest; and the movant’s inter- § 22.13 Commencement of a pro-
est is not adequately represented by ceeding.
existing parties. The intervenor shall (a) Any proceeding subject to these
be bound by any agreements, arrange- Consolidated Rules of Practice is com-
ments and other matters previously menced by filing with the Regional
made in the proceeding unless other- Hearing Clerk a complaint conforming
wise ordered by the Presiding Officer or to § 22.14.
230
(b) Notwithstanding paragraph (a) of (c) Amendment of the complaint. The

this section, where the parties agree to complainant may amend the complaint
settlement of one or more causes of ac- once as a matter of right at any time
tion before the filing of a complaint, a before the answer is filed. Otherwise
proceeding may be simultaneously the complainant may amend the com-
commenced and concluded by the plaint only upon motion granted by the
issuance of a consent agreement and Presiding Officer. Respondent shall
final order pursuant to § 22.18(b)(2) and have 20 additional days from the date
(3). of service of the amended complaint to
file its answer.
§ 22.14 Complaint. (d) Withdrawal of the complaint. The
(a) Content of complaint. Each com- complainant may withdraw the com-
plaint shall include: plaint, or any part thereof, without
(1) A statement reciting the sec- prejudice one time before the answer
tion(s) of the Act authorizing the has been filed. After one withdrawal
issuance of the complaint; before the filing of an answer, or after
(2) Specific reference to each provi- the filing of an answer, the complain-
sion of the Act, implementing regula- ant may withdraw the complaint, or
tions, permit or order which respond- any part thereof, without prejudice
ent is alleged to have violated; only upon motion granted by the Pre-
(3) A concise statement of the factual siding Officer.
basis for each violation alleged;
(4) A description of all relief sought, § 22.15 Answer to the complaint.
including one or more of the following: (a) General. Where respondent: Con-
(i) The amount of the civil penalty tests any material fact upon which the
which is proposed to be assessed, and a complaint is based; contends that the
brief explanation of the proposed pen- proposed penalty, compliance or cor-
alty; rective action order, or Permit Action,
(ii) Where a specific penalty demand as the case may be, is inappropriate; or
is not made, the number of violations contends that it is entitled to judg-
(where applicable, days of violation) ment as a matter of law, it shall file an
for which a penalty is sought, a brief original and one copy of a written an-
explanation of the severity of each vio- swer to the complaint with the Re-
lation alleged and a recitation of the gional Hearing Clerk and shall serve
statutory penalty authority applicable copies of the answer on all other par-
for each violation alleged in the com- ties. Any such answer to the complaint
plaint; must be filed with the Regional Hear-
(iii) A request for a Permit Action ing Clerk within 30 days after service
and a statement of its proposed terms of the complaint.
and conditions; or (b) Contents of the answer. The answer
(iv) A request for a compliance or shall clearly and directly admit, deny
corrective action order and a state- or explain each of the factual allega-
ment of the terms and conditions tions contained in the complaint with
thereof; regard to which respondent has any
(5) Notice of respondent’s right to re- knowledge. Where respondent has no
quest a hearing on any material fact knowledge of a particular factual alle-
alleged in the complaint, or on the ap- gation and so states, the allegation is
propriateness of any proposed penalty, deemed denied. The answer shall also
compliance or corrective action order, state: The circumstances or arguments
or Permit Action; which are alleged to constitute the
(6) Notice if subpart I of this part ap- grounds of any defense; the facts which
plies to the proceeding; respondent disputes; the basis for op-
(7) The address of the Regional Hear- posing any proposed relief; and whether
ing Clerk; and a hearing is requested.
(8) Instructions for paying penalties, (c) Request for a hearing. A hearing
if applicable. upon the issues raised by the complaint
(b) Rules of practice. A copy of these and answer may be held if requested by
Consolidated Rules of Practice shall respondent in its answer. If the re-
accompany each complaint served. spondent does not request a hearing,
231
§ 22.16 40 CFR Ch. I (7–1–00 Edition)
the Presiding Officer may hold a hear- motions filed or made after an answer
ing if issues appropriate for adjudica- is filed and before an initial decision
tion are raised in the answer. has become final or has been appealed.
(d) Failure to admit, deny, or explain. The Environmental Appeals Board
Failure of respondent to admit, deny, shall rule as provided in § 22.29(c) and
or explain any material factual allega- on all motions filed or made after an
tion contained in the complaint con- appeal of the initial decision is filed,
stitutes an admission of the allegation. except as provided pursuant to § 22.28.
(e) Amendment of the answer. The re- (d) Oral argument. The Presiding Offi-
spondent may amend the answer to the cer or the Environmental Appeals
complaint upon motion granted by the Board may permit oral argument on
Presiding Officer. motions in its discretion.
§ 22.16 Motions. § 22.17 Default.
(a) General. Motions shall be served (a) Default. A party may be found to
as provided by § 22.5(b)(2). Upon the fil- be in default: after motion, upon fail-
ing of a motion, other parties may file ure to file a timely answer to the com-
responses to the motion and the mov- plaint; upon failure to comply with the
ant may file a reply to the response. information exchange requirements of
Any additional responsive documents § 22.19(a) or an order of the Presiding
shall be permitted only by order of the Officer; or upon failure to appear at a
Presiding Officer or Environmental Ap- conference or hearing. Default by re-
peals Board, as appropriate. All mo- spondent constitutes, for purposes of
tions, except those made orally on the the pending proceeding only, an admis-
record during a hearing, shall: sion of all facts alleged in the com-
(1) Be in writing; plaint and a waiver of respondent’s
(2) State the grounds therefor, with right to contest such factual allega-
particularity; tions. Default by complainant con-
(3) Set forth the relief sought; and stitutes a waiver of complainant’s
(4) Be accompanied by any affidavit, right to proceed on the merits of the
certificate, other evidence or legal action, and shall result in the dismissal
memorandum relied upon. of the complaint with prejudice.
(b) Response to motions. A party’s re- (b) Motion for default. A motion for
sponse to any written motion must be default may seek resolution of all or
filed within 15 days after service of part of the proceeding. Where the mo-
such motion. The movant’s reply to tion requests the assessment of a pen-
any written response must be filed alty or the imposition of other relief
within 10 days after service of such re- against a defaulting party, the movant
sponse and shall be limited to issues must specify the penalty or other relief
raised in the response. The Presiding sought and state the legal and factual
Officer or the Environmental Appeals grounds for the relief requested.
Board may set a shorter or longer time (c) Default order. When the Presiding
for response or reply, or make other or- Officer finds that default has occurred,
ders concerning the disposition of mo- he shall issue a default order against
tions. The response or reply shall be the defaulting party as to any or all
accompanied by any affidavit, certifi- parts of the proceeding unless the
cate, other evidence, or legal memo- record shows good cause why a default
randum relied upon. Any party who order should not be issued. If the order
fails to respond within the designated resolves all outstanding issues and
period waives any objection to the claims in the proceeding, it shall con-
granting of the motion. stitute the initial decision under these
(c) Decision. The Regional Judicial Consolidated Rules of Practice. The re-
Officer (or in a proceeding commenced lief proposed in the complaint or the
at EPA Headquarters, the Environ- motion for default shall be ordered un-
mental Appeals Board) shall rule on all less the requested relief is clearly in-
motions filed or made before an answer consistent with the record of the pro-
to the complaint is filed. Except as proceeding or the Act. For good cause
vided in §§ 22.29(c) and 22.51, an Admin- shown, the Presiding Officer may set
istrative Law Judge shall rule on all aside a default order.
232
(d) Payment of penalty; effective date of plaint may subject the respondent to
compliance or corrective action orders, default pursuant to § 22.17.
and Permit Actions. Any penalty as- (3) Upon receipt of payment in full,
sessed in the default order shall be- the Regional Judicial Officer or Re-
come due and payable by respondent gional Administrator, or, in a pro-
without further proceedings 30 days ceeding commenced at EPA Head-
after the default order becomes final quarters, the Environmental Appeals
under § 22.27(c). Any default order re- Board, shall issue a final order. Pay-
quiring compliance or corrective ac- ment by respondent shall constitute a
tion shall be effective and enforceable waiver of respondent’s rights to con-
without further proceedings on the test the allegations and to appeal the
date the default order becomes final final order.
under § 22.27(c). Any Permit Action or- (b) Settlement. (1) The Agency encour-
dered in the default order shall become ages settlement of a proceeding at any
effective without further proceedings time if the settlement is consistent
on the date that the default order be- with the provisions and objectives of
comes final under § 22.27(c). the Act and applicable regulations. The
parties may engage in settlement dis-
§ 22.18 Quick resolution; settlement; cussions whether or not the respondent
alternative dispute resolution. requests a hearing. Settlement discus-
(a) Quick resolution. (1) A respondent sions shall not affect the respondent’s
may resolve the proceeding at any time obligation to file a timely answer
by paying the specific penalty proposed under § 22.15.
in the complaint or in complainant’s (2) Consent agreement. Any and all
prehearing exchange in full as specified terms and conditions of a settlement
by complainant and by filing with the shall be recorded in a written consent
Regional Hearing Clerk a copy of the agreement signed by all parties or
check or other instrument of payment. their representatives. The consent
If the complaint contains a specific agreement shall state that, for the pur-
proposed penalty and respondent pays pose of the proceeding, respondent: Ad-
that proposed penalty in full within 30 mits the jurisdictional allegations of
days after receiving the complaint, the complaint; admits the facts stipu-
then no answer need be filed. This lated in the consent agreement or nei-
paragraph (a) shall not apply to any ther admits nor denies specific factual
complaint which seeks a compliance or allegations contained in the complaint;
corrective action order or Permit Ac- consents to the assessment of any stat-
tion. In a proceeding subject to the ed civil penalty, to the issuance of any
public comment provisions of § 22.45, specified compliance or corrective ac-
this quick resolution is not available tion order, to any conditions specified
until 10 days after the close of the com- in the consent agreement, and to any
ment period. stated Permit Action; and waives any
(2) Any respondent who wishes to re- right to contest the allegations and its
solve a proceeding by paying the pro- right to appeal the proposed final order
posed penalty instead of filing an an- accompanying the consent agreement.
swer, but who needs additional time to Where complainant elects to com-
pay the penalty, may file a written mence a proceeding pursuant to
statement with the Regional Hearing § 22.13(b), the consent agreement shall
Clerk within 30 days after receiving the also contain the elements described at
complaint stating that the respondent § 22.14(a)(1)-(3) and (8). The parties shall
agrees to pay the proposed penalty in forward the executed consent agree-
accordance with paragraph (a)(1) of ment and a proposed final order to the
this section. The written statement Regional Judicial Officer or Regional
need not contain any response to, or Administrator, or, in a proceeding
admission of, the allegations in the commenced at EPA Headquarters, the
complaint. Within 60 days after receiv- Environmental Appeals Board.
ing the complaint, the respondent shall (3) Conclusion of proceeding. No settle-
pay the full amount of the proposed ment or consent agreement shall dis-
penalty. Failure to make such payment pose of any proceeding under these
within 60 days of receipt of the com- Consolidated Rules of Practice without
233
§ 22.19 40 CFR Ch. I (7–1–00 Edition)
a final order from the Regional Judi- § 22.19 Prehearing information ex-
cial Officer or Regional Administrator, change; prehearing conference;
or, in a proceeding commenced at EPA other discovery.
Headquarters, the Environmental Ap- (a) Prehearing information exchange.
peals Board, ratifying the parties’ con- (1) In accordance with an order issued
sent agreement. by the Presiding Officer, each party
(c) Scope of resolution or settlement. shall file a prehearing information ex-
Full payment of the penalty proposed change. Except as provided in § 22.22(a),
in a complaint pursuant to paragraph a document or exhibit that has not
(a) of this section or settlement pursu- been included in prehearing informa-
ant to paragraph (b) of this section tion exchange shall not be admitted
shall not in any case affect the right of into evidence, and any witness whose
the Agency or the United States to name and testimony summary has not
pursue appropriate injunctive or other been included in prehearing informa-
equitable relief or criminal sanctions tion exchange shall not be allowed to
for any violations of law. Full payment testify. Parties are not required to ex-
of the penalty proposed in a complaint change information relating to settle-
pursuant to paragraph (a) of this sec- ment which would be excluded in the
tion or settlement pursuant to para- federal courts under Rule 408 of the
graph (b) of this section shall only re- Federal Rules of Evidence. Documents
solve respondent’s liability for Federal and exhibits shall be marked for identi-
civil penalties for the violations and fication as ordered by the Presiding Of-
facts alleged in the complaint. ficer.
(d) Alternative means of dispute resolu- (2) Each party’s prehearing informa-
tion. (1) The parties may engage in any tion exchange shall contain:
process within the scope of the Alter- (i) The names of any expert or other
native Dispute Resolution Act witnesses it intends to call at the hear-
(‘‘ADRA’’), 5 U.S.C. 581 et seq., which ing, together with a brief narrative
may facilitate voluntary settlement ef- summary of their expected testimony,
forts. Such process shall be subject to or a statement that no witnesses will
the confidentiality provisions of the be called; and (ii) Copies of all docu-
ADRA. ments and exhibits which it intends to
(2) Dispute resolution under this introduce into evidence at the hearing.
paragraph (d) does not divest the Pre- (3) If the proceeding is for the assess-
siding Officer of jurisdiction and does ment of a penalty and complainant has
not automatically stay the proceeding. already specified a proposed penalty,
All provisions of these Consolidated complainant shall explain in its pre-
Rules of Practice remain in effect not- hearing information exchange how the
withstanding any dispute resolution proposed penalty was calculated in ac-
proceeding. cordance with any criteria set forth in
(3) The parties may choose any per- the Act, and the respondent shall ex-
son to act as a neutral, or may move plain in its prehearing information ex-
for the appointment of a neutral. If the change why the proposed penalty
Presiding Officer grants a motion for should be reduced or eliminated.
the appointment of a neutral, the Pre- (4) If the proceeding is for the assess-
siding Officer shall forward the motion ment of a penalty and complainant has
to the Chief Administrative Law not specified a proposed penalty, each
Judge, except in proceedings under sub- party shall include in its prehearing in-
part I of this part, in which the Pre- formation exchange all factual infor-
siding Officer shall forward the motion mation it considers relevant to the as-
to the Regional Administrator. The sessment of a penalty. Within 15 days
Chief Administrative Law Judge or Re- after respondent files its prehearing in-
gional Administrator, as appropriate, formation exchange, complainant shall
shall designate a qualified neutral. file a document specifying a proposed
234
penalty and explaining how the pro- The Presiding Officer may order such
posed penalty was calculated in accord- other discovery only if it:
ance with any criteria set forth in the (i) Will neither unreasonably delay
Act. the proceeding nor unreasonably bur-
(b) Prehearing conference. The Pre- den the non-moving party;
siding Officer, at any time before the (ii) Seeks information that is most
hearing begins, may direct the parties reasonably obtained from the non-mov-
and their counsel or other representa- ing party, and which the non-moving
tives to participate in a conference to party has refused to provide volun-
consider: tarily; and
(1) Settlement of the case; (iii) Seeks information that has sig-
(2) Simplification of issues and stipu- nificant probative value on a disputed
lation of facts not in dispute; issue of material fact relevant to li-
(3) The necessity or desirability of ability or the relief sought.
amendments to pleadings; (2) Settlement positions and informa-
(4) The exchange of exhibits, docu- tion regarding their development (such
ments, prepared testimony, and admis- as penalty calculations for purposes of
sions or stipulations of fact which will settlement based upon Agency settle-
avoid unnecessary proof; ment policies) shall not be discover-
(5) The limitation of the number of able.
expert or other witnesses; (3) The Presiding Officer may order
(6) The time and place for the hear- depositions upon oral questions only in
ing; and accordance with paragraph (e)(1) of this
(7) Any other matters which may ex- section and upon an additional finding
pedite the disposition of the pro- that:
ceeding. (i) The information sought cannot
(c) Record of the prehearing conference. reasonably be obtained by alternative
No transcript of a prehearing con- methods of discovery; or
ference relating to settlement shall be (ii) There is a substantial reason to
made. With respect to other prehearing believe that relevant and probative evi-
conferences, no transcript of any pre- dence may otherwise not be preserved
hearing conferences shall be made un- for presentation by a witness at the
less ordered by the Presiding Officer. hearing.
The Presiding Officer shall ensure that (4) The Presiding Officer may require
the record of the proceeding includes the attendance of witnesses or the pro-
any stipulations, agreements, rulings duction of documentary evidence by
or orders made during the conference. subpoena, if authorized under the Act.
(d) Location of prehearing conference. The Presiding Officer may issue a sub-
The prehearing conference shall be poena for discovery purposes only in
held in the county where the respond- accordance with paragraph (e)(1) of this
ent resides or conducts the business section and upon an additional showing
which the hearing concerns, in the city of the grounds and necessity therefor.
in which the relevant Environmental Subpoenas shall be served in accord-
Protection Agency Regional Office is ance with § 22.5(b)(1). Witnesses sum-
located, or in Washington, DC, unless moned before the Presiding Officer
the Presiding Officer determines that shall be paid the same fees and mileage
there is good cause to hold it at an- that are paid witnesses in the courts of
other location or by telephone. the United States. Any fees shall be
(e) Other discovery. (1) After the infor- paid by the party at whose request the
mation exchange provided for in para- witness appears. Where a witness ap-
graph (a) of this section, a party may pears pursuant to a request initiated
move for additional discovery. The mo- by the Presiding Officer, fees shall be
tion shall specify the method of dis- paid by the Agency.
covery sought, provide the proposed (5) Nothing in this paragraph (e) shall
discovery instruments, and describe in limit a party’s right to request admis-
detail the nature of the information sions or stipulations, a respondent’s
and/or documents sought (and, where right to request Agency records under
relevant, the proposed time and place the Federal Freedom of Information
where discovery would be conducted). Act, 5 U.S.C. 552, or EPA’s authority
235
§ 22.20 40 CFR Ch. I (7–1–00 Edition)
under any applicable law to conduct in- (2) If an accelerated decision or a de-
spections, issue information request cision to dismiss is rendered on less
letters or administrative subpoenas, or than all issues or claims in the pro-
otherwise obtain information. ceeding, the Presiding Officer shall de-
(f) Supplementing prior exchanges. A termine what material facts exist with-
party who has made an information ex- out substantial controversy and what
change under paragraph (a) of this sec- material facts remain controverted.
tion, or who has exchanged informa- The partial accelerated decision or the
tion in response to a request for infor- order dismissing certain counts shall
mation or a discovery order pursuant specify the facts which appear substan-
to paragraph (e) of this section, shall tially uncontroverted, and the issues
promptly supplement or correct the ex-
and claims upon which the hearing will
change when the party learns that the
proceed.
information exchanged or response pro-
vided is incomplete, inaccurate or out-
dated, and the additional or corrective Subpart D—Hearing Procedures
information has not otherwise been
disclosed to the other party pursuant § 22.21 Assignment of Presiding Offi-
to this section. cer; scheduling the hearing.
(g) Failure to exchange information. (a) Assignment of Presiding Officer.
Where a party fails to provide informa- When an answer is filed, the Regional
tion within its control as required pur- Hearing Clerk shall forward a copy of
suant to this section, the Presiding Of- the complaint, the answer, and any
ficer may, in his discretion: other documents filed in the pro-
(1) Infer that the information would ceeding to the Chief Administrative
be adverse to the party failing to pro- Law Judge who shall serve as Presiding
vide it; Officer or assign another Administra-
(2) Exclude the information from evi- tive Law Judge as Presiding Officer.
dence; or
The Presiding Officer shall then obtain
(3) Issue a default order under
the case file from the Chief Adminis-
§ 22.17(c).
trative Law Judge and notify the par-
§ 22.20 Accelerated decision; decision ties of his assignment.
to dismiss. (b) Notice of hearing. The Presiding
(a) General. The Presiding Officer Officer shall hold a hearing if the pro-
may at any time render an accelerated ceeding presents genuine issues of ma-
decision in favor of a party as to any or terial fact. The Presiding Officer shall
all parts of the proceeding, without serve upon the parties a notice of hear-
further hearing or upon such limited ing setting forth a time and place for
additional evidence, such as affidavits, the hearing not later than 30 days prior
as he may require, if no genuine issue to the date set for the hearing. The
of material fact exists and a party is Presiding Officer may require the at-
entitled to judgment as a matter of tendance of witnesses or the produc-
law. The Presiding Officer, upon motion of documentary evidence by sub-
tion of the respondent, may at any poena, if authorized under the Act,
time dismiss a proceeding without fur- upon a showing of the grounds and ne-
ther hearing or upon such limited addi- cessity therefor, and the materiality
tional evidence as he requires, on the and relevancy of the evidence to be ad-
basis of failure to establish a prima duced.
facie case or other grounds which show (c) Postponement of hearing. No re-
no right to relief on the part of the
quest for postponement of a hearing
complainant.
shall be granted except upon motion
(b) Effect. (1) If an accelerated deci-
sion or a decision to dismiss is issued and for good cause shown.
as to all issues and claims in the pro- (d) Location of the hearing. The loca-
ceeding, the decision constitutes an tion of the hearing shall be determined
initial decision of the Presiding Offi- in accordance with the method for de-
cer, and shall be filed with the Re- termining the location of a prehearing
gional Hearing Clerk. conference under § 22.19(d).
236
§ 22.22 Evidence. (c) Written testimony. The Presiding

(a) General. (1) The Presiding Officer Officer may admit and insert into the
shall admit all evidence which is not record as evidence, in lieu of oral testi-
irrelevant, immaterial, unduly repeti- mony, written testimony prepared by a
tious, unreliable, or of little probative witness. The admissibility of any part
value, except that evidence relating to of the testimony shall be subject to the
settlement which would be excluded in same rules as if the testimony were
the federal courts under Rule 408 of the produced under oral examination. Be-
Federal Rules of Evidence (28 U.S.C.) is fore any such testimony is read or ad-
not admissible. If, however, a party mitted into evidence, the party who
fails to provide any document, exhibit, has called the witness shall deliver a
witness name or summary of expected copy of the testimony to the Presiding
testimony required to be exchanged Officer, the reporter, and opposing
under § 22.19 (a), (e) or (f) to all parties counsel. The witness presenting the
at least 15 days before the hearing testimony shall swear to or affirm the
date, the Presiding Officer shall not testimony and shall be subject to ap-
admit the document, exhibit or testi- propriate oral cross-examination.
mony into evidence, unless the non-ex- (d) Admission of affidavits where the
changing party had good cause for fail- witness is unavailable. The Presiding Of-
ing to exchange the required informa- ficer may admit into evidence affida-
tion and provided the required informa- vits of witnesses who are unavailable.
tion to all other parties as soon as it The term ‘‘unavailable’’ shall have the
had control of the information, or had meaning accorded to it by Rule 804(a)
good cause for not doing so. of the Federal Rules of Evidence.
(2) In the presentation, admission, (e) Exhibits. Where practicable, an
disposition, and use of oral and written original and one copy of each exhibit
evidence, EPA officers, employees and shall be filed with the Presiding Officer
authorized representatives shall pre- for the record and a copy shall be fur-
serve the confidentiality of informa- nished to each party. A true copy of
tion claimed confidential, whether or any exhibit may be substituted for the
not the claim is made by a party to the original.
proceeding, unless disclosure is author- (f) Official notice. Official notice may
ized pursuant to 40 CFR part 2. A busi- be taken of any matter which can be
ness confidentiality claim shall not judicially noticed in the Federal courts
prevent information from being intro- and of other facts within the special-
duced into evidence, but shall instead ized knowledge and experience of the
require that the information be treated Agency. Opposing parties shall be given
in accordance with 40 CFR part 2, sub- adequate opportunity to show that
part B. The Presiding Officer or the En- such facts are erroneously noticed.
vironmental Appeals Board may con-
sider such evidence in a proceeding § 22.23 Objections and offers of proof.
closed to the public, and which may be (a) Objection. Any objection con-
before some, but not all, parties, as cerning the conduct of the hearing may
necessary. Such proceeding shall be be stated orally or in writing during
closed only to the extent necessary to the hearing. The party raising the ob-
comply with 40 CFR part 2, subpart B, jection must supply a short statement
for information claimed confidential. of its grounds. The ruling by the Pre-
Any affected person may move for an siding Officer on any objection and the
order protecting the information reasons given for it shall be part of the
claimed confidential. record. An exception to each objection
(b) Examination of witnesses. Wit- overruled shall be automatic and is not
nesses shall be examined orally, under waived by further participation in the
oath or affirmation, except as other- hearing.
wise provided in paragraphs (c) and (d) (b) Offers of proof. Whenever the Pre-
of this section or by the Presiding Offi- siding Officer denies a motion for ad-
cer. Parties shall have the right to mission into evidence, the party offer-
cross-examine a witness who appears at ing the information may make an offer
the hearing provided that such cross- of proof, which shall be included in the
examination is not unduly repetitious. record. The offer of proof for excluded
237
§ 22.24 40 CFR Ch. I (7–1–00 Edition)
oral testimony shall consist of a brief the actual testimony within 30 days
statement describing the nature of the after receipt of the transcript, or 45
information excluded. The offer of days after the parties are notified of
proof for excluded documents or exhib- the availability of the transcript,
its shall consist of the documents or whichever is sooner.
exhibits excluded. Where the Environ-
mental Appeals Board decides that the § 22.26 Proposed findings, conclusions,
ruling of the Presiding Officer in ex- and order.
cluding the information from evidence After the hearing, any party may file
was both erroneous and prejudicial, the proposed findings of fact, conclusions
hearing may be reopened to permit the of law, and a proposed order, together
taking of such evidence. with briefs in support thereof. The Pre-
siding Officer shall set a schedule for
§ 22.24 Burden of presentation; burden filing these documents and any reply
of persuasion; preponderance of the
evidence standard. briefs, but shall not require them be-
fore the last date for filing motions
(a) The complainant has the burdens under § 22.25 to conform the transcript
of presentation and persuasion that the to the actual testimony. All submis-
violation occurred as set forth in the sions shall be in writing, shall be
complaint and that the relief sought is served upon all parties, and shall con-
appropriate. Following complainant’s tain adequate references to the record
establishment of a prima facie case, re- and authorities relied on.
spondent shall have the burden of pre-
senting any defense to the allegations
set forth in the complaint and any re- Subpart E—Initial Decision and
sponse or evidence with respect to the Motion To Reopen a Hearing
appropriate relief. The respondent has
the burdens of presentation and persua- § 22.27 Initial Decision.
sion for any affirmative defenses. (a) Filing and contents. After the pe-
(b) Each matter of controversy shall riod for filing briefs under § 22.26 has
be decided by the Presiding Officer expired, the Presiding Officer shall
upon a preponderance of the evidence. issue an initial decision. The initial de-
cision shall contain findings of fact,
§ 22.25 Filing the transcript. conclusions regarding all material
The hearing shall be transcribed ver- issues of law or discretion, as well as
batim. Promptly following the taking reasons therefor, and, if appropriate, a
of the last evidence, the reporter shall recommended civil penalty assessment,
transmit to the Regional Hearing Clerk compliance order, corrective action
the original and as many copies of the order, or Permit Action. Upon receipt
transcript of testimony as are called of an initial decision, the Regional
for in the reporter’s contract with the Hearing Clerk shall forward copies of
Agency, and also shall transmit to the the initial decision to the Environ-
Presiding Officer a copy of the tran- mental Appeals Board and the Assist-
script. A certificate of service shall ac- ant Administrator for the Office of En-
company each copy of the transcript. forcement and Compliance Assurance.
The Regional Hearing Clerk shall no- (b) Amount of civil penalty. If the Pre-
tify all parties of the availability of siding Officer determines that a viola-
the transcript and shall furnish the tion has occurred and the complaint
parties with a copy of the transcript seeks a civil penalty, the Presiding Of-
upon payment of the cost of reproduc- ficer shall determine the amount of the
tion, unless a party can show that the recommended civil penalty based on
cost is unduly burdensome. Any person the evidence in the record and in ac-
not a party to the proceeding may re- cordance with any penalty criteria set
ceive a copy of the transcript upon forth in the Act. The Presiding Officer
payment of the reproduction fee, ex- shall consider any civil penalty guide-
cept for those parts of the transcript lines issued under the Act. The Pre-
ordered to be kept confidential by the siding Officer shall explain in detail in
Presiding Officer. Any party may file a the initial decision how the penalty to
motion to conform the transcript to be assessed corresponds to any penalty
238
criteria set forth in the Act. If the Pre- (b) Disposition of motion to reopen a
siding Officer decides to assess a pen- hearing. Within 15 days following the
alty different in amount from the pen- service of a motion to reopen a hear-
alty proposed by complainant, the Pre- ing, any other party to the proceeding
siding Officer shall set forth in the ini- may file with the Regional Hearing
tial decision the specific reasons for Clerk and serve on all other parties a
the increase or decrease. If the re- response. A reopened hearing shall be
spondent has defaulted, the Presiding governed by the applicable sections of
Officer shall not assess a penalty great- these Consolidated Rules of Practice.
er than that proposed by complainant The filing of a motion to reopen a hear-
in the complaint, the prehearing infor- ing shall automatically stay the run-
mation exchange or the motion for de- ning of the time periods for an initial
fault, whichever is less. decision becoming final under § 22.27(c)
(c) Effect of initial decision. The initial and for appeal under § 22.30. These time
decision of the Presiding Officer shall periods shall begin again in full when
become a final order 45 days after its the motion is denied or an amended
service upon the parties and without initial decision is served.
further proceedings unless:
(1) A party moves to reopen the hear- Subpart F—Appeals and
ing; Administrative Review
(2) A party appeals the initial deci-
sion to the Environmental Appeals § 22.29 Appeal from or review of inter-
Board; locutory orders or rulings.
(3) A party moves to set aside a de- (a) Request for interlocutory appeal.
fault order that constitutes an initial Appeals from orders or rulings other
decision; or than an initial decision shall be al-
(4) The Environmental Appeals Board lowed only at the discretion of the En-
elects to review the initial decision on vironmental Appeals Board. A party
its own initiative. seeking interlocutory appeal of such
(d) Exhaustion of administrative rem- orders or rulings to the Environmental
edies. Where a respondent fails to ap- Appeals Board shall file a motion with-
peal an initial decision to the Environ- in 10 days of service of the order or rul-
mental Appeals Board pursuant to ing, requesting that the Presiding Offi-
§ 22.30 and that initial decision becomes cer forward the order or ruling to the
a final order pursuant to paragraph (c) Environmental Appeals Board for re-
of this section, respondent waives its view, and stating briefly the grounds
rights to judicial review. An initial de- for the appeal.
cision that is appealed to the Environ- (b) Availability of interlocutory appeal.
mental Appeals Board shall not be final The Presiding Officer may recommend
or operative pending the Environ- any order or ruling for review by the
mental Appeals Board’s issuance of a Environmental Appeals Board when:
final order. (1) The order or ruling involves an
important question of law or policy
§ 22.28 Motion to reopen a hearing. concerning which there is substantial
(a) Filing and content. A motion to re- grounds for difference of opinion; and
open a hearing to take further evidence (2) Either an immediate appeal from
must be filed no later than 20 days the order or ruling will materially ad-
after service of the initial decision and vance the ultimate termination of the
shall state the specific grounds upon proceeding, or review after the final
which relief is sought. Where the mov- order is issued will be inadequate or in-
ant seeks to introduce new evidence, effective.
the motion shall: state briefly the na- (c) Interlocutory review. If the Pre-
ture and purpose of the evidence to be siding Officer has recommended review
adduced; show that such evidence is and the Environmental Appeals Board
not cumulative; and show good cause determines that interlocutory review is
why such evidence was not adduced at inappropriate, or takes no action with-
the hearing. The motion shall be made in 30 days of the Presiding Officer’s rec-
to the Presiding Officer and filed with ommendation, the appeal is dismissed.
the Regional Hearing Clerk. When the Presiding Officer declines to
239
§ 22.30 40 CFR Ch. I (7–1–00 Edition)
recommend review of an order or rul- party or non-party participant may file

ing, it may be reviewed by the Environ- with the Environmental Appeals Board
mental Appeals Board only upon appeal an original and one copy of a response
from the initial decision, except when brief responding to argument raised by
the Environmental Appeals Board de- the appellant, together with reference
termines, upon motion of a party and to the relevant portions of the record,
in exceptional circumstances, that to initial decision, or opposing brief. Ap-
delay review would be contrary to the pellee shall simultaneously serve one
public interest. Such motion shall be copy of the response brief upon each
filed within 10 days of service of an party , non-party participant, and the
order of the Presiding Officer refusing Regional Hearing Clerk. Response
to recommend such order or ruling for briefs shall be limited to the scope of
interlocutory review. the appeal brief. Further briefs may be
filed only with the permission of the
§ 22.30 Appeal from or review of initial Environmental Appeals Board.
decision. (b) Review initiated by the Environ-
(a) Notice of appeal. (1) Within 30 days mental Appeals Board. Whenever the En-
after the initial decision is served, any vironmental Appeals Board determines
party may appeal any adverse order or to review an initial decision on its own
ruling of the Presiding Officer by filing initiative, it shall file notice of its in-
an original and one copy of a notice of tent to review that decision with the
appeal and an accompanying appellate Clerk of the Board, and serve it upon
brief with the Environmental Appeals the Regional Hearing Clerk, the Pre-
Board (Clerk of the Board (Mail Code siding Officer and the parties within 45
1103B), United States Environmental days after the initial decision was
Protection Agency, 401 M Street, SW, served upon the parties. The notice
Washington, DC, 20460. Hand deliveries shall include a statement of issues to
may be made at Suite 500, 607 14th be briefed by the parties and a time
Street, NW.). One copy of any docu- schedule for the filing and service of
ment filed with the Clerk of the Board briefs.
shall also be served on the Regional (c) Scope of appeal or review. The par-
Hearing Clerk. Appellant also shall ties’ rights of appeal shall be limited to
serve a copy of the notice of appeal those issues raised during the course of
upon the Presiding Officer. Appellant the proceeding and by the initial deci-
shall simultaneously serve one copy of sion, and to issues concerning subject
the notice and brief upon all other par- matter jurisdiction. If the Environ-
ties and non-party participants. The mental Appeals Board determines that
notice of appeal shall summarize the issues raised, but not appealed by the
order or ruling, or part thereof, ap- parties, should be argued, it shall give
pealed from. The appellant’s brief shall the parties reasonable written notice of
contain tables of contents and authori- such determination to permit prepara-
ties (with page references), a statement tion of adequate argument. The Envi-
of the issues presented for review, a ronmental Appeals Board may remand
statement of the nature of the case and the case to the Presiding Officer for
the facts relevant to the issues pre- further proceedings.
sented for review (with appropriate ref- (d) Argument before the Environmental
erences to the record), argument on the Appeals Board. The Environmental Ap-
issues presented, a short conclusion peals Board may, at its discretion,
stating the precise relief sought, alter- order oral argument on any or all
native findings of fact, and alternative issues in a proceeding.
conclusions regarding issues of law or (e) Motions on appeal. All motions
discretion. If a timely notice of appeal made during the course of an appeal
is filed by a party, any other party shall conform to § 22.16 unless other-
may file a notice of appeal on any issue wise provided.
within 20 days after the date on which (f) Decision. The Environmental Ap-
the first notice of appeal was served. peals Board shall adopt, modify, or set
(2) Within 20 days of service of no- aside the findings of fact and conclu-
tices of appeal and briefs under para- sions of law or discretion contained in
graph (a)(1) of this section, any other the decision or order being reviewed,
240
and shall set forth in the final order check or other instrument of payment
the reasons for its actions. The Envi- on the Regional Hearing Clerk and on
ronmental Appeals Board may assess a complainant. Collection of interest on
penalty that is higher or lower than overdue payments shall be in accord-
the amount recommended to be as- ance with the Debt Collection Act, 31
sessed in the decision or order being re- U.S.C. 3717.
viewed or from the amount sought in (d) Other relief. Any final order re-
the complaint, except that if the order quiring compliance or corrective ac-
being reviewed is a default order, the tion, or a Permit Action, shall become
Environmental Appeals Board may not effective and enforceable without fur-
increase the amount of the penalty ther proceedings on the effective date
above that proposed in the complaint of the final order unless otherwise or-
or in the motion for default, whichever dered.
is less. The Environmental Appeals (e) Final orders to Federal agencies on
Board may adopt, modify or set aside appeal. (1) A final order of the Environ-
any recommended compliance or cor- mental Appeals Board issued pursuant
rective action order or Permit Action. to § 22.30 to a department, agency, or
The Environmental Appeals Board may instrumentality of the United States
remand the case to the Presiding Offi- shall become effective 30 days after its
cer for further action. service upon the parties unless the
head of the affected department, agen-
Subpart G—Final Order cy, or instrumentality requests a con-
ference with the Administrator in writ-
§ 22.31 Final order. ing and serves a copy of the request on
(a) Effect of final order. A final order the parties of record within 30 days of
constitutes the final Agency action in service of the final order. If a timely
a proceeding. The final order shall not request is made, a decision by the Ad-
in any case affect the right of the ministrator shall become the final
Agency or the United States to pursue order.
appropriate injunctive or other equi- (2) A motion for reconsideration pur-
table relief or criminal sanctions for suant to § 22.32 shall not toll the 30-day
any violations of law. The final order period described in paragraph (e)(1) of
shall resolve only those causes of ac- this section unless specifically so or-
tion alleged in the complaint, or for dered by the Environmental Appeals
proceedings commenced pursuant to Board.
§ 22.13(b), alleged in the consent agree-
ment. The final order does not waive, § 22.32 Motion to reconsider a final
extinguish or otherwise affect respond- order.
ent’s obligation to comply with all ap- Motions to reconsider a final order
plicable provisions of the Act and regu- issued pursuant to § 22.30 shall be filed
lations promulgated thereunder. within 10 days after service of the final
(b) Effective date. A final order is ef- order. Motions must set forth the mat-
fective upon filing. Where an initial de- ters claimed to have been erroneously
cision becomes a final order pursuant decided and the nature of the alleged
to § 22.27(c), the final order is effective errors. Motions for reconsideration
45 days after the initial decision is under this provision shall be directed
served on the parties. to, and decided by, the Environmental
(c) Payment of a civil penalty. The re- Appeals Board. Motions for reconsider-
spondent shall pay the full amount of ation directed to the Administrator,
any civil penalty assessed in the final rather than to the Environmental Ap-
order within 30 days after the effective peals Board, will not be considered, ex-
date of the final order unless otherwise cept in cases that the Environmental
ordered. Payment shall be made by Appeals Board has referred to the Ad-
sending a cashier’s check or certified ministrator pursuant to § 22.4(a) and in
check to the payee specified in the which the Administrator has issued the
complaint, unless otherwise instructed final order. A motion for reconsider-
by the complainant. The check shall ation shall not stay the effective date
note the case title and docket number. of the final order unless so ordered by
Respondent shall serve copies of the the Environmental Appeals Board.
241
§ 22.33 40 CFR Ch. I (7–1–00 Edition)
Subpart H—Supplemental Rules § 22.36 [Reserved]
§ 22.33 [Reserved] § 22.37 Supplemental rules governing

administrative proceedings under
§ 22.34 Supplemental rules governing the Solid Waste Disposal Act.
the administrative assessment of (a) Scope. This section shall apply, in
civil penalties under the Clean Air conjunction with §§ 22.1 through 22.32,
Act.
in administrative proceedings under
(a) Scope. This section shall apply, in sections 3005(d) and (e), 3008, 9003 and
conjunction with §§ 22.1 through 22.32, 9006 of the Solid Waste Disposal Act (42
in administrative proceedings to assess U.S.C. 6925(d) and (e), 6928, 6991b and
a civil penalty conducted under sec- 6991e) (‘‘SWDA’’). Where inconsist-
tions 113(d), 205(c), 211(d), and 213(d) of encies exist between this section and
the Clean Air Act, as amended (42 §§ 22.1 through 22.32, this section shall
U.S.C. 7413(d), 7524(c), 7545(d), and apply.
7547(d)). Where inconsistencies exist be- (b) Corrective action and compliance or-
tween this section and §§ 22.1 through ders. A complaint may contain a com-
22.32, this section shall apply. pliance order issued under section
(b) Issuance of notice. Prior to the 3008(a) or section 9006(a), or a correc-
issuance of a final order assessing a tive action order issued under section
civil penalty, the person to whom the 3008(h) or section 9003(h)(4) of the
order is to be issued shall be given SWDA. Any such order shall automati-
written notice of the proposed issuance cally become a final order unless, no
of the order. Service of a complaint or later than 30 days after the order is
a consent agreement and final order served, the respondent requests a hear-
pursuant to § 22.13 satisfies this notice ing pursuant to § 22.15.
requirement.
§ 22.38 Supplemental rules of practice
§ 22.35 Supplemental rules governing governing the administrative as-
the administrative assessment of sessment of civil penalties under
civil penalties under the Federal In- the Clean Water Act.
secticide, Fungicide, and (a) Scope. This section shall apply, in
Rodenticide Act. conjunction with §§ 22.1 through 22.32
(a) Scope. This section shall apply, in and § 22.45, in administrative pro-
conjunction with §§ 22.1 through 22.32, ceedings for the assessment of any civil
in administrative proceedings to assess penalty under section 309(g) or section
a civil penalty conducted under section 311(b)(6) of the Clean Water Act
14(a) of the Federal Insecticide, Fun- (‘‘CWA’’)(33 U.S.C. 1319(g) and
gicide, and Rodenticide Act as amend- 1321(b)(6)). Where inconsistencies exist
ed (7 U.S.C. 136l(a)). Where inconsist- between this section and §§ 22.1 through
encies exist between this section and 22.32, this section shall apply.
§§ 22.1 through 22.32, this section shall (b) Consultation with States. For pro-
apply. ceedings pursuant to section 309(g), the
(b) Venue. The prehearing conference complainant shall provide the State
and the hearing shall be held in the agency with the most direct authority
county, parish, or incorporated city of over the matters at issue in the case an
the residence of the person charged, opportunity to consult with the com-
unless otherwise agreed in writing by plainant. Complainant shall notify the
all parties. For a person whose resi- State agency within 30 days following
dence is outside the United States and proof of service of the complaint on the
outside any territory or possession of respondent or, in the case of a pro-
the United States, the prehearing con- ceeding proposed to be commenced pur-
ference and the hearing shall be held at suant to § 22.13(b), no less than 40 days
the EPA office listed at 40 CFR 1.7 that before the issuance of an order assess-
is closest to either the person’s pri- ing a civil penalty.
mary place of business within the (c) Administrative procedure and judi-
United States, or the primary place of cial review. Action of the Administrator
business of the person’s U.S. agent, un- for which review could have been ob-
less otherwise agreed by all parties. tained under section 509(b)(1) of the
242
CWA, 33 U.S.C. 1369(b)(1), shall not be § 22.40 [Reserved]

subject to review in an administrative
proceeding for the assessment of a civil § 22.41 Supplemental rules governing
penalty under section 309(g) or section the administrative assessment of
civil penalties under Title II of the
311(b)(6). Toxic Substance Control Act, en-
acted as section 2 of the Asbestos
§ 22.39 Supplemental rules governing Hazard Emergency Response Act
the administrative assessment of (AHERA).
civil penalties under section 109 of
the Comprehensive Environmental (a) Scope. This section shall apply, in
Response, Compensation, and Li- conjunction with §§ 22.1 through 22.32,
ability Act of 1980, as amended. in administrative proceedings to assess
a civil penalty conducted under section
(a) Scope. This section shall apply, in 207 of the Toxic Substances Control
conjunction with §§ 22.10 through 22.32, Act (‘‘TSCA’’) (15 U.S.C. 2647). Where
in administrative proceedings for the inconsistencies exist between this sec-
assessment of any civil penalty under tion and §§ 22.1 through 22.32, this sec-
section 109 of the Comprehensive Envi- tion shall apply.
ronmental Response, Compensation, (b) Collection of civil penalty. Any civil
and Liability Act of 1980, as amended penalty collected under TSCA section
(42 U.S.C. 9609). Where inconsistencies 207 shall be used by the local edu-
exist between this section and §§ 22.1 cational agency for purposes of com-
through 22.32, this section shall apply. plying with Title II of TSCA. Any por-
(b) Judicial review. Any person who re- tion of a civil penalty remaining
quested a hearing with respect to a unspent after a local educational agen-
Class II civil penalty under section cy achieves compliance shall be depos-
109(b) of CERCLA, 42 U.S.C. 9609(b), and ited into the Asbestos Trust Fund es-
who is the recipient of a final order as- tablished under section 5 of AHERA.
sessing a civil penalty may file a peti-
§ 22.42 Supplemental rules governing
tion for judicial review of such order the administrative assessment of
with the United States Court of Ap- civil penalties for violations of com-
peals for the District of Columbia or pliance orders issued to owners or
for any other circuit in which such per- operators of public water systems
son resides or transacts business. Any under part B of the Safe Drinking
Water Act.
person who requested a hearing with
respect to a Class I civil penalty under (a) Scope. This section shall apply, in
section 109(a)(4) of CERCLA, 42 U.S.C. conjunction with §§ 22.1 through 22.32,
9609(a)(4), and who is the recipient of a in administrative proceedings to assess
final order assessing the civil penalty a civil penalty under section
may file a petition for judicial review 1414(g)(3)(B) of the Safe Drinking Water
of such order with the appropriate dis- Act, 42 U.S.C. 300g-3(g)(3)(B). Where in-
trict court of the United States. All pe- consistencies exist between this sec-
tion and §§ 22.1 through 22.32, this sec-
titions must be filed within 30 days of
tion shall apply.
the date the order making the assess-
(b) Choice of forum. A complaint
ment was served on the parties. which specifies that subpart I of this
(c) Payment of civil penalty assessed. part applies shall also state that re-
Payment of civil penalties assessed in spondent has a right to elect a hearing
the final order shall be made by for- on the record in accordance with 5
warding a cashier’s check, payable to U.S.C. 554, and that respondent waives
the ‘‘EPA, Hazardous Substances this right unless it requests in its an-
Superfund,’’ in the amount assessed, swer a hearing on the record in accord-
and noting the case title and docket ance with 5 U.S.C. 554. Upon such re-
number, to the appropriate regional quest, the Regional Hearing Clerk shall
Superfund Lockbox Depository. recaption the documents in the record
243
§ 22.43 40 CFR Ch. I (7–1–00 Edition)
as necessary, and notify the parties of proceedings for the termination of per-
the changes. mits under section 402(a) of the Clean
Water Act or under section 3008(a)(3) of
§ 22.43 Supplemental rules governing the Resource Conservation and Recov-
the administrative assessment of ery Act. Notwithstanding the Consoli-
civil penalties against a federal
agency under the Safe Drinking dated Rules of Practice, these supple-
Water Act. mental rules shall govern with respect
to the termination of such permits.
(a) Scope. This section shall apply, in (b) In any proceeding to terminate a
conjunction with §§ 22.1 through 22.32, permit for cause under § 122.64 or § 270.43
in administrative proceedings to assess of this chapter during the term of the
a civil penalty against a federal agency permit:
under section 1447(b) of the Safe Drink- (1) The complaint shall, in addition
ing Water Act, 42 U.S.C. 300j-6(b). to the requirements of § 22.14(b), con-
Where inconsistencies exist between tain any additional information speci-
this section and §§ 22.1 through 22.32, fied in § 124.8 of this chapter;
this section shall apply. (2) The Director (as defined in § 124.2
(b) Effective date of final penalty order. of this chapter) shall provide public no-
Any penalty order issued pursuant to tice of the complaint in accordance
this section and section 1447(b) of the with § 124.10 of this chapter, and allow
Safe Drinking Water Act shall become for public comment in accordance with
effective 30 days after it has been § 124.11 of this chapter; and
served on the parties. (3) The Presiding Officer shall admit
(c) Public notice of final penalty order. into evidence the contents of the Ad-
Upon the issuance of a final penalty ministrative Record described in § 124.9
order under this section, the Adminis- of this chapter, and any public com-
trator shall provide public notice of the ments received.
order by publication, and by providing
notice to any person who requests such [65 FR 30904, May 15, 2000]
notice. The notice shall include:
(1) The docket number of the order; § 22.45 Supplemental rules governing
(2) The address and phone number of public notice and comment in pro-
ceedings under sections 309(g) and
the Regional Hearing Clerk from whom 311(b)(6)(B)(ii) of the Clean Water
a copy of the order may be obtained; Act and section 1423(c) of the Safe
(3) The location of the facility where Drinking Water Act.
violations were found;
(a) Scope. This section shall apply, in
(4) A description of the violations;
conjunction with §§ 22.1 through 22.32,
(5) The penalty that was assessed;
in administrative proceedings for the
and
assessment of any civil penalty under
(6) A notice that any interested per-
sections 309(g) and 311(b)(6)(B)(ii) of the
son may, within 30 days of the date the
Clean Water Act (33 U.S.C. 1319(g) and
order becomes final, obtain judicial re-
1321(b)(6)(B)(ii)), and under section
view of the penalty order pursuant to
1423(c) of the Safe Drinking Water Act
section 1447(b) of the Safe Drinking
(42 U.S.C. 300h-2(c)). Where inconsist-
Water Act, and instruction that per-
encies exist between this section and
sons seeking judicial review shall pro-
§§ 22.1 through 22.32, this section shall
vide copies of any appeal to the persons
apply.
described in 40 CFR 135.11(a).
(b) Public notice.—(1) General. Com-
§ 22.44 Supplemental rules of practice plainant shall notify the public before
governing the termination of per- assessing a civil penalty. Such notice
mits under section 402(a) of the shall be provided within 30 days fol-
Clean Water Act or under section lowing proof of service of the com-
3008(a)(3) of the Resource Con- plaint on the respondent or, in the case
servation and Recovery Act. of a proceeding proposed to be com-
(a) Scope of this subpart. The supple- menced pursuant to § 22.13(b), no less
mental rules of practice in this subpart than 40 days before the issuance of an
shall also apply in conjunction with order assessing a civil penalty. The no-
the Consolidated Rules of Practice in tice period begins upon first publica-
this part and with the administrative tion of notice.
244
(2) Type and content of public notice. (and qualifications if an expert), and
The complainant shall provide public the subject matter of the testimony.
notice of the complaint (or the pro- (v) In any hearing on the merits, a
posed consent agreement if § 22.13(b) is commenter may present evidence, in-
applicable) by a method reasonably cluding direct testimony subject to
calculated to provide notice, and shall cross examination by the parties.
also provide notice directly to any per- (vi) The Presiding Officer shall have
son who requests such notice. The no- the discretion to establish the extent
tice shall include: of commenter participation in any
(i) The docket number of the pro-
other scheduled activity.
ceeding;
(ii) The name and address of the com- (2) Limitations. A commenter may not
plainant and respondent, and the per- cross-examine any witness in any hear-
son from whom information on the pro- ing and shall not be subject to or par-
ceeding may be obtained, and the ad- ticipate in any discovery or prehearing
dress of the Regional Hearing Clerk to exchange.
whom appropriate comments shall be (3) Quick resolution and settlement. No
directed; proceeding subject to the public notice
(iii) The location of the site or facil- and comment provisions of paragraphs
ity from which the violations are al- (b) and (c) of this section may be re-
leged, and any applicable permit num- solved or settled under § 22.18, or com-
ber; menced under § 22.13(b), until 10 days
(iv) A description of the violation al- after the close of the comment period
leged and the relief sought; and provided in paragraph (c)(1) of this sec-
(v) A notice that persons shall sub- tion.
mit comments to the Regional Hearing (4) Petition to set aside a consent agree-
Clerk, and the deadline for such sub- ment and proposed final order. (i) Com-
missions. plainant shall provide to each com-
(c) Comment by a person who is not a menter, by certified mail, return re-
party. The following provisions apply in
ceipt requested, but not to the Re-
regard to comment by a person not a
gional Hearing Clerk or Presiding Offi-
party to a proceeding:
(1) Participation in proceeding. (i) Any cer, a copy of any consent agreement
person wishing to participate in the between the parties and the proposed
proceedings must notify the Regional final order.
Hearing Clerk in writing within the (ii) Within 30 days of receipt of the
public notice period under paragraph consent agreement and proposed final
(b)(1) of this section. The person must order a commenter may petition the
provide his name, complete mailing ad- Regional Administrator (or, for cases
dress, and state that he wishes to par- commenced at EPA Headquarters, the
ticipate in the proceeding. Environmental Appeals Board), to set
(ii) The Presiding Officer shall pro- aside the consent agreement and pro-
vide notice of any hearing on the mer- posed final order on the basis that ma-
its to any person who has met the re- terial evidence was not considered.
quirements of paragraph (c)(1)(i) of this Copies of the petition shall be served
section at least 20 days prior to the on the parties, but shall not be sent to
scheduled hearing. the Regional Hearing Clerk or the Pre-
(iii) A commenter may present writ- siding Officer.
ten comments for the record at any (iii) Within 15 days of receipt of a pe-
time prior to the close of the record. tition, the complainant may, with no-
(iv) A commenter wishing to present tice to the Regional Administrator or
evidence at a hearing on the merits
Environmental Appeals Board and to
shall notify, in writing, the Presiding
the commenter, withdraw the consent
Officer and the parties of its intent at
least 10 days prior to the scheduled agreement and proposed final order to
hearing. This notice must include a consider the matters raised in the peti-
copy of any document to be introduced, tion. If the complainant does not give
a description of the evidence to be pre- notice of withdrawal within 15 days of
sented, and the identity of any witness receipt of the petition, the Regional
245
§§ 22.46–22.49 40 CFR Ch. I (7–1–00 Edition)
Administrator or Environmental Ap- a properly signed consent agreement

peals Board shall assign a Petition Of- are filed with the Regional Hearing
ficer to consider and rule on the peti- Clerk, unless further petition for re-
tion. The Petition Officer shall be an- view is filed by a notice of appeal in
other Presiding Officer, not otherwise the appropriate United States District
involved in the case. Notice of this as- Court, with coincident notice by cer-
signment shall be sent to the parties, tified mail to the Administrator and
and to the Presiding Officer. the Attorney General. Written notice
(iv) Within 30 days of assignment of of appeal also shall be filed with the
the Petition Officer, the complainant Regional Hearing Clerk, and sent to
shall present to the Petition Officer a the Presiding Officer and the parties.
copy of the complaint and a written re- (ix) If judicial review of the final
sponse to the petition. A copy of the order is denied, the final order shall be-
response shall be provided to the par- come effective 30 days after such denial
ties and to the commenter, but not to has been filed with the Regional Hear-
the Regional Hearing Clerk or Pre- ing Clerk.
siding Officer.
(v) The Petition Officer shall review §§ 22.46–22.49 [Reserved]
the petition, and complainant’s re-
sponse, and shall file with the Regional
Hearing Clerk, with copies to the par-
Subpart I—Administrative Pro-
ties, the commenter, and the Presiding ceedings Not Governed by
Officer, written findings as to: Section 554 of the Administra-
(A) The extent to which the petition tive Procedure Act
states an issue relevant and material
to the issuance of the proposed final § 22.50 Scope of this subpart.
order; (a) Scope. This subpart applies to all
(B) Whether complainant adequately adjudicatory proceedings for:
considered and responded to the peti- (1) The assessment of a penalty under
tion; and sections 309(g)(2)(A) and 311(b)(6)(B)(i)
(C) Whether a resolution of the proof the Clean Water Act (33 U.S.C.
ceeding by the parties is appropriate 1319(g)(2)(A) and 1321(b)(6)(B)(i)).
without a hearing. (2) The assessment of a penalty under
(vi) Upon a finding by the Petition sections 1414(g)(3)(B) and 1423(c) of the
Officer that a hearing is appropriate, Safe Drinking Water Act (42 U.S.C.
the Presiding Officer shall order that 300g–3(g)(3)(B) and 300h–2(c)), except
the consent agreement and proposed where a respondent in a proceeding
final order be set aside and shall estab- under section 1414(g)(3)(B) requests in
lish a schedule for a hearing.
its answer a hearing on the record in
(vii) Upon a finding by the Petition
accordance with section 554 of the Ad-
Officer that a resolution of the pro-
ministrative Procedure Act, 5 U.S.C.
ceeding without a hearing is appro-
554.
priate, the Petition Officer shall issue
an order denying the petition and stat- (b) Relationship to other provisions.
ing reasons for the denial. The Petition Sections 22.1 through 22.45 apply to
Officer shall: proceedings under this subpart, except
(A) File the order with the Regional for the following provisions which do
Hearing Clerk; not apply: §§ 22.11, 22.16(c), 22.21(a), and
(B) Serve copies of the order on the 22.29. Where inconsistencies exist be-
parties and the commenter; and tween this subpart and subparts A
(C) Provide public notice of the through G of this part, this subpart
order. shall apply. Where inconsistencies
(viii) Upon a finding by the Petition exist between this subpart and subpart
Officer that a resolution of the pro- H of this part, subpart H shall apply.
ceeding without a hearing is appro-
§ 22.51 Presiding Officer.
priate, the Regional Administrator
may issue the proposed final order, The Presiding Officer shall be a Re-
which shall become final 30 days after gional Judicial Officer. The Presiding
both the order denying the petition and Officer shall conduct the hearing, and
246
rule on all motions until an initial de- SOURCE: 50 FR 7270, Feb. 21, 1985, unless
cision has become final or has been ap- otherwise noted.
pealed.
§ 22.52 Information exchange and dis- As used in this part, the term:
covery.
(a) Federal Register document means a
Respondent’s information exchange document intended for publication in
pursuant to § 22.19(a) shall include in- the Federal Register and bearing in its
formation on any economic benefit re- heading an identification code includ-
sulting from any activity or failure to ing the letters FRL.
act which is alleged in the administra- (b) Admininstrator means the Admin-
tive complaint to be a violation of ap- istrator or any official exercising au-
plicable law, including its gross reve- thority delegated by the Adminis-
nues, delayed or avoided costs. Dis- trator.
covery under § 22.19(e) shall not be au-
(c) General Counsel means the General
thorized, except for discovery of infor-
Counsel of EPA or any official exer-
mation concerning respondent’s eco-
cising authority delegated by the Gen-
nomic benefit from alleged violations
eral Counsel.
and information concerning respond-
ent’s ability to pay a penalty. [50 FR 7270, Feb. 21, 1985, as amended at 53
FR 29322, Aug. 3, 1988]
PART 23—JUDICIAL REVIEW UNDER
§ 23.2 Timing of Administrator’s action
EPA—ADMINISTERED STATUTES under Clean Water Act.
Sec. Unless the Administrator otherwise
23.1 Definitions. explicity provides in a particular pro-
23.2 Timing of Administrator’s action under mulgation or approval action, the time
Clean Water Act. and date of the Administrator’s action
23.3 Timing of Administrator’s action under in promulgation (for purposes of sec-
Clean Air Act.
tions 509(b)(1) (A), (C), and (E)), approv-
23.4 Timing of Administrator’s action under
Resource Conservation and Recovery ing (for purposes of section
Act. 509(b)(1)(E)), making a determination
23.5 Timing of Administrator’s action under (for purposes of section 509(b)(1) (B) and
Toxic Substances Control Act. (D), and issuing or denying (for pur-
23.6 Timing of Administrator’s action under poses of section 509(b)(1)(F)) shall be at
Federal Insecticide, Fungicide and 1:00 p.m. eastern time (standard or day-
Rodenticide Act. light, as appropriate) on (a) for a FED-
23.7 Timing of Administrator’s action under
ERAL REGISTER document, the date
Safe Drinking Water Act.
23.8 Timing of Administrator’s action under that is two weeks after the date when
Uranium Mill Tailings Radiation Control the document is published in the FED-
Act of 1978. ERAL REGISTER, or (b) for any other
23.9 Timing of Administrator’s action under document, two weeks after it is signed.
the Atomic Energy Act.
23.10 Timing of Administrator’s action § 23.3 Timing of Administrator’s action
under the Federal Food, Drug, and Cos- under Clean Air Act.
metic Act.
23.11 Holidays. Unless the Administrator otherwise
23.12 Filing notice of judicial review. explicitly provides in a particular pro-
AUTHORITY: Clean Water Act, 33 U.S.C. mulgation, approval, or action, the
1361(a), 1369(b); Clean Air Act, 42 U.S.C. time and date of such promulgation,
7601(a)(1), 7607(b); Resource, Conservation approval or action for purposes of the
and Recovery Act, 42 U.S.C. 6912(a), 6976; second sentence of section 307(b)(1)
Toxic Substances Control Act, 15 U.S.C. 2618; shall be at 1:00 p.m. eastern time
Federal Insecticide, Fungicide, and (standard or daylight, as appropriate)
Rodenticide Act, 7 U.S.C. 136n(b), 136w(a);
on (a) for a FEDERAL REGISTER docu-
Safe Drinking Water Act, 42 U.S.C. 300j–
7(a)(2), 300j–9(a); Atomic Energy Act, 42 ment, the date when the document is
U.S.C. 2201, 2239; Federal Food, Drug, and published in the FEDERAL REGISTER, or
Cosmetic Act, 21 U.S.C. 371(a), 346a, 348; 28 (b) for any other document, two weeks
U.S.C. 2112(a), 2343, 2344. after it is signed.
247
§ 23.4 40 CFR Ch. I (7–1–00 Edition)
§ 23.4 Timing of Administrator’s action shall be at 1:00 p.m. eastern time

under Resource Conservation and (standard or daylight, as appropriate)
Recovery Act. on the date that is (a) for a FEDERAL
Unless the Administrator otherwise REGISTER document, two weeks after
explicitly provides in taking a par- the date when the document is pub-
ticular action, for purposes of section lished in the FEDERAL REGISTER or (b)
7006(b), the time and date of the Ad- for any other document, two weeks
ministrator’s action in issuing, deny- after it is signed.
ing, modifying, or revoking any permit
under section 3005, or in granting, de- § 23.8 Timing of Administrator’s action
under Uranium Mill Tailings Radi-
nying, or withdrawing authorization or ation Control Act of 1978.
interim authorization under section
3006, shall be at 1:00 p.m. eastern time Unless the Administrator otherwise
(standard or daylight, as appropriate) explicitly provides in a particular rule,
on the date that is (a) for a FEDERAL the time and date of the Administra-
REGISTER document, two weeks after tor’s promulgation for purposes of 42
the date when the document is pub- U.S.C. 2022(c)(2) shall be at 1:00 p.m.
lished in the FEDERAL REGISTER, or (b) eastern time (standard or daylight, as
for any other document, two weeks appropriate) on the date that is two
after it is signed. weeks after the date when notice of
promulgation is published in the FED-
§ 23.5 Timing of Administrator’s action ERAL REGISTER.
under Toxic Substances Control
Act. § 23.9 Timing of Administrator’s action
under the Atomic Energy Act.
Unless the Administrator otherwise
explicitly provides in promulgating a Unless the Administrator otherwise
particular rule or issuing a particular explicitly provides in a particular
order, the time and date of the Admin- order, the time and date of the entry of
istrator’s promulgation or issuance for an order for purposes of 28 U.S.C. 2344
purposes of section 19(a)(1) shall be at shall be at 1:00 p.m. eastern time
1:00 p.m. eastern time (standard or day- (standard or daylight, as appropriate)
light, as appropriate) on the date that on the date that is two weeks after the
is (a) for a FEDERAL REGISTER docu- date when notice thereof is published
ment, two weeks after the date when in the FEDERAL REGISTER.
the document is published in the FED-
ERAL REGISTER, or (b) for any other
§ 23.10 Timing of Administrator’s ac-
tion under the Federal Food, Drug,
document, two weeks after it is signed. and Cosmetic Act.
§ 23.6 Timing of Administrator’s action Unless the Administrator otherwise
under Federal Insecticide, Fun- explicitly provides in a particular
gicide and Rodenticide Act. order, the time and date of the entry of
Unless the Administrator otherwise an order issued after a public hearing
explicitly provides in a particular for purposes of 21 U.S.C. 346a(i) or
order, the time and date of entry of an 348(g) shall be at 1:00 p.m. eastern time
order issued by the Administrator fol- (standard or daylight, as appropriate)
lowing a public hearing for purposes of on the date that is (a) for a FEDERAL
section 16(b) shall be at 1:00 p.m. east- REGISTER document, two weeks after
ern time (standard or daylight, as ap- the date when the document is pub-
propriate) on the date that is two lished in the FEDERAL REGISTER, or (b)
weeks after it is signed. for any other document, two weeks
after it is signed.
§ 23.7 Timing of Administrator’s action
under Safe Drinking Water Act. § 23.11 Holidays.
Unless the Administrator otherwise If the date determined under §§ 23.2 to
explicitly provides in a particular pro- 23.10 falls on a Federal holiday, then
mulgation action or determination, the the time and date of the Administra-
time and date of the Administrator’s tor’s action shall be at 1:00 p.m. east-
promulgation, issuance, or determina- ern time on the next day that is not a
tion for purposes of section 1448(a)(2) Federal holiday.
248
§ 23.12 Filing notice of judicial review. 24.06 Designation of Presiding Officer.

24.07 Informal settlement conference.
(a) For the purposes of 28 U.S.C. 24.08 Selection of appropriate hearing pro-
2112(a), a copy of any petition filed in cedures.
any United States Court of Appeals
challenging a final action of the Ad- Subpart B—Hearings on Orders Requiring
ministrator shall be sent by certified Investigations or Studies
mail, return receipt requested, or by 24.09 Qualifications of Presiding Officer; ex
personal delivery to the General Coun- parte discussion of the proceeding.
sel. The petition copy shall be time- 24.10 Scheduling the hearing; pre-hearing
stamped by the Clerk of the Court submissions by respondent.
when the original is filed with the 24.11 Hearing; oral presentations and writ-
Court. The petition should be addressed ten submissions by the parties.
to: Correspondence Control Unit, Office 24.12 Summary of hearing; Presiding Offi-
cer’s recommendation.
of General Counsel (LE–130), U.S. Envi-
ronmental Protection Agency, 401 M Subpart C—Hearings on Orders Requiring
Street SW., Washington, DC 20460. Corrective Measures
(b) If the General Counsel receives
two or more petitions filed in two or 24.13 Qualifications of Presiding Officer; ex
more United States Courts of Appeals parte discussion of the proceeding.
24.14 Scheduling the hearing; pre-hearing
for review of any Agency action within
submissions by the parties.
ten days of the effective date of that 24.15 Hearing; oral presentations and writ-
action for purposes of judicial review ten submissions by the parties.
(as specified under §§ 23.2 through 23.10 24.16 Transcript or recording of hearing.
of this part), the General Counsel will 24.17 Presiding Officer’s recommendation.
notify the United States Judicial Panel
of Multidistrict Litigation of any peti- Subpart D—Post-Hearing Procedures
tions that were received within the ten 24.18 Final decision.
day period, in accordance with the ap- 24.19 Final order.
plicable rules of the Panel. 24.20 Final agency action.
(c) For purposes of determining AUTHORITY: 42 U.S.C. sections 6912, 6928,
whether a petition for review has been 6991b.
received within the ten day period
SOURCE: 53 FR 12263, Apr. 13, 1988, unless
under paragraph (b) of this section, the otherwise noted.
petition shall be considered received on
the date of service, if served person-
ally. If service is accomplished by mail, Subpart A—General
the date of receipt shall be considered § 24.01 Scope of these rules.
to be the date noted on the return re-
ceipt card. (a) These rules establish procedures
governing issuance of administrative
[53 FR 29322, Aug. 3, 1988] orders for corrective action pursuant
to sections 3008(h) and 9003(h) of the
PART 24—RULES GOVERNING Solid Waste Disposal Act, as amended
ISSUANCE OF AND ADMINISTRA- by the Resource Conservation and Re-
TIVE HEARINGS ON INTERIM STA- covery Act (the Act), and conduct of
TUS CORRECTIVE ACTION OR- administrative hearings on such or-
DERS ders, except as specified in paragraphs
(b) and (c) of this section.
(b) The hearing procedures appearing
Subpart A—General
at 40 CFR part 22 govern administra-
Sec. tive hearings on any order issued pur-
24.01 Scope of these rules. suant to section 3008(h) of the Act
24.02 Issuance of initial orders; definition of which:
final orders and orders on consent. (1) Is contained within an adminis-
24.03 Maintenance of docket and official
record.
trative order that includes claims
24.04 Filing and service of orders, decisions, under section 3008(a) of the Act; or
and documents. (2) Includes a suspension or revoca-
24.05 Response to the initial order; request tion of authorization to operate under
for hearing. section 3005(e) of the Act; or
249
§ 24.02 40 CFR Ch. I (7–1–00 Edition)
(3) Seeks penalties under section (2) A concise statement of the factual
3008(h)(2) of the Act for non-compliance basis upon which the order is issued,
with a section 3008(h) order. and
(c) The hearing procedures appearing (3) Notification of respondent’s right
at 40 CFR part 22 govern administra- to request a hearing with respect to
tive hearings on any order issued pur- any issue of material fact or the appro-
suant to section 9003(h) of the Act that priateness of the proposed corrective
is contained within an administrative action.
order that includes claims under sec- [53 FR 12263, Apr. 13, 1988, as amended at 56
tion 9006 of the Act. FR 49380, Sept. 27, 1991]
(d) Questions arising at any stage of
the proceeding which are not addressed § 24.03 Maintenance of docket and offi-
in these rules shall be resolved at the cial record.
discretion of the Regional Adminis- (a) A Clerk shall be designated by the
trator or Presiding Officer, as appro- Regional Administrator to receive all
priate. initial orders, final orders, decisions,
responses, memoranda, and documents
[53 FR 12263, Apr. 13, 1988, as amended at 56 regarding the order and to maintain
FR 49380, Sept. 27, 1991]
the official record and docket.
(b) On or before the date the initial
§ 24.02 Issuance of initial orders; defi-
nition of final orders and orders on order is served on respondent the EPA
consent. office issuing the order shall deliver to
the Clerk (a copy of) the administra-
(a) An administrative action under tive record supporting the findings of
section 3008(h) or 9003(h) of the Act fact, determinations of law, and relief
shall be commenced by issuance of an sought in the initial administrative
administrative order. When the order is order. This record shall include all rel-
issued unilaterally, the order shall be evant documents and oral information
referred to as an initial administrative (which has been reduced to writing),
order and may be referenced as a pro- which the Agency considered in the
ceeding under section 3008(h) or 9003(h) process of developing and issuing the
of the Act. When the order has become order, exclusive of privileged internal
effective, either after issuance of a communications. The administrative
final order following a final decision by record delivered to the Clerk must
the Regional Administrator, or after have an index and be available for re-
thirty days from issuance if no hearing view in the appropriate Agency Re-
is requested, the order shall be referred gional or Headquarters office during
to as a final administrative order. normal business hours after the order
Where the order is agreed to by the is issued.
parties, the order shall be denominated
as a final administrative order on con- § 24.04 Filing and service of orders, de-
sent. cisions, and documents.
(b) The initial administrative order (a) Filing of orders, decisions, and doc-
shall be executed by an authorized offi- uments. The original and one copy of
cial of EPA (petitioner), other than the the initial administrative order, the
Regional Administrator or the Assist- recommended decision of the Presiding
ant Administrator for the Office of Officer, the final decision and the final
Solid Waste and Emergency Response. administrative order, and one copy of
For orders issued by EPA Head- the administrative record and an index
quarters, rather than by a Regional of- thereto must be filed with the Clerk
fice, all references in these procedures designated for 3008(h) or 9003(h) orders.
to the Regional Administrator shall be In addition, all memoranda and docu-
understood to be to the Assistant Ad- ments submitted in the proceeding
ministrator for Solid Waste and Emer- shall be filed with the clerk.
gency Response or his delegatee. (b) Service of orders, decisions, and rul-
(c) The initial administrative order ings. The Clerk (or in the case of the
shall contain: initial administrative order, any other
(1) A reference to the legal authority designated EPA employee) shall ar-
pursuant to which the order is issued, range for the effectuation of service of
250
the initial administrative order, the pleadings and documents is complete

recommended decision of the Presiding upon mailing, except as provided in
Officer, the final decision, and final ad- §§ 24.10(b) and 24.14(e).
ministrative order. Service of a copy of [53 FR 12263, Apr. 13, 1988, as amended at 56
the initial administrative order to- FR 49380, Sept. 27, 1991]
gether with a copy of these procedures,
the recommended decision of the Pre- § 24.05 Response to the initial order;
siding Officer, the final decision, or a request for hearing.
final administrative order, shall be (a) The initial administrative order
made personally or by certified mail, becomes a final administrative order
return receipt requested or, if personal thirty (30) days after service of the
service cannot be effectuated or cer- order, unless the respondent files with
tified mail is returned refused or un- the Clerk within thirty (30) days after
signed, by regular mail, on the re- service of the order, a response to the
spondent or his representative. The initial order and requests a hearing.
Clerk shall serve other documents from (b) The response to the initial order
the Presiding Officer by regular mail. and request for a hearing must be in
(c) Service of documents filed by the writing and mailed to, or personally
parties. Service of all documents, filed served on, the Clerk of the Regional of-
by the parties, shall be made by the fice which issued the order.
parties or their representatives on (c) The response to the initial order
other parties or their representatives shall specify each factual or legal de-
and may be regular mail, with the termination, or relief provision in the
original filed with the Clerk. The origi- initial order the respondent disputes
nal of any pleading, letter, or other and shall briefly indicate the basis
document (other than exhibits) shall be upon which it disputes such determina-
signed by the party filing or by his tion or provision.
counsel or other representative. The (d) Respondent may include with its
signature constitutes a representation response to the initial order and re-
by the signer that he has read the quest for a hearing a statement indi-
pleading, letter, or other document, cating whether it believes the subpart
that to the best of his knowledge, in- B or subpart C hearing procedures
formation, and belief, the statements should be employed for the requested
made therein are true, and that it is hearing and the reason(s) therefore.
not interposed for delay.
(d) Service in general. Service of or- § 24.06 Designation of Presiding Offi-
ders, decisions, rulings, or documents cer.
by either the Clerk or the parties shall, Upon receipt of a request for a hear-
in the case of a domestic or foreign cor- ing, the Regional Administrator shall
poration, a partnership, or other unin- designate a Presiding Officer to con-
corporated association, which is sub- duct the hearing and preside over the
ject to suit under a common name, be proceedings.
made, as prescribed in § 24.04 (b) and (c),
upon an officer, partner, managing or § 24.07 Informal settlement conference.
general agent, or any person author- The respondent may request an infor-
ized by appointment or by Federal or mal settlement conference at any time
State law to receive service of process. by contacting the appropriate EPA em-
(e) Effective date of service. Service of ployee, as specified in the initial ad-
the initial administrative order and ministrative order. A request for an in-
final administrative order is complete formal conference will not affect the
upon receipt by respondent (or the re- respondent’s obligations to timely re-
spondent’s agent, attorney, representa- quest a hearing. Whether or not the re-
tive or other person employed by respondent requests a hearing, the par-
spondent and receiving such service), ties may confer informally concerning
personally or by certified mail, or upon any aspect of the order. The respondent
mailing by regular mail, if personal and respondent’s representatives shall
service or service by certified mail can- generally be allowed the opportunity
not be accomplished, in accordance at an informal conference to discuss
with § 24.04(b). Service of all other with the appropriate Agency technical
251
§ 24.08 40 CFR Ch. I (7–1–00 Edition)
and legal personnel all aspects of the Subpart B—Hearings on Orders

order, and in particular the basis for Requiring Investigations or Studies
the determination that a release has
occurred and the appropriateness of the § 24.09 Qualifications of Presiding Offi-
ordered corrective action. cer; ex parte discussion of the pro-
ceeding.
§ 24.08 Selection of appropriate hear- The Presiding Officer shall be either
ing procedures. the Regional Judicial Officer (as de-
(a) The hearing procedures set forth scribed in 40 CFR 22.04(b)) or another
in subpart B of this part shall be em- attorney employed by the Agency, who
ployed for any requested hearing if the has had no prior connection with the
initial order directs the respondent—— case, including the performance of any
(1) To undertake only a RCRA Facil- investigative or prosecuting functions.
At no time after issuance of the initial
ity Investigation and/or Corrective
administrative order and prior to
Measures Study, which may include
issuance of the final order shall the Re-
monitoring, surveys, testing, informa- gional Administrator, Presiding Offi-
tion gathering, analyses, and/or studies cer, or any person who will advise
(including studies designed to develop these officials in the decision on the
recommendations for appropriate cor- case, discuss ex parte the merits of the
rective measures), or proceeding with any interested person
(2) To undertake such investigations outside the Agency, with any Agency
and/or studies and interim corrective staff member who performs a prosecu-
measures, and if such interim correc- torial or investigative function in such
tive measures are neither costly nor proceeding or a factually related pro-
technically complex and are necessary ceeding, or with any representative of
to protect human health and the envi- such person. If, after issuance of the
ronment prior to development of a per- initial order and prior to issuance of
manent remedy, or the final order, the Regional Adminis-
(3) To undertake investigations/stud- trator, Presiding Officer, or any person
ies with respect to a release from an who will advise these officials in the
underground storage tank. decision on the case receives from or
(b) The hearing procedures set forth on behalf of any party in an ex parte
communication information which is
in subpart C of this part shall be em-
relevant to the decision on the case
ployed if the respondent seeks a hear-
and to which other parties have not
ing on an order directing that——
had an opportunity to respond, a sum-
(1) Corrective measures or such cor- mary of such information shall be
rective measures together with inves- served on all other parties, who shall
tigations/studies be undertaken, or have an opportunity to reply to same
(2) Corrective action or such correc- within ten (10) days of service of the
tive action together with investiga- summary.
tions/studies be undertaken with re-
spect to any release from an under- § 24.10 Scheduling the hearing; pre-
ground storage tank. hearing submissions by respondent.
(c) The procedures contained in sub- (a) Date and time for hearing. The Pre-
parts A and D of this part shall be fol- siding Officer shall establish the date,
lowed regardless of whether the initial time, location, and agenda for the re-
order directs the respondent to under- quested public hearing and transmit
take an investigation pursuant to the this information to the parties. Subject
procedures in subpart B of this part, or to § 24.10(c), the hearing shall be sched-
requires the respondent to implement uled and held within thirty (30) days of
corrective measures pursuant to the the Agency’s receipt of the request for
a public hearing.
procedures in subpart C of this part.
(b) Pre-hearing submissions by respond-
[56 FR 49380, Sept. 27, 1991] ent. At any time up to five (5) business
252
days before the hearing respondent through no fault of its own certain doc-
may, but is not required to, submit for uments supportive of its position could
inclusion in the administrative record not have been submitted before hearing
information and argument supporting in accordance with the requirements of
respondent’s positions on the facts, law § 24.10(b), it may submit such docu-
and relief, as each relates to the order ments at the hearing. Otherwise no
in question. A copy of any information new documentary support may be sub-
or argument submitted by respondent mitted at hearing. The Presiding Offi-
shall be served such that the Clerk and cer may upon request grant petitioner
petitioner receive same at least five (5) leave to respond to submissions made
business days before hearing. by respondent pursuant to this section
(c) Postponment of hearing. The Pre- or § 24.10(b). The Presiding Officer shall
siding Officer may grant an extension have the discretion to order either
of time for the conduct of the hearing party to submit additional information
upon written request of either party, (including but not limited to
for good cause shown, and after consid- posthearing briefs on undeveloped fac-
eration of any prejudice to other par- tual, technical, or legal matters) in
ties. The Presiding Officer may not ex- whatever form he deems appropriate
tend the date by which the request for either at or after the hearing.
hearing is due under § 24.05(a).
(d) Location of hearing. The hearing § 24.12 Summary of hearing; Presiding
Officer’s recommendation.
shall be held in the city in which the
relevant EPA Regional Office is lo- (a) As soon as practicable after the
cated, unless the Presiding Officer de- conclusion of the hearing a written
termines that there is good cause to summary of the proceeding shall be
hold it in another location. prepared. This summary shall, at a
minimum, identify:
§ 24.11 Hearing; oral presentations and (1) The dates of and known attendees
written submissions by the parties. at the hearing; and
The Presiding Officer shall conduct (2) The bases upon which the respond-
the hearing in a fair and impartial ent contested the terms of the order.
way, taking action as needed to avoid The summary must be signed by the
unnecessary delay, exclude redundant Presiding Officer.
material and maintain order during the (b) The Presiding Officer will evalu-
proceedings. Representatives of EPA ate the entire administrative record
shall introduce the administrative and, on the basis of that review and the
record and be prepared to summarize representations of EPA and respondent
the basis for the order. The respondent at the hearing, shall prepare and file a
shall have a reasonable opportunity to recommended decision with the Re-
address relevant issues and present its gional Administrator. The rec-
views through legal counsel or tech- ommended decision must address all
nical advisors. The Presiding Officer material issues of fact or law properly
may also allow technical and legal dis- raised by respondent, and must rec-
cussions and interchanges between the ommend that the order be modified,
parties, including responses to ques- withdrawn or issued without modifica-
tions to the extent deemed appropriate. tion. The recommended decision must
It is not the Agency’s intent to provide provide an explanation with citation to
EPA or respondent an opportunity to material contained in the record for
engage in direct examination or cross- any decision to modify a term of the
examination of witnesses. The Pre- order, to issue the order without
siding Officer may address questions to change, or to withdraw the order. The
the respondent’s or EPA’s representa- recommended decision shall be based
tive(s) during the hearing. Each party on the administrative record. If the
shall insure that a representative(s) is Presiding Officer finds that any con-
(are) present at the hearing, who is tested relief provision in the order is
(are) capable of responding to questions not supported by a preponderance of
and articulating that party’s position the evidence in the record, the Pre-
on the law and facts at issue. Where residing Officer shall recommend that
spondent can demonstrate that the order be modified and issued on
253
§ 24.13 40 CFR Ch. I (7–1–00 Edition)
terms that are supported by the record § 24.14 Scheduling the hearing; pre-
or withdrawn. hearing submissions by the parties.
(c) At any time within twenty-one (a) The Presiding Officer shall estab-
(21) days of service of the recommended lish an expeditious schedule for:
decision on the parties, the parties (1) The submission by respondent of a
may file comments on the rec- memorandum, with appropriate affida-
ommended decision with the Clerk. vits and exhibits, stating and sup-
The Clerk shall promptly transmit any porting respondent’s position on the
such comments received to the Re- facts, law and relief, specifying the
gional Administrator for his consider- bases upon and manner in which such
ation in reaching a final decision. determinations or relief provisions, if
erroneous, require modification or
Subpart C—Hearings on Orders withdrawal of the order:
Requiring Corrective Measures (2) Submission of a response by EPA;
and
§ 24.13 Qualifications of Presiding Offi- (3) A public hearing.
cer; ex parte discussion of the pro-
ceeding. Subject to § 24.14(b), a hearing shall be
scheduled within 45 days of the order
(a) Qualifications of Presiding Officer.
setting the schedule. The Presiding Of-
The Presiding Officer shall be either
ficer shall establish the date, time, lo-
the Regional Judicial Officer (as de-
cation and agenda for the hearing and
scribed in 40 CFR 22.04(b)) of another
shall transmit this information to the
attorney employed by the Agency, who
parties along with the schedule for the
has had no prior connection with the
hearing.
case, including the performance of any
(b) Postponement of the hearing. The
investigative or prosecuting functions.
Presiding Officer, as appropriate, may
(b) Ex parte discussion of the pro-
grant an extension of time for the fil-
ceeding. At no time after issuance of
ing of any document, other than a re-
the initial administrative order and
quest for a hearing under § 24.05(a), or
prior to issuance of the final order
may grant an extension of time for the
shall the Regional Administrator, Pre-
conduct of the hearing, upon written
siding Officer, or any person who will
request of either party, for good cause
advise these officials in the decision on
shown and after consideration of any
the case, discuss ex parte the merits of
prejudice to other parties.
the proceeding with any interested per-
(c) Respondent’s pre-hearing submis-
son outside the Agency, with any Agen-
sion. In accordance with the schedule
cy staff member who performs a pros-
set by the Presiding Officer, the re-
ecutorial or investigative function in
spondent shall file a memorandum
such proceeding or a factually related
stating and supporting respondent’s po-
proceeding, or with any representative
sition on the facts, law and relief. The
of such person. If, after issuance of the
memorandum must identify each fac-
initial order and prior to issuance of
tual allegation and all issues regarding
the final order, the Regional Adminis-
the appropriateness of the terms of the
trator, Presiding Officer, or any person
relief in the initial order that respond-
who will advise these officials in the
ent contests and for which respondent
decision on the case receives from or
requests a hearing. The memorandum
on behalf of any party in an ex parte
must clearly state respondent’s posi-
communication information which is
tion with respect to each such issue.
relevant to the decision on the case
Respondent must also include any pro-
and to which other parties have not
posals for modification of the order.
had an opportunity to respond, a sum-
The memorandum shall also present
mary of such information shall be
any arguments on the legal conclusions
served on all other parties, who shall
contained in the order.
have an opportunity to reply to same
(d) Written questions to EPA. The re-
within ten (10) days of service of the
spondent may file a request with the
summary.
254
Presiding Officer for permission to sub- ficer’s authority to ask questions and
mit written questions to the EPA Re- otherwise take steps to clarify factual
gional Office issuing the order con- matters which are in dispute. Upon re-
cerning issues of material fact in the quest of the respondent the Presiding
order. Officer may, in his discretion, allow
(1) Requests shall be accompanied by submittal by the respondent of addi-
the proposed questions. In most in- tional information in support of its
stances, no more than twenty-five (25) claim, if it is received by the Clerk and
questions, including subquestions and petitioner at least five (5) business
subparts, may be posed. The request days before the hearing.
and questions must be submitted to the (f) Location of hearing. The hearing
Presiding Officer at least twenty-one shall be held in the city in which the
(21) days before the hearing. relevant EPA Regional Office is lo-
(2) The Presiding Officer may direct cated, unless the Presiding Officer de-
EPA to respond to such questions as he termines that there is good cause to
designates. In deciding whether or not hold it in another location.
to direct the Agency to respond to
written questions the Presiding Officer § 24.15 Hearing; oral presentations and
should consider whether such responses written submissions by the parties.
are required for full disclosure and ade-
(a) The Presiding Officer shall con-
quate resolution of the facts. No ques-
duct the hearing in a fair and impartial
tions shall be allowed regarding privi-
manner, take action to avoid unneces-
leged internal communications. The
sary delay in the disposition of the pro-
Presiding Officer shall grant, deny, or
ceedings, and maintain order. The Pre-
modify such requests expeditiously. If
siding Officer shall permit oral state-
a request is granted the Presiding Offi-
cer may revise questions and may limit ments on behalf of the respondent and
the number and scope of questions. EPA. The Presiding Officer may ad-
Questions may be deleted or revised in dress questions to the respondent’s or
the discretion of the Presiding Officer the EPA’s representative(s) during the
for reasons, which may include the fact hearing. Each party shall ensure that a
that he finds the questions to be irrele- representative(s) is (are) present at the
vant, redundant, unnecessary, or an hearing, who is (are) capable of re-
undue burden on the Agency. The Pre- sponding to questions and articulating
siding Officer shall transmit the ques- that party’s position on the law and
tions as submitted or as modified to facts at issue. Apart from questions by
EPA. EPA shall respond to the ques- the Presiding Officer, no direct exam-
tions within fourteen (14) calendar days ination or cross-examination shall be
of service of the questions by the Pre- allowed.
siding Officer, unless an extension is (b) Upon commencement of the hear-
granted. ing, a representative of EPA shall in-
(e) Submission of additional informa- troduce the order and record sup-
tion. The Presiding Officer shall have porting issuance of the order, and sum-
the discretion to order either party to marize the basis for the order. The re-
submit additional information (includ- spondent may respond to the adminis-
ing but not limited to post-hearing trative record and offer any facts,
briefs on undeveloped factual, tech- statements, explanations or documents
nical, or legal matters) in whatever which bear on any issue for which the
form he deems appropriate either be- hearing has been requested. Any such
fore, at, or after the hearing. The Pre- presentation by respondent may in-
siding Officer may issue subpoenas for clude new documents only to the ex-
the attendance and testimony of per- tent that respondent can demonstrate
sons and the production of relevant pa- that, through no fault of its own, such
pers, books and documents. Since these documents could not have been sub-
hearing procedures provide elsewhere mitted before hearing in accordance
that the parties are not to engage in with the requirements of § 24.14 (c) and
direct or cross-examination of wit- (e). The Agency may then present mat-
nesses, the subpoena power is to serve ters solely in rebuttal to matters pre-
only as an adjunct to the Presiding Of- viously presented by the respondent.
255
§ 24.16 40 CFR Ch. I (7–1–00 Edition)
The Presiding Officer may allow the re- (b) At any time within twenty-one
spondent to respond to any such rebut- (21) days of service of the recommended
tal submitted. The Presiding Officer decision on the parties, the parties
may exclude repetitive or irrelevant may file comments on the rec-
matter. The Presiding Officer may ommended decision with the Clerk.
upon request grant petitioner leave to The Clerk shall promptly transmit any
respond to submissions made by re- such comments received to the Re-
spondent pursuant to this paragraph or gional Administrator for his consider-
§ 24.14(e). ation in reaching a final decision.
§ 24.16 Transcript or recording of
hearing. Subpart D—Post-Hearing
(a) The hearing shall be either tran-
Procedures
scribed stenographically or tape re- § 24.18 Final decision.
corded. Upon written request, such
transcript or tape recording shall be As soon as practicable after receipt
made available for inspection or copy- of the recommended decision, the Re-
ing. gional Administrator will either sign
(b) The transcript or recording of the or modify such recommended decision,
hearing and all written submittals filed and issue it as a final decision. If the
with the Clerk by the parties subse- Regional Administrator modifies the
quent to initial issuance of the order recommended decision, he shall insure
including post-hearing submissions that the final decision indicates the
will become part of the administrative legal and factual basis for the decision
record for the proceeding, for consider- as modified. The Regional Administra-
ation by the Presiding Officer and Re- tor’s decision shall be based on the ad-
gional Administrator. ministrative record.
§ 24.17 Presiding Officer’s recom- § 24.19 Final order.
mendation.
If the Regional Administrator does
(a) The Presiding Officer will, as soon not adopt portions of the initial order,
as practicable after the conclusion of or finds that modification of the order
the hearing, evaluate the entire adminis necessary, the signatory official on
istrative record and, on the basis of the the initial administrative order shall
administrative record, prepare and file modify the order in accordance with
a recommended decision with the Re- the terms of the final decision and file
gional Administrator. The rec- and serve a copy of the final adminis-
ommended decision must address all trative order. If the Regional Adminis-
material issues of fact or law properly trator finds the initial order appro-
raised by respondent, and must rec- priate as originally issued, the final de-
ommend that the order be modified,
cision shall declare the initial adminis-
withdrawn or issued without modifica-
trative order to be a final order, effec-
tion. The recommended decision must
tive upon service of the final decision.
provide an explanation, with citation
If the Regional Administrator declares
to material contained in the record for
that the initial order must be with-
any decision to modify a term of the
order, to issue the order without drawn, the signatory official on the ini-
change or to withdraw the order. The tial administrative order will file and
recommended decision shall be based serve a withdrawal of the initial ad-
on the administrative record. If the ministrative order. This may be done
Presiding Officer finds that any con- without prejudice.
tested relief provision in the order is
§ 24.20 Final agency action.
not supported by a preponderance of
the evidence in the record, the Pre- The final decision and the final ad-
siding Officer shall recommend that ministrative order are final agency ac-
the order be modified and issued on tions that are effective on filing and
terms that are supported by the record, service. These actions are not appeal-
or withdrawn. able to the Administrator.
256
PART 25—PUBLIC PARTICIPATION are set forth in §§ 25.5, 25.6, 25.7, and
IN PROGRAMS UNDER THE RE- 25.8. This part does not mandate the
use of these public participation mech-
SOURCE CONSERVATION AND anisms. It does, however, set require-
RECOVERY ACT, THE SAFE ments which those responsible for im-
DRINKING WATER ACT, AND THE plementing the mechanisms must fol-
CLEAN WATER ACT low if the mechanisms are required
elsewhere in this chapter.
Sec. (c) Requirements which apply to Fed-
25.1 Introduction. eral financial assistance programs
25.2 Scope.
(grants and cooperative agreements)
25.3 Policy and objectives.
25.4 Information, notification, and con- under the three acts are set forth in
sultation responsibilities. §§ 25.10 and 25.12(a).
25.5 Public hearings. (d) Requirements for public involve-
25.6 Public meetings. ment which apply to specific activities
25.7 Advisory groups. are set forth in § 25.9 (Permit enforce-
25.8 Responsiveness summaries. ment), § 25.10 (Rulemaking), and § 25.12
25.9 Permit enforcement. (Assuring compliance with require-
25.10 Rulemaking.
ments).
25.11 Work elements in financial assistance
agreements.
§ 25.2 Scope.
25.12 Assuring compliance with public par-
ticipation requirements. (a) The activities under the three
25.13 Coordination and non-duplication. Acts which are covered by this part
25.14 Termination of reporting require- are:
ments. (1) EPA rulemaking, except non-pol-
AUTHORITY: Sec. 101(e), Clean Water Act, as icy rulemaking (for example publica-
amended (33 U.S.C. 1251(e)); sec. 7004(b), Re- tion of funding allotments under statu-
source Conservation and Recovery Act (42 tory formulas); and State rulemaking
U.S.C. 6974(b)); sec. 1450(a)(1), Safe Drinking under the Clean Water Act and Re-
Water Act, as amended (42 U.S.C. 300j–9). source Conservation and Recovery Act;
SOURCE: 44 FR 10292, Feb. 16, 1979, unless (2) EPA issuance and modification of
otherwise noted. permits, and enforcement of permits as
delineated by § 25.9;
§ 25.1 Introduction. (3) Development by EPA of major in-
This part sets forth minimum re- formational materials, such as citizen
quirements and suggested program ele- guides or handbooks, which are ex-
ments for public participation in ac- pected to be used over several years
tivities under the Clean Water Act and which are intended to be widely
(Pub. L. 95–217), the Resource Con- distributed to the public;
servation and Recovery Act (Pub. L. (4) Development by EPA of strategy
94–580), and the Safe Drinking Water and policy guidance memoranda when
Act (Pub. L. 93–523). The applicability a Deputy Assistant Administrator de-
of the requirements of this part is as termines it to be appropriate;
follows: (5) Development and implementation
(a) Basic requirements and suggested of plans, programs, standards, con-
program elements for public informa- struction, and other activities sup-
tion, public notification, and public ported with EPA financial assistance
consultation are set forth in § 25.4. (grants and cooperative agreements) to
These requirements are intended to State, interstate, regional and local
foster public awareness and open proc- agencies (herein after referred to as
esses of government decisionmaking. ‘‘State, interstate, and substate agen-
They are applicable to all covered ac- cies’’);
tivities and programs described in (6) The process by which EPA makes
§ 25.2(a). a determination regarding approval of
(b) Requirements and suggested pro- State administration of the Construc-
gram elements which govern the struction Grants program in lieu of Federal
ture of particular public participation administration; and the administration
mechanisms (for example, advisory of the Construction Grants Program by
groups and responsiveness summaries) the State after EPA approval;
257
§ 25.3 40 CFR Ch. I (7–1–00 Edition)
(7) The process by which EPA makes ground Injection Control programs and
a determination regarding approval of NPDES permit programs are found in
State administration of the following part 123 of this chapter. These regula-
programs in lieu of Federal administra- tions embody the substantive require-
tion: The State Hazardous Waste Pro- ments of this part.
gram; the NPDES Permit Program; the (g) These regulations apply to the ac-
Dredge and Fill Permit Program; and tivities of all agencies receiving EPA
the Underground Injection Control financial assistance which is awarded
Program; after [the effective date of final regula-
(8) Other activities which the Assist- tions], and to all other covered activi-
ant Administrator for Water and Waste ties of EPA, State, interstate, and sub-
Management, the Assistant Adminis- state agencies which occur after that
trator for Enforcement, or any EPA date. These regulations will apply to
Regional Administrator deems appro- ongoing grants or other covered activi-
priate in view of the Agency’s responsi- ties upon any significant change in the
bility to involve the public in signifi- activity (for example, upon a signifi-
cant decisions. cant proposed increase in project scope
(b) Activities which are not covered of a construction grant). Parts 105
by this part, except as otherwise pro- (Public Participation in Water Pollu-
vided under (a)(8) or (c) of this section, tion Control) and 249 (Public Participa-
are activities under parts 33 (Subagree- tion in Solid Waste Management) will
ments), 39 (Loan Guarantees for Con- no longer appear in the Code of Federal
struction of Treatment Works), 40 (Re- Regulations; however, they will remain
search and Development Grants), 45 applicable, in uncodified form, to
(Training Grants and Manpower Fore- grants awarded prior to the effective
casting) and 46 (Fellowships) of this date of this part and to all other ongo-
chapter. ing activities.
(c) Some programs covered by these
regulations contain further provisions § 25.3 Policy and objectives.
concerning public participation. These (a) EPA, State, interstate, and sub-
are found elsewhere in this chapter in state agencies carrying out activities
provisions which apply to the program described in § 25.2(a) shall provide for,
of interest. Regulations which govern encourage, and assist the participation
the use and release of public informa- of the public. The term, ‘‘the public’’ in
tion are set forth in part 2 of this chap- the broadest sense means the people as
ter. a whole, the general populace. There
(d) Specific provisions of court orders are a number of identifiable ‘‘segments
which conflict with requirements of of the public’’ which may have a par-
this part, such as court-established ticular interest in a given program or
timetables, shall take precedence over decision. Interested and affected seg-
the provisions in this part. ments of the public may be affected di-
(e) Where the State undertakes func- rectly by a decision, either beneficially
tions in the construction grants pro- or adversely; they may be affected in-
gram, the State shall be responsible for directly; or they may have some other
meeting these requirements for public concern about the decision. In addition
participation, and any applicable pub- to private citizens, the public may in-
lic participation requirements found clude, among others, representatives of
elsewhere in this chapter, to the same consumer, environmental, and minor-
extent as EPA. ity associations; trade, industrial, agri-
(f) Where the State undertakes func- cultural, and labor organizations; pub-
tions in those programs specifically lic health, scientific, and professional
cited in § 25.2(a)(7), the State shall be societies; civic associations; public of-
responsible for meeting the require- ficials; and governmental and edu-
ments for public participation included cational associations.
in the applicable regulations governing (b) Public participation is that part
those State programs. The require- of the decision-making process through
ments for public participation in State which responsible officials become
Hazardous Waste Programs, Dredge aware of public attitudes by providing
and Fill Permit programs, Under- ample opportunity for interested and
258
affected parties to communicate their tion and participation in the develop-

views. Public participation includes ment and implementation of activities
providing access to the decision-mak- covered by this part. This program
ing process, seeking input from and shall meet the following requirements:
conducting dialogue with the public, (b) Information and assistance require-
assimilating public viewpoints and ments. (1) Providing information to the
preferences, and demonstrating that public is a necessary prerequisite to
those viewpoints and preferences have meaningful, active public involvement.
been considered by the decision-mak- Agencies shall design informational ac-
ing official. Disagreement on signifi- tivities to encourage and facilitate the
cant issues is to be expected among public’s participation in all significant
government agencies and the diverse decisions covered by § 25.2(a), particu-
groups interested in and affected by larly where alternative courses of ac-
public policy decisions. Public agencies tion are proposed.
should encourage full presentation of (2) Each agency shall provide the
issues at an early stage so that they
public with continuing policy, pro-
can be resolved and timely decisions
gram, and technical information and
can be made. In the course of this proc-
assistance beginning at the earliest
ess, responsible officials should make
practicable time. Informational mate-
special efforts to encourage and assist
rials shall highlight significant issues
participation by citizens representing
that will be the subject of decision-
themselves and by others whose re-
making. Whenever possible, consistent
sources and access to decision-making
with applicable statutory require-
may be relatively limited.
ments, the social, economic, and envi-
(c) The following are the objectives
ronmental consequences of proposed
of EPA, State, interstate, and substate
agencies in carrying out activities cov- decisions shall be clearly stated in such
ered by this part: material. Each agency shall identify
(1) To assure that the public has the segments of the public likely to be af-
opportunity to understand official pro- fected by agency decisions and should
grams and proposed actions, and that consider targeting informational mate-
the government fully considers the rials toward them (in addition to the
public’s concerns; materials directed toward the general
(2) To assure that the government public). Lengthy documents and com-
does not make any significant decision plex technical materials that relate to
on any activity covered by this part significant decisions should be summa-
without consulting interested and af- rized for public and media uses. Fact
fected segments of the public; sheets, news releases, newsletters, and
(3) To assure that government action other similar publications may be used
is as responsive as possible to public to provide notice that materials are
concerns; available and to facilitate public un-
(4) To encourage public involvement derstanding of more complex docu-
in implementing environmental laws; ments, but shall not be a substitute for
(5) To keep the public informed about public access to the full documents.
significant issues and proposed project (3) Each agency shall provide one or
or program changes as they arise; more central collections of reports,
(6) To foster a spirit of openness and studies, plans, and other documents re-
mutual trust among EPA, States, sub- lating to controversial issues or signifi-
state agencies and the public; and cant decisions in a convenient location
(7) To use all feasible means to create or locations, for example, in public li-
opportunities for public participation, braries. Examples of such documents
and to stimulate and support participa- are catalogs of documents available
tion. from the agency, grant applications,
fact sheets on permits and permit ap-
§ 25.4 Information, notification, and plications, permits, effluent discharge
consultation responsibilities. information, and compliance schedule
(a) General. EPA, State, interstate, reports. Copying facilities at reason-
and substate agencies shall conduct a able cost should be available at the de-
continuing program for public informa- positories.
259
§ 25.4 40 CFR Ch. I (7–1–00 Edition)
(4) Whenever possible, agencies shall time for public response; generally this
provide copies of documents of interest should not be less than 30 days.
to the public free of charge. Charges for (d) Public consultation. For the pur-
copies should not exceed prevailing poses of this part, ‘‘public consulta-
commercial copying costs. EPA re- tion’’ means an exchange of views be-
quirements governing charges for in- tween governmental agencies and in-
formation and documents provided to terested or affected persons and organi-
the public in response to requests made zations in order to meet the objectives
under the Freedom of Information Act set forth in § 25.3. Requirements for
are set forth in part 2 of this chapter. three common forms of public con-
Consistent with the objectives of sultation (public hearings, public meet-
§ 25.3(b), agencies may reserve their
ings, and advisory groups) are set forth
supply of free copies for private citi-
in §§ 25.5, 25.6, and 25.7. Other less for-
zens and others whose resources are
limited. mal consultation mechanisms may in-
clude but are not limited to review
(5) Each agency shall develop and
maintain a list of persons and organi- groups, ad hoc committees, task forces,
zations who have expressed an interest workshops, seminars and informal per-
in or may, by the nature of their pur- sonal communications with individuals
poses, activities or members, be af- and groups. Public consultation must
fected by or have an interest in any be preceded by timely distribution of
covered activity. Generally, this list information and must occur suffi-
will be most useful where subdivided by ciently in advance of decision-making
area of interest or geographic area. to allow the agency to assimilate pub-
Whenever possible, the list should in- lic views into agency action. EPA,
clude representatives of the several State, interstate, and substate agen-
categories of interests listed under cies shall provide for early and con-
§ 25.3(a). Those on the list, or relevant tinuing public consultation in any sig-
portions if the list is subdivided, shall nificant action covered by this part.
receive timely and periodic notifica- Merely conferring with the public after
tion of the availability of materials an agency decision does not meet this
under § 25.4(b)(2). requirement. In addition to holding
(c) Public notification. Each agency hearings and meetings as specifically
shall notify interested and affected required in this chapter, a hearing or
parties, including appropriate portions meeting shall be held if EPA, the
of the list required by paragraph (b)(5) State, interstate, or substate agency
of this section, and the media in ad- determines that there is significant
vance of times at which major deci- public interest or that a hearing or
sions not covered by notice require-
meeting would be useful.
ments for public meetings or public
(e) Public information concerning legal
hearings are being considered. Gen-
erally, notices should include the time- proceedings. EPA, State, interstate, and
table in which a decision will be substate agencies shall provide full and
reached, the issues under consider- open information on legal proceedings
ation, any alternative courses of action to the extent not inconsistent with
or tentative determinations which the court requirements, and where such
agency has made, a brief listing of the disclosure would not prejudice the con-
applicable laws or regulations, the lo- duct of the litigation. EPA actions
cation where relevant documents may with regard to affording opportunities
be reviewed or obtained, identification for public comment before the Depart-
of any associated public participation ment of Justice consents to a proposed
opportunities such as workshops or judgment in an action to enjoin dis-
meetings, the name of an individual to charges of pollutants into the environ-
contact for additional information, and ment shall be consistent with the
any other appropriate information. All Statement of Policy issued by the De-
advance notifications under this para- partment of Justice (see title 28, CFR,
graph must be provided far enough in chapter 1, § 50.7).
advance of agency action to permit
260
§ 25.5 Public hearings. tate attendance by the public. Accessi-

(a) Applicability. Any non-adjudica- bility of public transportation, and use
tory public hearing, whether manda- of evening and weekend hearings,
tory or discretionary, under the three should be considered. In the case of ac-
Acts shall meet the following min- tions with Statewide interest, holding
imum requirements. These require- more than one hearing should be con-
ments are subordinate to any more sidered.
stringent requirements found else- (d) Scheduling presentations. The agen-
where in this chapter or otherwise im- cy holding the hearing shall schedule
posed by EPA, State, interstate, or witnesses in advance, when necessary,
substate agencies. Procedures devel- to ensure maximum participation and
oped for adjudicatory hearings required allotment of adequate time for all
by this chapter shall be consistent with speakers. However, the agency shall re-
the public participation objectives of serve some time for unscheduled testi-
this part, to the extent practicable. mony and may consider reserving
(b) Notice. A notice of each hearing blocks of time for major categories of
shall be well publicized, and shall also witnesses.
be mailed to the appropriate portions (e) Conduct of hearing. The agency
of the list of interested and affected holding the hearing shall inform the
parties required by § 25.4(b)(5). Except audience of the issues involved in the
as otherwise specifically provided else- decision to be made, the considerations
where in this chapter, these actions the agency will take into account, the
must occur at least 45 days prior to the agency’s tentative determinations (if
date of the hearing. However, where any), and the information which is par-
EPA determines that there are no sub- ticularly solicited from the public. The
stantial documents which must be re- agency should consider allowing a
viewed for effective hearing participa- question and answer period. Procedures
tion and that there are no complex or shall not unduly inhibit free expression
controversial matters to be addressed of views (for example, by onerous writ-
by the hearing, the notice requirement ten statement requirements or quali-
may be reduced to no less than 30 days. fication of witnesses beyond minimum
EPA may further reduce or waive the identification).
hearing notice requirement in emer-
(f) Record. The agency holding the
gency situations where EPA deter-
hearing shall prepare a transcript, re-
mines that there is an imminent dan-
ger to public health. To the extent not cording or other complete record of
duplicative, the agency holding the public hearing proceedings and make it
hearing shall also provide informal no- available at no more than cost to any-
tice to all interested persons or organi- one who requests it. A copy of the
zations that request it. The notice record shall be available for public re-
shall identify the matters to be dis- view.
cussed at the hearing and shall include
§ 25.6 Public meetings.
or be accompanied by a discussion of
the agency’s tentative determination Public meetings are any assemblies
on major issues (if any), information or gathering, (such as conferences, in-
on the availability of a bibliography of formational sessions, seminars, work-
relevant materials (if deemed appro- shops, or other activities) which the re-
priate), and procedures for obtaining sponsible agency intends to be open to
further information. Reports, docu- anyone wishing to attend. Public meet-
ments and data relevant to the discus- ings are less formal than public hear-
sion at the public hearing shall be ings. They do not require formal pres-
available to the public at least 30 days entations, scheduling of presentations
before the hearing. Earlier availability and a record of proceedings. The re-
of materials relevant to the hearing quirements of § 25.5 (b) and (c) are ap-
will further assist public participation plicable to public meetings, except
and is encouraged where possible. that the agency holding the meeting
(c) Locations and time. Hearings must may reduce the notice to not less than
be held at times and places which, to 30 days if there is good reason that
the maximum extent feasible, facili- longer notice cannot be provided.
261
§ 25.7 40 CFR Ch. I (7–1–00 Edition)
§ 25.7 Advisory groups. organization which reflects a general

(a) Applicability. The requirements of civic, social, recreational, environ-
this section on advisory groups shall be mental or public health perspective in
met whenever provisions of this chap- the area and which does not directly
ter require use of an advisory group by reflect the economic interests of its
State, interstate, or substate agencies membership.
involved in activities supported by (iii) Public officials.
EPA financial assistance under any of (iv) Citizens or representatives of or-
the three Acts. ganizations with substantial economic
(b) Role. Primary responsibility for interests in the plan or project.
decision-making in environmental pro- (2) Generally, where the activity has
grams is vested by law in the elected a particular geographic focus, the advi-
and appointed officials who serve on sory group shall be made up of persons
public bodies and agencies at various who are residents of that geographic
levels of government. However, all seg- area.
ments of the public must have the op- (3) In order to meet the advisory
portunity to participate in environ- group membership requirements of
mental quality planning. Accordingly, paragraph (c)(1) of this section, the as-
where EPA identifies a need for contin- sisted agency shall:
ued attention of an informed core (i) Identify public interest groups,
group of citizens in relation to activi- economic interests, and public officials
ties conducted with EPA financial as- who are interested in or affected by the
sistance, program regulations else- assisted activity.
where in this chapter will require an (ii) Make active efforts to inform
advisory group to be appointed by the citizens in the affected area, and the
financially assisted agency. Such advi- persons or groups identified under
sory groups will not be the sole mecha- paragraph (c)(3)(i) of this section, of
nism for public participation, but will this opportunity for participation on
complement other mechanisms. They the advisory group. This may include
are intended to assist elected or ap- such actions as placing notices or an-
pointed officials with final decision- nouncements in the newspapers or
making responsibility by making rec- other media, mailing written notices to
ommendations to such officials on im- interested parties, contacting organiza-
portant issues. In addition, advisory tions or individuals directly, request-
groups should foster a constructive ing organizations to notify their mem-
interchange among the various inter- bers through meetings, newsletters, or
ests present on the group and enhance other means.
the prospect of community acceptance (iii) Where the membership composi-
of agency action. tion set forth in paragraph (c)(1) of this
(c) Membership. (1) The agency receiv- section is not met after the above ac-
ing financial assistance shall assure tions, the assisted agency shall iden-
that the advisory group reflects a bal- tify the causative problems and make
ance of interests in the affected area. additional efforts to overcome such
In order to meet this requirement, the problems. For example, the agency
assisted agency shall take positive ac- should make personal contact with
tion, in accordance with paragraph prospective participants to invite their
(c)(3) of this section, to establish an ad- participation.
visory group which consists of substan- (iv) Where problems in meeting the
tially equivalent proportions of the fol- membership composition arise, the
lowing four groups: agency should request advice and as-
(i) Private citizens. No person may be sistance from EPA.
included in this portion of the advisory (d) The assisted agency shall record
group who is likely to incur a financial the names and mailing addresses of
gain or loss greater than that of an av- each member of the advisory group,
erage homeowner, taxpayer or con- with the attributes of each in relation
sumer as a result of any action likely to the membership requirements set
to be taken by the assisted agency. forth in paragraph (c)(1) of this section,
(ii) Representatives of public interest provide a copy to EPA, and make the
groups. A ‘‘public interest group’’ is an list available to the public. In the
262
event that the membership require- ance and other purposes agreed upon
ments set forth in paragraph (c)(1) of between the advisory group and the
this section are not met, the assisted agency.
agency shall append to the list a de- (4) The assisted agency shall estab-
scription of its efforts to comply with lish a system to make costs of reason-
those requirements and an explanation able out-of-pocket expenses of advisory
of the problems which prevented com- group participation available to group
pliance. EPA shall review the agency’s members. Time away from work need
efforts to comply and approve the advi- not be reimbursed; however, assisted
sory group composition or, if the agen- agencies are encouraged to schedule
cy’s efforts were inadequate, require meetings at times and places which
additional actions to achieve the re- will not require members to leave their
quired membership composition. jobs to attend.
(e) Responsibilities of the assisted agen- (f) Advisory group responsibilities and
cy. (1) The assisted agency shall des- duties. The advisory group may select
ignate a staff contact who will be re- its own chairperson, adopt its own
sponsible for day-to-day coordination rules of order, and schedule and con-
among the advisory group, the agency, duct its own meetings. Advisory group
and any agency contractors or consult- meetings shall be announced well in
ants. The financial assistance agree- advance and shall be open to the pub-
ment shall include a budget item for lic. At all meetings, the advisory group
this staff contact. Where substantial shall provide opportunity for public
portions of the assisted agency’s re- comment. Any minutes of advisory
sponsibilities will be met under con- group meetings and recommendations
tract, the agency shall require a simi- to the assisted agency shall be avail-
lar designation, and budget specifica- able to the public. The advisory group
tion, of its contractor. In the latter should monitor the progress of the
event, the assisted agency does not project and become familiar with
have to designate a separate staff con- issues relevant to project development.
tact on its own staff, if the Regional In the event the assisted agency and
Administrator determines that the the advisory group agree that the advi-
contractor’s designation will result in sory group will assume public partici-
adequate coordination. The staff con- pation responsibilities, the group
tact shall be located in the project should undertake those responsibilities
area. promptly. The advisory group should
(2) The assisted agency has such re- make written recommendations di-
sponsibilities as providing the advisory rectly to the assisted agency and to re-
group with information, identifying sponsible decision-making officials on
issues for the advisory group’s consid- major decisions (including approval of
eration, consulting with the advisory the public participation program) and
group throughout the project, request- respond to any requests from the agen-
ing the advisory group’s recommenda- cy or decision-making officials for rec-
tions prior to major decisions, trans- ommendations. The advisory group
mitting advisory group recommenda- should remain aware of community at-
tions to decision-making officials, and titudes and responses to issues as they
making written responses to any for- arise. As part of this effort, the advi-
mal recommendation by the advisory sory group may, within the limitations
group. The agency shall make any such of available resources, conduct public
written responses available to the pub- participation activities in conjunction
lic. To the maximum extent feasible, with the assisted agency; solicit out-
the assisted agency shall involve the side advice; and establish, in conjunc-
advisory group in the development of tion with the assisted agency, sub-
the public participation program. committees, ad hoc groups, or task
(3) The assisted agency shall identify forces to investigate and develop rec-
professional and clerical staff time ommendations on particular issues as
which the advisory group may depend they arise. The advisory group should
upon for assistance, and provide the ad- undertake its responsibilities fully and
visory group with an operating budget promptly in accordance with the poli-
which may be used for technical assist- cies and requirements of this part.
263
§ 25.8 40 CFR Ch. I (7–1–00 Edition)
Nothing shall preclude the right of the public. Responsiveness Summaries

advisory group from requesting EPA to shall be used as part of evaluations re-
perform an evaluation of the assisted quired under this part or elsewhere in
agency’s compliance with the require- this chapter.
ments of this part.
(g) Training and assistance. EPA will § 25.9 Permit enforcement.
promptly provide appropriate written
Each agency administering a permit
guidance and project information to
program shall develop internal proce-
the newly formed advisory group and
may provide advice and assistance to dures for receiving evidence submitted
the group throughout the life of the by citizens about permit violations and
project. EPA will develop and, in con- ensuring that it is properly considered.
junction with the State or assisted Public effort in reporting violations
agency, carry out a program to provide shall be encouraged, and the agency
a training session for the advisory shall make available information on
group, and appropriate assisted agency reporting procedures. The agency shall
representatives, promptly after the ad- investigate alleged violations prompt-
visory group is formed. The assisted ly.
agency shall provide additional needed
information or assistance to the advi- § 25.10 Rulemaking.
sory group. (a) EPA shall invite and consider
written comments on proposed and in-
§ 25.8 Responsiveness summaries.
terim regulations from any interested
Each agency which conducts any ac- or affected persons and organizations.
tivities required under this part shall All such comments shall be part of the
prepare a Responsiveness Summary at public record, and a copy of each com-
specific decision points as specified in ment shall be available for public in-
program regulations or in the approved
spection. EPA will maintain a docket
public participation work plan. Re-
of comments received and any Agency
sponsiveness Summaries are also re-
quired for rulemaking activities under responses. Notices of proposed and in-
§ 25.10. Each Responsiveness Summary terim rulemaking, as well as final rules
shall identify the public participation and regulations, shall be distributed in
activity conducted; describe the mat- accordance with § 25.4(c) to interested
ters on which the public was consulted; or affected persons promptly after pub-
summarize the public’s views, signifi- lication. Each notice shall include in-
cant comments, criticisms and sugges- formation as to the availability of the
tions; and set forth the agency’s spe- full texts of rules and regulations
cific responses in terms of modifica- (where these are not set forth in the
tions of the proposed action or an ex- notice itself) and places where copying
planation for rejection of proposals facilities are available at reasonable
made by the public. Responsiveness cost to the public. Under Executive
Summaries prepared by agencies re- Order 12044 (March 23, 1978), further
ceiving EPA financial assistance shall EPA guidance will be issued concerning
also include evaluations by the agency public participation in EPA rule-
of the effectiveness of the public par- making. A Responsiveness Summary
ticipation program. Assisted agencies shall be published as part of the pre-
shall request such evaluations from amble to interim and final regulations.
any advisory group and provide an op- In addition to providing opportunity
portunity for other participating mem- for written comments on proposed and
bers of the public to contribute to the interim regulations, EPA may choose
evaluation. (In the case of programs
to hold a public hearing.
with multiple responsiveness summary
requirements, these analyses need only (b) State rulemaking specified in
be prepared and submitted with the § 25.2(a)(1) shall be in accord with the
final summary required.) Responsive- requirements of paragraph (a) of this
ness summaries shall be forwarded to section or with the State’s administra-
the appropriate decision-making offi- tive procedures act, if one exists. How-
cial and shall be made available to the ever, in the event of conflict between a
264
provision of paragraph (a) of this sec- of this part and, any applicable public
tion and a provision of a State’s admin- participation requirements found else-
istrative procedures act, the State’s where in this chapter, will be met.
law shall apply. (2) Compliance—(i) Evaluation. EPA
shall evaluate compliance with public
§ 25.11 Work elements in financial as- participation requirements using the
sistance agreements.
work plan, responsiveness summary,
(a) This section is applicable to ac- and other available information. EPA
tivities under § 25.2(a)(5) except as oth- will judge the adequacy of the public
erwise provided in parts 30 or 35. participation effort in relation to the
(b) Each applicant for EPA financial objectives and requirements of § 25.3
assistance shall set forth in the appli- and § 25.4 and other applicable require-
cation a public participation work plan ments. In conducting this evaluation,
or work element which reflects how EPA may request additional informa-
public participation will be provided tion from the assisted agency, includ-
for, encouraged, and assisted in according records of hearings and meetings,
ance with this part. This work plan or and may invite public comment on the
element shall cover the project period. agency’s performance. The evaluation
At a minimum, the work plan or ele-
will be undertaken as part of any mid-
ment shall include:
project review required in various pro-
(1) Staff contacts and budget re-
grams under this chapter; where no
sources to be devoted to public partici-
such review is required the review shall
pation by category;
be conducted at an approximate mid-
(2) A proposed schedule for public
point in continuing EPA oversight ac-
participation activities to impact
tivity. EPA may, however, undertake
major decisions, including consultation
points where responsiveness summaries such evaluation at any point in the
will be prepared; project period, and will do so whenever
(3) An identification of consultation it believes that an assisted agency may
and information mechanisms to be have failed to meet public participa-
used; tion requirements.
(4) The segments of the public tar- (ii) Remedial actions. Whenever EPA
geted for involvement. determines that an assisted agency has
(c) All reasonable costs of public par- not fully met public participation re-
ticipation incurred by assisted agencies quirements, EPA shall take actions
which are identified in an approved which it deems appropriate to mitigate
public participation work plan or ele- the adverse effects of the failure and
ment, or which are otherwise approved assure that the failure is not repeated.
by EPA, shall be eligible for financial For ongoing projects, that action shall
assistance. include, at a minimum, imposing more
(d) The work plan or element may be stringent requirements on the assisted
revised as necessary throughout the agency for the next budget period or
project period with approval of the Re- other period of the project (including
gional Administrator. such actions as more specific output
requirements and milestone schedules
§ 25.12 Assuring compliance with pub- for output achievement; interim EPA
lic participation requirements. review of public participation activi-
(a) Financial assistance programs—(1) ties and materials prepared by the
Applications. EPA shall review the pub- agency, and phased release of funds
lic participation work plan (or, if no based on compliance with milestone
work plan is required by this chapter schedules.) EPA may terminate or sus-
for the particular financial assistance pend part or all financial assistance for
agreement, the public participation non-compliance with public participa-
element) included in the application to tion requirements, and may take any
determine consistency with all policies further actions that it determines to be
and requirements of this part. No fi- appropriate in accordance with parts 30
nancial assistance shall be awarded un- and 35 of this chapter (see, in par-
less EPA is satisfied that the public ticular, §§ 30.340, Noncompliance and
participation policies and requirements 30.615–3, Withholding of Payments, and
265
§ 25.13 40 CFR Ch. I (7–1–00 Edition)
subpart H of part 30, Modification, Sus- § 25.14 Termination of reporting re-

pension, and Termination). quirements.
(b) State programs approved in lieu of All reporting requirements specifi-
Federal programs. State compliance cally established by this part will ter-
with applicable public participation re- minate on (5 years from date of publi-
quirements in programs specified in cation) unless EPA acts to extend the
§ 25.2(a) (6) and (7) and administered by requirements beyond that date.
approved States shall be monitored by
EPA during the annual review of the PART 26—PROTECTION OF HUMAN
State’s program, and during any finan- SUBJECTS
cial or program audit or review of
these programs. EPA may withdraw an Sec.
approved program from a State for fail- 26.101 To what does this policy apply?
ure to comply with applicable public 26.102 Definitions.
participation requirements. 26.103 Assuring compliance with this pol-
icy—research conducted or supported by
(c) Other covered programs. Assuring
any Federal Department or Agency.
compliance with these public participa- 26.104–26.106 [Reserved]
tion requirements for programs not 26.107 IRB membership.
covered by paragraphs (a) and (b) of 26.108 IRB functions and operations.
this section is the responsibility of the 26.109 IRB review of research.
Administrator of EPA. Citizens with 26.110 Expedited review procedures for cer-
information concerning alleged failures tain kinds of research involving no more
than minimal risk, and for minor
to comply with the public participation changes in approved research.
requirements should notify the Admin- 26.111 Criteria for IRB approval of research.
istrator. The Administrator will assure 26.112 Review by institution.
that instances of alleged non-compli- 26.113 Suspension or termination of IRB ap-
ance are promptly investigated and proval of research.
that corrective action is taken where 26.114 Cooperative research.
26.115 IRB records.
necessary. 26.116 General requirements for informed
consent.
§ 25.13 Coordination and non-duplica- 26.117 Documentation of informed consent.
tion. 26.118 Applications and proposals lacking
The public participation activities definite plans for involvement of human
subjects.
and materials that are required under
26.119 Research undertaken without the in-
this part should be coordinated or com- tention of involving human subjects.
bined with those of closely related pro- 26.120 Evaluation and disposition of applica-
grams or activities wherever this will tions and proposals for research to be
enhance the economy, the effective- conducted or supported by a Federal De-
ness, or the timeliness of the effort; en- partment or Agency.
26.121 [Reserved]
hance the clarity of the issue; and not
26.122 Use of Federal funds.
be detrimental to participation by the 26.123 Early termination of research sup-
widest possible public. Hearings and port: Evaluation of applications and pro-
meetings on the same matter may be posals.
held jointly by more than one agency 26.124 Conditions.
where this does not conflict with the AUTHORITY: 5 U.S.C. 301; 42 U.S.C. 300v–1(b).
policy of this paragraph. Special ef-
SOURCE: 56 FR 28012, 28022, June 18, 1991,
forts shall be made to coordinate pub- unless otherwise noted.
lic participation procedures under this
part and applicable regulations else- § 26.101 To what does this policy
where in this chapter with environ- apply?
mental assessment and analysis proce- (a) Except as provided in paragraph
dures under 40 CFR part 6. EPA encour- (b) of this section, this policy applies
ages interstate agencies in particular to all research involving human sub-
to develop combined proceedings for jects conducted, supported or otherwise
the States concerned. subject to regulation by any Federal
266
department or agency which takes ap- (3) Research involving the use of edu-
propriate administrative action to cational tests (cognitive, diagnostic,
make the policy applicable to such re- aptitude, achievement), survey proce-
search. This includes research con- dures, interview procedures, or obser-
ducted by Federal civilian employees vation of public behavior that is not
or military personnel, except that each exempt under paragraph (b)(2) of this
department or agency head may adopt section, if:
such procedural modifications as may (i) The human subjects are elected or
be appropriate from an administrative appointed public officials or candidates
standpoint. It also includes research for public office; or
conducted, supported, or otherwise sub- (ii) Federal statute(s) require(s) with-
ject to regulation by the Federal Gov- out exception that the confidentiality
ernment outside the United States. of the personally identifiable informa-
(1) Research that is conducted or sup- tion will be maintained throughout the
ported by a Federal department or research and thereafter.
agency, whether or not it is regulated (4) Research, involving the collection
as defined in § 26.102(e), must comply or study of existing data, documents,
with all sections of this policy. records, pathological specimens, or di-
(2) Research that is neither con- agnostic specimens, if these sources are
ducted nor supported by a Federal de- publicly available or if the information
partment or agency but is subject to is recorded by the investigator in such
regulation as defined in § 26.102(e) must a manner that subjects cannot be iden-
be reviewed and approved, in compli- tified, directly or through identifiers
ance with § 26.101, § 26.102, and § 26.107 linked to the subjects.
through § 26.117 of this policy, by an in- (5) Research and demonstration
stitutional review board (IRB) that op- projects which are conducted by or sub-
erates in accordance with the pertinent ject to the approval of department or
requirements of this policy. agency heads, and which are designed
(b) Unless otherwise required by de- to study, evaluate, or otherwise exam-
partment or agency heads, research ac- ine:
tivities in which the only involvement (i) Public benefit or service pro-
of human subjects will be in one or grams;
more of the following categories are (ii) Procedures for obtaining benefits
exempt from this policy: or services under those programs;
(1) Research conducted in established (iii) Possible changes in or alter-
or commonly accepted educational set- natives to those programs or proce-
tings, involving normal educational dures; or
practices, such as (i) research on reg- (iv) Possible changes in methods or
ular and special education instruc- levels of payment for benefits or serv-
tional strategies, or (ii) research on the ices under those programs.
effectiveness of or the comparison (6) Taste and food quality evaluation
among instructional techniques, cur- and consumer acceptance studies,
ricula, or classroom management (i) If wholesome foods without addi-
methods. tives are consumed or
(2) Research involving the use of edu- (ii) If a food is consumed that con-
cational tests (cognitive, diagnostic, tains a food ingredient at or below the
aptitude, achievement), survey proce- level and for a use found to be safe, or
dures, interview procedures or observa- agricultural chemical or environ-
tion of public behavior, unless: mental contaminant at or below the
(i) Information obtained is recorded level found to be safe, by the Food and
in such a manner that human subjects Drug Administration or approved by
can be identified, directly or through the Environmental Protection Agency
identifiers linked to the subjects; and or the Food Safety and Inspection
(ii) Any disclosure of the human sub- Service of the U.S. Department of Agri-
jects’ responses outside the research culture.
could reasonably place the subjects at (c) Department or agency heads re-
risk of criminal or civil liability or be tain final judgment as to whether a
damaging to the subjects’ financial particular activity is covered by this
standing, employability, or reputation. policy.
267
§ 26.102 40 CFR Ch. I (7–1–00 Edition)
(d) Department or agency heads may policy. Except when otherwise required
require that specific research activities by statute or Executive Order, the de-
or classes of research activities con- partment or agency head shall forward
ducted, supported, or otherwise subject advance notices of these actions to the
to regulation by the department or Office for Protection from Research
agency but not otherwise covered by Risks, Department of Health and
this policy, comply with some or all of Human Services (HHS), and shall also
the requirements of this policy. publish them in the FEDERAL REGISTER
(e) Compliance with this policy re- or in such other manner as provided in
quires compliance with pertinent Fed- department or agency procedures.1
eral laws or regulations which provide [56 FR 28012, 28022, June 18, 1991, 56 FR 29756,
additional protections for human sub- June 28, 1991]
jects.
(f) This policy does not affect any § 26.102 Definitions.
State or local laws or regulations (a) Department or agency head means
which may otherwise be applicable and the head of any Federal department or
which provide additional protections agency and any other officer or em-
for human subjects. ployee of any department or agency to
(g) This policy does not affect any whom authority has been delegated.
foreign laws or regulations which may (b) Institution means any public or
otherwise be applicable and which pro- private entity or agency (including
vide additional protections to human Federal, State, and other agencies).
subjects of research. (c) Legally authorized representative
(h) When research covered by this means an individual or judicial or
policy takes place in foreign countries, other body authorized under applicable
procedures normally followed in the law to consent on behalf of a prospec-
foreign countries to protect human tive subject to the subject’s participa-
subjects may differ from those set tion in the procedure(s) involved in the
forth in this policy. [An example is a research.
foreign institution which complies (d) Research means a systematic in-
with guidelines consistent with the vestigation, including research devel-
World Medical Assembly Declaration opment, testing and evaluation, de-
(Declaration of Helsinki amended 1989) signed to develop or contribute to gen-
issued either by sovereign states or by eralizable knowledge. Activities which
an organization whose function for the meet this definition constitute re-
protection of human research subjects search for purposes of this policy,
is internationally recognized.] In these whether or not they are conducted or
circumstances, if a department or supported under a program which is
agency head determines that the proce- considered research for other purposes.
dures prescribed by the institution af- For example, some demonstration and
ford protections that are at least service programs may include research
equivalent to those provided in this activities.
policy, the department or agency head
may approve the substitution of the
1 Institutions with HHS-approved assur-
foreign procedures in lieu of the proce-
dural requirements provided in this ances on file will abide by provisions of title
45 CFR part 46 subparts A–D. Some of the
policy. Except when otherwise required other Departments and Agencies have incor-
by statute, Executive Order, or the de- porated all provisions of title 45 CFR part 46
partment or agency head, notices of into their policies and procedures as well.
these actions as they occur will be pub- However, the exemptions at 45 CFR 46.101(b)
lished in the FEDERAL REGISTER or will do not apply to research involving prisoners,
be otherwise published as provided in fetuses, pregnant women, or human in vitro
department or agency procedures. fertilization, subparts B and C. The exemp-
(i) Unless otherwise required by law, tion at 45 CFR 46.101(b)(2), for research in-
volving survey or interview procedures or ob-
department or agency heads may waive servation of public behavior, does not apply
the applicability of some or all of the to research with children, subpart D, except
provisions of this policy to specific re- for research involving observations of public
search activities or classes of research behavior when the investigator(s) do not par-
activities otherwise covered by this ticipate in the activities being observed.
268
(e) Research subject to regulation, and other institutional and Federal re-
similar terms are intended to encom- quirements.
pass those research activities for which (i) Minimal risk means that the prob-
a Federal department or agency has ability and magnitude of harm or dis-
specific responsibility for regulating as comfort anticipated in the research are
a research activity, (for example, In- not greater in and of themselves than
vestigational New Drug requirements those ordinarily encountered in daily
administered by the Food and Drug Ad- life or during the performance of rou-
ministration). It does not include re- tine physical or psychological exami-
search activities which are inciden- nations or tests.
tally regulated by a Federal depart- (j) Certification means the official no-
ment or agency solely as part of the de- tification by the institution to the sup-
partment’s or agency’s broader respon- porting department or agency, in ac-
sibility to regulate certain types of accordance with the requirements of this
tivities whether research or non-re- policy, that a research project or activ-
search in nature (for example, Wage ity involving human subjects has been
and Hour requirements administered reviewed and approved by an IRB in ac-
by the Department of Labor). cordance with an approved assurance.
(f) Human subject means a living indi-
vidual about whom an investigator § 26.103 Assuring compliance with this
(whether professional or student) con- policy—research conducted or sup-
ducting research obtains ported by any Federal Department
(1) Data through intervention or or Agency.
interaction with the individual, or (a) Each institution engaged in re-
(2) Identifiable private information. search which is covered by this policy
Intervention includes both physical pro- and which is conducted or supported by
cedures by which data are gathered (for a Federal department or agency shall
example, venipuncture) and manipula- provide written assurance satisfactory
tions of the subject or the subject’s en- to the department or agency head that
vironment that are performed for re- it will comply with the requirements
search purposes. Interaction includes set forth in this policy. In lieu of re-
communication or interpersonal con- quiring submission of an assurance, in-
tact between investigator and subject. dividual department or agency heads
‘‘Private information’’ includes infor- shall accept the existence of a current
mation about behavior that occurs in a assurance, appropriate for the research
context in which an individual can rea- in question, on file with the Office for
sonably expect that no observation or Protection from Research Risks, HHS,
recording is taking place, and informa- and approved for federalwide use by
tion which has been provided for spe- that office. When the existence of an
cific purposes by an individual and HHS-approved assurance is accepted in
which the individual can reasonably lieu of requiring submission of an as-
expect will not be made public (for ex- surance, reports (except certification)
ample, a medical record). Private infor- required by this policy to be made to
mation must be individually identifi- department and agency heads shall
able (i.e., the identity of the subject is also be made to the Office for Protec-
or may readily be ascertained by the tion from Research Risks, HHS.
investigator or associated with the in- (b) Departments and agencies will
formation) in order for obtaining the conduct or support research covered by
information to constitute research in- this policy only if the institution has
volving human subjects. an assurance approved as provided in
(g) IRB means an institutional review this section, and only if the institution
board established in accord with and has certified to the department or
for the purposes expressed in this pol- agency head that the research has been
icy. reviewed and approved by an IRB pro-
(h) IRB approval means the deter- vided for in the assurance, and will be
mination of the IRB that the research subject to continuing review by the
has been reviewed and may be con- IRB. Assurances applicable to federally
ducted at an institution within the supported or conducted research shall
constraints set forth by the IRB and by at a minimum include:
269
§ 26.103 40 CFR Ch. I (7–1–00 Edition)
(1) A statement of principles gov- search activity, and for ensuring that
erning the institution in the discharge such changes in approved research,
of its responsibilities for protecting the during the period for which IRB ap-
rights and welfare of human subjects of proval has already been given, may not
research conducted at or sponsored by be initiated without IRB review and
the institution, regardless of whether approval except when necessary to
the research is subject to Federal regu- eliminate apparent immediate hazards
lation. This may include an appro- to the subject.
priate existing code, declaration, or (5) Written procedures for ensuring
statement of ethical principles, or a prompt reporting to the IRB, appro-
statement formulated by the institu- priate institutional officials, and the
tion itself. This requirement does not department or agency head of (i) any
preempt provisions of this policy appli- unanticipated problems involving risks
cable to department- or agency-sup- to subjects or others or any serious or
ported or regulated research and need continuing noncompliance with this
not be applicable to any research policy or the requirements or deter-
exempted or waived under § 26.101 (b) or minations of the IRB and (ii) any sus-
(i). pension or termination of IRB ap-
(2) Designation of one or more IRBs proval.
established in accordance with the re- (c) The assurance shall be executed
quirements of this policy, and for by an individual authorized to act for
which provisions are made for meeting the institution and to assume on behalf
space and sufficient staff to support of the institution the obligations im-
the IRB’s review and recordkeeping posed by this policy and shall be filed
duties. in such form and manner as the depart-
(3) A list of IRB members identified ment or agency head prescribes.
by name; earned degrees; representa-
(d) The department or agency head
tive capacity; indications of experience
will evaluate all assurances submitted
such as board certifications, licenses,
in accordance with this policy through
etc., sufficient to describe each mem-
such officers and employees of the de-
ber’s chief anticipated contributions to
IRB deliberations; and any employ- partment or agency and such experts
ment or other relationship between or consultants engaged for this purpose
each member and the institution; for as the department or agency head de-
example: full-time employee, part-time termines to be appropriate. The depart-
employee, member of governing panel ment or agency head’s evaluation will
or board, stockholder, paid or unpaid take into consideration the adequacy
consultant. Changes in IRB member- of the proposed IRB in light of the an-
ship shall be reported to the depart- ticipated scope of the institution’s re-
ment or agency head, unless in accord search activities and the types of sub-
with § 26.103(a) of this policy, the exist- ject populations likely to be involved,
ence of an HHS-approved assurance is the appropriateness of the proposed ini-
accepted. In this case, change in IRB tial and continuing review procedures
membership shall be reported to the in light of the probable risks, and the
Office for Protection from Research size and complexity of the institution.
Risks, HHS. (e) On the basis of this evaluation,
(4) Written procedures which the IRB the department or agency head may
will follow (i) for conducting its initial approve or disapprove the assurance, or
and continuing review of research and enter into negotiations to develop an
for reporting its findings and actions to approvable one. The department or
the investigator and the institution; agency head may limit the period dur-
(ii) for determining which projects re- ing which any particular approved as-
quire review more often than annually surance or class of approved assurances
and which projects need verification shall remain effective or otherwise
from sources other than the investiga- condition or restrict approval.
tors that no material changes have oc- (f) Certification is required when the
curred since previous IRB review; and research is supported by a Federal de-
(iii) for ensuring prompt reporting to partment or agency and not otherwise
the IRB of proposed changes in a re- exempted or waived under § 26.101 (b) or
270
(i). An institution with an approved as- category of subjects, such as children,

surance shall certify that each applica- prisoners, pregnant women, or handi-
tion or proposal for research covered capped or mentally disabled persons,
by the assurance and by § 26.103 of this consideration shall be given to the in-
Policy has been reviewed and approved clusion of one or more individuals who
by the IRB. Such certification must be are knowledgeable about and experi-
submitted with the application or pro- enced in working with these subjects.
posal or by such later date as may be (b) Every nondiscriminatory effort
prescribed by the department or agen- will be made to ensure that no IRB
cy to which the application or proposal consists entirely of men or entirely of
is submitted. Under no condition shall women, including the institution’s con-
research covered by § 26.103 of the Pol- sideration of qualified persons of both
icy be supported prior to receipt of the sexes, so long as no selection is made
certification that the research has been to the IRB on the basis of gender. No
reviewed and approved by the IRB. In- IRB may consist entirely of members
stitutions without an approved assur- of one profession.
ance covering the research shall certify (c) Each IRB shall include at least
within 30 days after receipt of a request one member whose primary concerns
for such a certification from the de- are in scientific areas and at least one
partment or agency, that the applica- member whose primary concerns are in
tion or proposal has been approved by nonscientific areas.
the IRB. If the certification is not sub- (d) Each IRB shall include at least
mitted within these time limits, the one member who is not otherwise affili-
application or proposal may be re- ated with the institution and who is
turned to the institution. not part of the immediate family of a
(Approved by the Office of Management and person who is affiliated with the insti-
Budget under control number 9999–0020) tution.
[56 FR 28012, 28022, June 18, 1991, 56 FR 29756,
(e) No IRB may have a member par-
June 28, 1991] ticipate in the IRB’s initial or con-
tinuing review of any project in which
§§ 26.104–26.106 [Reserved] the member has a conflicting interest,
except to provide information re-
§ 26.107 IRB membership. quested by the IRB.
(a) Each IRB shall have at least five (f) An IRB may, in its discretion, in-
members, with varying backgrounds to vite individuals with competence in
promote complete and adequate review special areas to assist in the review of
of research activities commonly con- issues which require expertise beyond
ducted by the institution. The IRB or in addition to that available on the
shall be sufficiently qualified through IRB. These individuals may not vote
the experience and expertise of its with the IRB.
members, and the diversity of the
members, including consideration of § 26.108 IRB functions and operations.
race, gender, and cultural backgrounds In order to fulfill the requirements of
and sensitivity to such issues as com- this policy each IRB shall:
munity attitudes, to promote respect (a) Follow written procedures in the
for its advice and counsel in safe- same detail as described in § 26.103(b)(4)
guarding the rights and welfare of and, to the extent required by,
human subjects. In addition to pos- § 26.103(b)(5).
sessing the professional competence (b) Except when an expedited review
necessary to review specific research procedure is used (see § 26.110), review
activities, the IRB shall be able to as- proposed research at convened meet-
certain the acceptability of proposed ings at which a majority of the mem-
research in terms of institutional com- bers of the IRB are present, including
mitments and regulations, applicable at least one member whose primary
law, and standards of professional con- concerns are in nonscientific areas. In
duct and practice. The IRB shall there- order for the research to be approved,
fore include persons knowledgeable in it shall receive the approval of a ma-
these areas. If an IRB regularly reviews jority of those members present at the
research that involves a vulnerable meeting.
271
§ 26.109 40 CFR Ch. I (7–1–00 Edition)
§ 26.109 IRB review of research. search Risks, National Institutes of

(a) An IRB shall review and have au- Health, HHS, Bethesda, Maryland
thority to approve, require modifica- 20892.
tions in (to secure approval), or dis- (b) An IRB may use the expedited re-
approve all research activities covered view procedure to review either or both
by this policy. of the following:
(b) An IRB shall require that infor- (1) Some or all of the research ap-
mation given to subjects as part of in- pearing on the list and found by the re-
formed consent is in accordance with viewer(s) to involve no more than mini-
§ 26.116. The IRB may require that in- mal risk,
formation, in addition to that specifi- (2) Minor changes in previously ap-
cally mentioned in § 26.116, be given to proved research during the period (of
the subjects when in the IRB’s judg- one year or less) for which approval is
ment the information would meaning- authorized.
fully add to the protection of the rights Under an expedited review procedure,
and welfare of subjects. the review may be carried out by the
(c) An IRB shall require documenta- IRB chairperson or by one or more ex-
tion of informed consent or may waive perienced reviewers designated by the
documentation in accordance with chairperson from among members of
§ 26.117. the IRB. In reviewing the research, the
(d) An IRB shall notify investigators reviewers may exercise all of the au-
and the institution in writing of its de- thorities of the IRB except that the re-
cision to approve or disapprove the pro- viewers may not disapprove the re-
posed research activity, or of modifica- search. A research activity may be dis-
tions required to secure IRB approval approved only after review in accord-
of the research activity. If the IRB de- ance with the non-expedited procedure
cides to disapprove a research activity, set forth in § 26.108(b).
it shall include in its written notifica- (c) Each IRB which uses an expedited
tion a statement of the reasons for its review procedure shall adopt a method
decision and give the investigator an for keeping all members advised of re-
opportunity to respond in person or in search proposals which have been ap-
writing. proved under the procedure.
(e) An IRB shall conduct continuing (d) The department or agency head
review of research covered by this pol- may restrict, suspend, terminate, or
icy at intervals appropriate to the de- choose not to authorize an institu-
gree of risk, but not less than once per tion’s or IRB’s use of the expedited re-
year, and shall have authority to ob- view procedure.
serve or have a third party observe the
consent process and the research. § 26.111 Criteria for IRB approval of
research.
Budget under control number 9999–0020) (a) In order to approve research cov-
ered by this policy the IRB shall deter-
§ 26.110 Expedited review procedures mine that all of the following require-
for certain kinds of research involv- ments are satisfied:
ing no more than minimal risk, and (1) Risks to subjects are minimized:
for minor changes in approved re- (i) By using procedures which are con-
search. sistent with sound research design and
(a) The Secretary, HHS, has estab- which do not unnecessarily expose sub-
lished, and published as a Notice in the jects to risk, and (ii) whenever appro-
FEDERAL REGISTER, a list of categories priate, by using procedures already
of research that may be reviewed by being performed on the subjects for di-
the IRB through an expedited review agnostic or treatment purposes.
procedure. The list will be amended, as (2) Risks to subjects are reasonable
appropriate after consultation with in relation to anticipated benefits, if
other departments and agencies, any, to subjects, and the importance of
through periodic republication by the the knowledge that may reasonably be
Secretary, HHS, in the FEDERAL REG- expected to result. In evaluating risks
ISTER. A copy of the list is available and benefits, the IRB should consider
from the Office for Protection from Re- only those risks and benefits that may
272
result from the research (as distin- § 26.113 Suspension or termination of

guished from risks and benefits of IRB approval of research.
therapies subjects would receive even if An IRB shall have authority to sus-
not participating in the research). The pend or terminate approval of research
IRB should not consider possible long- that is not being conducted in accord-
range effects of applying knowledge ance with the IRB’s requirements or
gained in the research (for example, that has been associated with unex-
the possible effects of the research on pected serious harm to subjects. Any
public policy) as among those research suspension or termination of approval
risks that fall within the purview of its shall include a statement of the rea-
responsibility. sons for the IRB’s action and shall be
(3) Selection of subjects is equitable. reported promptly to the investigator,
In making this assessment the IRB appropriate institutional officials, and
should take into account the purposes the department or agency head.
of the research and the setting in
which the research will be conducted
and should be particularly cognizant of
the special problems of research in- § 26.114 Cooperative research.
volving vulnerable populations, such as
children, prisoners, pregnant women, Cooperative research projects are
mentally disabled persons, or economi- those projects covered by this policy
cally or educationally disadvantaged which involve more than one institu-
persons. tion. In the conduct of cooperative re-
search projects, each institution is re-
(4) Informed consent will be sought
sponsible for safeguarding the rights
from each prospective subject or the
and welfare of human subjects and for
subject’s legally authorized representa-
complying with this policy. With the
tive, in accordance with, and to the ex-
approval of the department or agency
tent required by § 26.116.
head, an institution participating in a
(5) Informed consent will be appro- cooperative project may enter into a
priately documented, in accordance joint review arrangement, rely upon
with, and to the extent required by the review of another qualified IRB, or
§ 26.117. make similar arrangements for avoid-
(6) When appropriate, the research ing duplication of effort.
plan makes adequate provision for
monitoring the data collected to en- § 26.115 IRB records.
sure the safety of subjects. (a) An institution, or when appro-
(7) When appropriate, there are ade- priate an IRB, shall prepare and main-
quate provisions to protect the privacy tain adequate documentation of IRB
of subjects and to maintain the con- activities, including the following:
fidentiality of data. (1) Copies of all research proposals re-
(b) When some or all of the subjects viewed, scientific evaluations, if any,
are likely to be vulnerable to coercion that accompany the proposals, ap-
or undue influence, such as children, proved sample consent documents,
prisoners, pregnant women, mentally progress reports submitted by inves-
disabled persons, or economically or tigators, and reports of injuries to sub-
educationally disadvantaged persons, jects.
additional safeguards have been in- (2) Minutes of IRB meetings which
cluded in the study to protect the shall be in sufficient detail to show at-
rights and welfare of these subjects. tendance at the meetings; actions
taken by the IRB; the vote on these ac-
§ 26.112 Review by institution. tions including the number of members
Research covered by this policy that voting for, against, and abstaining; the
has been approved by an IRB may be basis for requiring changes in or dis-
subject to further appropriate review approving research; and a written sum-
and approval or disapproval by officials mary of the discussion of controverted
of the institution. However, those offi- issues and their resolution.
cials may not approve the research if it (3) Records of continuing review ac-
has not been approved by an IRB. tivities.
273
§ 26.116 40 CFR Ch. I (7–1–00 Edition)
(4) Copies of all correspondence be- purposes of the research and the ex-
tween the IRB and the investigators. pected duration of the subject’s partici-
(5) A list of IRB members in the same pation, a description of the procedures
detail as described is § 26.103(b)(3). to be followed, and identification of
(6) Written procedures for the IRB in any procedures which are experi-
the same detail as described in mental;
§ 26.103(b)(4) and § 26.103(b)(5). (2) A description of any reasonably
(7) Statements of significant new foreseeable risks or discomforts to the
findings provided to subjects, as re- subject;
quired by § 26.116(b)(5). (3) A description of any benefits to
(b) The records required by this pol- the subject or to others which may rea-
icy shall be retained for at least 3 sonably be expected from the research;
years, and records relating to research
(4) A disclosure of appropriate alter-
which is conducted shall be retained
for at least 3 years after completion of native procedures or courses of treat-
the research. All records shall be acces- ment, if any, that might be advan-
sible for inspection and copying by au- tageous to the subject;
thorized representatives of the depart- (5) A statement describing the ex-
ment or agency at reasonable times tent, if any, to which confidentiality of
and in a reasonable manner. records identifying the subject will be
maintained;
(Approved by the Office of Management and (6) For research involving more than
minimal risk, an explanation as to
§ 26.116 General requirements for in- whether any compensation and an ex-
formed consent. planation as to whether any medical
treatments are available if injury oc-
Except as provided elsewhere in this
curs and, if so, what they consist of, or
policy, no investigator may involve a
where further information may be ob-
human being as a subject in research
tained;
covered by this policy unless the inves-
tigator has obtained the legally effec- (7) An explanation of whom to con-
tive informed consent of the subject or tact for answers to pertinent questions
the subject’s legally authorized rep- about the research and research sub-
resentative. An investigator shall seek jects’ rights, and whom to contact in
such consent only under circumstances the event of a research-related injury
that provide the prospective subject or to the subject; and
the representative sufficient oppor- (8) A statement that participation is
tunity to consider whether or not to voluntary, refusal to participate will
participate and that minimize the pos- involve no penalty or loss of benefits to
sibility of coercion or undue influence. which the subject is otherwise entitled,
The information that is given to the and the subject may discontinue par-
subject or the representative shall be ticipation at any time without penalty
in language understandable to the sub- or loss of benefits to which the subject
ject or the representative. No informed is otherwise entitled.
consent, whether oral or written, may (b) Additional elements of informed
include any exculpatory language consent. When appropriate, one or
through which the subject or the rep- more of the following elements of in-
resentative is made to waive or appear formation shall also be provided to
to waive any of the subject’s legal each subject:
rights, or releases or appears to release (1) A statement that the particular
the investigator, the sponsor, the insti- treatment or procedure may involve
tution or its agents from liability for risks to the subject (or to the embryo
negligence. or fetus, if the subject is or may be-
(a) Basic elements of informed con- come pregnant) which are currently
sent. Except as provided in paragraph unforeseeable;
(c) or (d) of this section, in seeking in- (2) Anticipated circumstances under
formed consent the following informa- which the subject’s participation may
tion shall be provided to each subject: be terminated by the investigator
(1) A statement that the study in- without regard to the subject’s con-
volves research, an explanation of the sent;
274
(3) Any additional costs to the sub- to preempt any applicable Federal,
ject that may result from participation State, or local laws which require addi-
in the research; tional information to be disclosed in
(4) The consequences of a subject’s order for informed consent to be le-
decision to withdraw from the research gally effective.
and procedures for orderly termination (f) Nothing in this policy is intended
of participation by the subject; to limit the authority of a physician to
(5) A statement that significant new provide emergency medical care, to the
findings developed during the course of extent the physician is permitted to do
the research which may relate to the so under applicable Federal, State, or
subject’s willingness to continue par- local law.
ticipation will be provided to the sub-
ject; and (Approved by the Office of Management and
(6) The approximate number of sub-
jects involved in the study. § 26.117 Documentation of informed
(c) An IRB may approve a consent consent.
procedure which does not include, or
which alters, some or all of the ele- (a) Except as provided in paragraph
ments of informed consent set forth (c) of this section, informed consent
above, or waive the requirement to ob- shall be documented by the use of a
tain informed consent provided the IRB written consent form approved by the
finds and documents that: IRB and signed by the subject or the
(1) The research or demonstration subject’s legally authorized representa-
project is to be conducted by or subject tive. A copy shall be given to the per-
to the approval of State or local gov- son signing the form.
ernment officials and is designed to (b) Except as provided in paragraph
study, evaluate, or otherwise examine: (c) of this section, the consent form
(i) Public benefit of service programs; may be either of the following:
(ii) procedures for obtaining benefits or (1) A written consent document that
services under those programs; (iii) embodies the elements of informed
possible changes in or alternatives to consent required by § 26.116. This form
those programs or procedures; or (iv) may be read to the subject or the sub-
possible changes in methods or levels ject’s legally authorized representa-
of payment for benefits or services tive, but in any event, the investigator
under those programs; and shall give either the subject or the rep-
(2) The research could not prac- resentative adequate opportunity to
ticably be carried out without the read it before it is signed; or
waiver or alteration. (2) A short form written consent doc-
(d) An IRB may approve a consent ument stating that the elements of in-
procedure which does not include, or formed consent required by § 26.116
which alters, some or all of the ele- have been presented orally to the sub-
ments of informed consent set forth in ject or the subject’s legally authorized
this section, or waive the requirements representative. When this method is
to obtain informed consent provided used, there shall be a witness to the
the IRB finds and documents that: oral presentation. Also, the IRB shall
(1) The research involves no more approve a written summary of what is
than minimal risk to the subjects; to be said to the subject or the rep-
(2) The waiver or alteration will not resentative. Only the short form itself
adversely affect the rights and welfare is to be signed by the subject or the
of the subjects; representative. However, the witness
(3) The research could not prac- shall sign both the short form and a
ticably be carried out without the copy of the summary, and the person
waiver or alteration; and actually obtaining consent shall sign a
(4) Whenever appropriate, the sub- copy of the summary. A copy of the
jects will be provided with additional summary shall be given to the subject
pertinent information after participa- or the representative, in addition to a
tion. copy of the short form.
(e) The informed consent require- (c) An IRB may waive the require-
ments in this policy are not intended ment for the investigator to obtain a
275
§ 26.118 40 CFR Ch. I (7–1–00 Edition)
signed consent form for some or all § 26.119 Research undertaken without
subjects if it finds either: the intention of involving human
(1) That the only record linking the subjects.
subject and the research would be the In the event research is undertaken
consent document and the principal without the intention of involving
risk would be potential harm resulting human subjects, but it is later pro-
from a breach of confidentiality. Each posed to involve human subjects in the
subject will be asked whether the sub- research, the research shall first be re-
ject wants documentation linking the viewed and approved by an IRB, as pro-
subject with the research, and the sub- vided in this policy, a certification sub-
ject’s wishes will govern; or mitted, by the institution, to the de-
partment or agency, and final approval
(2) That the research presents no
given to the proposed change by the de-
more than minimal risk of harm to
partment or agency.
subjects and involves no procedures for
which written consent is normally re- § 26.120 Evaluation and disposition of
quired outside of the research context. applications and proposals for re-
search to be conducted or sup-
In cases in which the documentation ported by a Federal Department or
requirement is waived, the IRB may re- Agency.
quire the investigator to provide sub-
The department or agency head will
jects with a written statement regard- evaluate all applications and proposals
ing the research. involving human subjects submitted to
(Approved by the Office of Management and the department or agency through such
Budget under control number 9999–0020) officers and employees of the depart-
ment or agency and such experts and
§ 26.118 Applications and proposals consultants as the department or agen-
lacking definite plans for involve- cy head determines to be appropriate.
ment of human subjects. This evaluation will take into consid-
Certain types of applications for eration the risks to the subjects, the
grants, cooperative agreements, or con- adequacy of protection against these
tracts are submitted to departments or risks, the potential benefits of the re-
agencies with the knowledge that sub- search to the subjects and others, and
jects may be involved within the period the importance of the knowledge
gained or to be gained.
of support, but definite plans would not
(b) On the basis of this evaluation,
normally be set forth in the applica- the department or agency head may
tion or proposal. These include activi- approve or disapprove the application
ties such as institutional type grants or proposal, or enter into negotiations
when selection of specific projects is to develop an approvable one.
the institution’s responsibility; re-
search training grants in which the ac- § 26.121 [Reserved]
tivities involving subjects remain to be
selected; and projects in which human § 26.122 Use of Federal funds.
subjects’ involvement will depend upon Federal funds administered by a de-
completion of instruments, prior ani- partment or agency may not be ex-
mal studies, or purification of com- pended for research involving human
pounds. These applications need not be subjects unless the requirements of
reviewed by an IRB before an award this policy have been satisfied.
may be made. However, except for re- § 26.123 Early termination of research
search exempted or waived under support: Evaluation of applications
§ 26.101 (b) or (i), no human subjects and proposals.
may be involved in any project sup- (a) The department or agency head
ported by these awards until the may require that department or agency
project has been reviewed and approved support for any project be terminated
by the IRB, as provided in this policy, or suspended in the manner prescribed
and certification submitted, by the in- in applicable program requirements,
stitution, to the department or agency. when the department or agency head
finds an institution has materially
276
failed to comply with the terms of this 27.22 Exchange of witness lists, statements,
policy. and exhibits.
(b) In making decisions about sup- 27.23 Subpoenas for attendance at hearing.
porting or approving applications or 27.24 Protective order.
proposals covered by this policy the de- 27.25 Fees.
partment or agency head may take 27.26 Form, filing and service of papers.
into account, in addition to all other 27.27 Computation of time.
eligibility requirements and program 27.28 Motions.
criteria, factors such as whether the 27.29 Sanctions.
27.30 The hearing and burden of proof.
applicant has been subject to a termi-
27.31 Determining the amount of penalties
nation or suspension under paragraph
and assessments.
(a) of this section and whether the ap-
27.32 Location of hearing.
plicant or the person or persons who 27.33 Witnesses.
would direct or has have directed the 27.34 Evidence.
scientific and technical aspects of an 27.35 The record.
activity has have, in the judgment of 27.36 Post-hearing briefs.
the department or agency head, mate- 27.37 Initial decision.
rially failed to discharge responsibility 27.38 Reconsideration of initial decision.
for the protection of the rights and 27.39 Appeal to authority head.
welfare of human subjects (whether or 27.40 Stay ordered by the Department of
not the research was subject to Federal Justice.
regulation). 27.41 Stay pending appeal.
27.42 Judicial review.
§ 26.124 Conditions. 27.43 Collection of civil penalties and as-
With respect to any research project sessments.
or any class of research projects the de- 27.44 Right to administrative offset.
partment or agency head may impose 27.45 Deposit in Treasury of United States.
additional conditions prior to or at the 27.46 Compromise or settlement.
time of approval when in the judgment 27.47 Limitations.
of the department or agency head addi- 27.48 Delegated functions.
tional conditions are necessary for the AUTHORITY: 31 U.S.C. 3801–3812; Pub. L. 101–
protection of human subjects. 410, 104 Stat. 890, 28 U.S.C. 2461 note; Pub. L.
104–134, 110 Stat. 1321, 31 U.S.C. 3701 note.
PART 27—PROGRAM FRAUD CIVIL SOURCE: 53 FR 15182, Apr. 27, 1988, unless
REMEDIES otherwise noted.
Sec. § 27.1 Basis and purpose.

27.1 Basis and purpose. (a) Basis. This part implements the
27.2 Definitions.
27.3 Basis for civil penalties and assess-
Program Fraud Civil Remedies Act of
ments. 1986, Public Law No. 99–509, sections
27.4 Investigation. 6101–6104, 100 Stat. 1874 (October 21,
27.5 Review by the reviewing official. 1986), to be codified at 31 U.S.C. 3801–
27.6 Prerequisites for issuing a complaint. 3812. 31 U.S.C. 3809 of the statute re-
27.7 Complaint. quires each authority head to promul-
27.8 Service of complaint. gate regulations necessary to imple-
27.9 Answer. ment the provisions of the statute.
27.10 Default upon failure to file an answer.
27.11 Referral of complaint and answer to (b) Purpose. This part (1) establishes
the presiding officer. administrative procedures for imposing
27.12 Notice of hearing. civil penalties and assessments against
27.13 Parties to the hearing. persons who make, submit, or present,
27.14 Separation of functions. or cause to be made, submitted, or pre-
27.15 Ex parte contacts. sented, false, fictitious, or fraudulent
27.16 Disqualification of the reviewing offi- claims or written statements to the
cial or presiding officer.
27.17 Rights of parties.
Environmental Protection Agency, and
27.18 Authority of the presiding officer. (2) specifies the hearing and appeal
27.19 Prehearing conferences. rights of persons subject to allegations
27.20 Disclosure of documents. of liability for such penalties and as-
27.21 Discovery. sessments.
277
§ 27.2 40 CFR Ch. I (7–1–00 Edition)
§ 27.2 Definitions. Environmental Appeals Board means

the Board within the Agency described
Administrative Law Judge means an
in § 1.25 of this title.
administrative law judge in the Au-
Government means the United States
thority appointed pursuant to 5 U.S.C.
Government.
3105 or detailed to the Authority pursu- Hearing Clerk means the Hearing
ant to 5 U.S.C. 3344. Clerk, A–110, United States Environ-
Administrator means the Adminis- mental Protection Agency, 401 M St.
trator of the United States Environ- SW., Washington, DC 20460.
mental Protection Agency. Individual means a natural person.
Authority means the United States Initial decision means the written de-
Environmental Protection Agency. cision of the presiding officer required
Benefit means, in the context of by § 27.10 or § 27.37, and includes a re-
‘‘statement,’’ anything of value, in- vised initial decision issued following a
cluding but not limited to any advan- remand or a motion for reconsider-
tage, preference, privilege, license, per- ation.
mit, favorable decision, ruling, status, Investigating official means the In-
or loan guarantee. spector General of the United States
Claim means any request, demand, or Environmental Protection Agency or
submission— an officer or employee of the Office of
(a) Made to the Authority for prop- Inspector General designated by the In-
erty, services, or money (including spector General and serving in a posi-
money representing grants, loans, in- tion for which the rate of basic pay is
surance, or benefits); not less than the minimum rate of
(b) Made to a recipient of property, basic pay for grade GS–16 under the
services, or money from the Authority General Schedule.
or to a party to a contract with the Au- Knows or has reason to know means
thority— that a person, with respect to a claim
(1) For property or services if the or statement—
United States— (a) Has actual knowledge that the
(i) Provided such property or serv- claim or statement is false, fictitious,
ices; or fraudulent;
(ii) Provided any portion of the funds (b) Acts in deliberate ignorance of
for the purchase of such property or the truth or falsity of the claim or
services; or statement; or
(c) Acts in reckless disregard of the
(iii) Will reimburse such recipient or
truth or falsity of the claim or state-
party for the purchase of such property
ment.
or services; or
Makes, wherever it appears, shall in-
(2) For the payment of money (in-
clude the terms presents, submits, and
cluding money representing grants,
causes to be made, presented, or sub-
loans, insurance, or benefits) if the
mitted. As the context requires, making
United States—
or made shall likewise include the cor-
(i) Provided any portion of the money responding forms of such terms.
requested or demanded; or Person means any individual, part-
(ii) Will reimburse such recipient or nership, corporation, association, or
party for any portion of the money private organization, and includes the
paid on such request or demand; or plural of those terms.
(c) Made to the Authority which has Presiding officer means the adminis-
the effect of decreasing an obligation trative law judge designated by the
to pay or account for property, serv- Chief administrative law judge to serve
ices, or money. as presiding officer.
Complaint means the administrative Representative means an attorney who
complaint served by the reviewing offi- is a member in good standing of the bar
cial on the defendant under § 27.7. of any State, Territory, or possession
Defendant means any person alleged of the United States or of the District
in a complaint under § 27.7 to be liable of Columbia or the Commonwealth of
for a civil penalty or assessment under Puerto Rico, or other representative
§ 27.3. who must conform to the standards of
278
conduct and ethics required of practi- (B) Is false, fictitious, or fraudulent

tioners before the courts of the United as a result of such omission; and
States. (C) Is a statement in which the per-
Reviewing official means the General son making such statement has a duty
Counsel of the Authority or his des- to include such material fact; or
ignee who is— (iv) Is for payment for the provision
(a) Not subject to supervision by, or of property or services which the per-
required to report to, the investigating son has not provided as claimed, shall
official; be subject, in addition to any other
(b) Not employed in the organiza- remedy that may be prescribed by law,
tional unit of the Authority in which to a civil penalty of not more than
the investigating official is employed; $5,500 1 for each such claim.
and (2) Each voucher, invoice, claim
(c) Serving in a position for which form, or other individual request or de-
the rate of basic pay is not less than mand for property, services, or money
the minimum rate of basic pay for constitutes a separate claim.
grade GS–16 under the General Sched- (3) A claim shall be considered made
ule. to the Authority, recipient, or party
Statement means any representation, when such claim is actually made to an
certification, affirmation, document, an agent, fiscal intermediary, or other
record, or accounting or bookkeeping entity, including any State or political
entry made— subdivision thereof, acting for or on be-
(a) With respect to a claim or to ob- half of the Authority, recipient, or
tain the approval or payment of a party.
claim (including relating to eligibility (4) Each claim for property, services,
to make a claim); or or money is subject to a civil penalty
(b) With respect to (including relat- regardless of whether such property,
ing to eligibility for)— services, or money is actually delivered
(1) A contract with, or a bid or pro- or paid.
posal for a contract with; or (5) If the Government has made any
(2) A grant, loan, or benefit from, payment (including transferred prop-
the Authority, or any State, political erty or provided services) on a claim, a
subdivision of a State, or other party, person subject to a civil penalty under
if the United States Government pro- paragraph (a)(1) of this section, shall
vides any portion of the money or prop- also be subject to an assessment of not
erty under such contract or for such more than twice the amount of such
grant, loan, or benefit, or if the Gov- claim or that portion thereof that is
ernment will reimburse such State, po- determined to be in violation of para-
litical subdivision, or party for any graph (a)(1) of this section. Such as-
portion of the money or property under sessment shall be in lieu of damages
such contract or for such grant, loan, sustained by the Government because
or benefit. of such claim.
[45 FR 24363, Apr. 9, 1980, as amended at 57 (b) Statements. (1) Except as provided
FR 5326, Feb. 13, 1992] in paragraph (c) of this section, any
person who makes a written statement
§ 27.3 Basis for civil penalties and as- that—
sessments. (i) The person knows or has reason to
(a) Claims. (1) Except as provided in know—
paragraph (c) of this section, any per- (A) Asserts a material fact which is
son who makes a claim that the person false, factitious, or fraudulent; or
knows or has reason to know— (B) Is false, factitious, or fraudulent
(i) Is false, fictitious, or fraudulent; because it omits a material fact that
(ii) Includes or is supported by any
written statement which asserts a ma- 1 As adjusted in accordance with the Fed-
terial fact which is false, fictitious, or eral Civil Penalties Inflation Adjustment
fraudulent; Act of 1990 (Pub. L. 101–410, 104 Stat. 890), as
(iii) Includes, or is supported by, any amended by the Debt Collection Improve-
written statement that— ment Act of 1996 (Pub. L. 104–134, 110 Stat.
(A) Omits a material fact; 1321).
279
§ 27.4 40 CFR Ch. I (7–1–00 Edition)
the person making the statement has a (2) The investigating official may
duty to include in such statement; and designate a person to act on his or her
(ii) Contains, or is accompanied by, behalf to receive the documents
an express certification or affirmation sought; and
of the truthfulness and accuracy of the (3) The person receiving such sub-
contents of the statement, shall be subpoena shall be required to tender to the
ject, in addition to any other remedy investigating official or the person des-
that may be prescribed by law, to a ignated to receive the documents a cer-
civil penalty of not more than $5,500 2 tification that the documents sought
for each such statement. have been produced, or that such docu-
(2) Each written representation, cer- ments are not available and the rea-
tification, or affirmation constitutes a sons therefor, or that such documents,
separate statement. suitably identified, have been withheld
(3) A statement shall be considered based upon the assertion of an identi-
made to the Authority when such fied privilege.
statement is actually made to an (b) If the investigating official con-
agent, fiscal intermediary, or other en- cludes that an action under the Pro-
tity, including any State or political gram Fraud Civil Remedies Act may be
subdivision thereof, acting for or on be- warranted, the investigating official
half of such Authority. shall submit a report containing the
(c) No proof of specific intent to de- findings and conclusions of such inves-
fraud is required to establish liability tigation to the reviewing official.
under this section. (c) Nothing in this section shall pre-
(d) In any case in which it is deter- clude or limit an investigating offi-
mined that more than one person is lia- cial’s discretion to defer or postpone a
ble for making a claim or statement report or referral to the reviewing offi-
under this section, each such person cial to avoid interference with a crimi-
may be held liable for a civil penalty nal investigation or prosecution.
under this section. (d) Nothing in this section modifies
(e) In any case in which it is deter- any responsibility of an investigating
mined that more than one person is lia- official to report violations of criminal
ble for making a claim under this sec- law to the Attorney General.
tion on which the Government has
made payment (including transferred § 27.5 Review by the reviewing official.
property or provided services), an as-
sessment may be imposed against any (a) If, based on the report of the in-
such person or jointly and severally vestigating official under § 27.4(b), the
against any combination of such per- reviewing official determines that
sons. there is adequate evidence to believe
that a person is liable under § 27.3 of
[53 FR 15182, Apr. 27, 1988, as amended at 61 this part, the reviewing official shall
FR 69366, Dec. 31, 1996] transmit to the Attorney General a
written notice of the reviewing offi-
§ 27.4 Investigation.
cial’s intention to issue a complaint
(a) If the investigating official con- under § 27.7.
cludes that a subpoena pursuant to the (b) Such notice shall include—
authority conferred by 31 U.S.C. 3804(a) (1) A statement of the reviewing offi-
is warranted— cial’s reasons for issuing a complaint;
(1) The subpoena so issued shall no- (2) A statement specifying the evi-
tify the person to whom it is addressed dence that supports the allegations of
of the authority under which the sub- liability;
poena is issued and shall identify the
(3) A description of the claims or
records or documents sought;
statements upon which the allegations
2 As adjusted in accordance with the Fed-
of liability are based;
eral Civil Penalties Inflation Adjustment
(4) An estimate of the amount of
Act of 1990 (Pub. L. 101–410, 104 Stat. 890), as money or the value of property, serv-
amended by the Debt Collection Improve- ices, or other benefits requested or de-
ment Act of 1996 (Pub. L. 104–134, 110 Stat. manded in violation of § 27.3 of this
1321). part;
280
(5) A statement of any exculpatory or ity, and the reasons why liability alleg-
mitigating circumstances that may re- edly arises from such claims or state-
late to the claims or statements known ments;
by the reviewing official or the inves- (2) The maximum amount of pen-
tigating official; and alties and assessments for which the
(6) A statement that there is a rea- defendant may be held liable;
sonable prospect of collecting an ap- (3) Instructions for filing an answer
propriate amount of penalties and as- to request a hearing, including a spe-
sessments. cific statement of the defendant’s right
to request a hearing by filing an an-
§ 27.6 Prerequisites for issuing a com- swer and to be represented by a rep-
plaint.
resentative; and
(a) The reviewing official may issue a (4) That failure to file an answer
complaint under § 27.7 only if— within 30 days of service of the com-
(1) The Department of Justice ap- plaint will result in the imposition of
proves the issuance of a complaint in the maximum amount of penalties and
written statement described in 31 assessments without right to appeal as
U.S.C. 3803(b)(1), and provided in § 27.10.
(2) In the case of allegations of liabil- (c) At the same time the reviewing
ity under § 27.3(a) with respect to a official serves the complaint, he or she
claim, the reviewing official deter- shall serve the defendant with a copy
mines that, with respect to such claim of these regulations.
or a group of related claims submitted
at the same time such claim is sub- § 27.8 Service of complaint.
mitted (as defined in paragraph (b) of
(a) Service of a complaint must be
this section), the amount of money or
made by certified or registered mail or
the value of property or services de-
by delivery in any manner authorized
manded or requested in violation of
by Rule 4(d) of the Federal Rules of
§ 27.3(a) does not exceed $150,000.
Civil Procedure. Service is complete
(b) For the purposes of this section, a
upon receipt.
related group of claims submitted at
(b) Proof of service, stating the name
the same time shall include only those
and address of the person on whom the
claims arising from the same trans-
complaint was served, and the manner
action (e.g., grant, loan, application, or
and date of service, may be made by—
contract) that are submitted simulta-
neously as part of a single request, de- (1) Affidavit of the individual serving
mand, or submission. the complaint by delivery;
(c) Nothing in this section shall be (2) A United States Postal Service re-
construed to limit the reviewing offi- turn receipt card acknowledging re-
cial’s authority to join in a single com- ceipt; or
plaint against a person, claims that are (3) Written acknowledgment of re-
unrelated or were not submitted simul- ceipt by the defendant or his or her
taneously, regardless of the amount of representative.
money, or the value of property or
§ 27.9 Answer.
services, demanded or requested.
(a) The defendant may request a
§ 27.7 Complaint. hearing by filing an answer with the
(a) On or after the date the Depart- reviewing official within 30 days of
ment of Justice approves the issuance service of the complaint. An answer
of a complaint in accordance with 31 shall be deemed to be a request for
U.S.C. 3803(b)(1), the reviewing official hearing.
may serve a complaint on the defend- (b) In the answer, the defendant—
ant, as provided in § 27.8. (1) Shall admit or deny each of the
(b) The complaint shall state— allegations of liability made in the
(1) The allegations of liability complaint;
against the defendant, including the (2) Shall state any defense on which
statuory basis for liability, an identi- the defendant intends to rely;
fication of the claims or statements (3) May state any reasons why the de-
that are the basis for the alleged liabil- fendant contends that the penalties
281
§ 27.10 40 CFR Ch. I (7–1–00 Edition)
and assessments should be less than (e) If, before such an initial decision
the statutory maximum; and becomes final, the defendant files a
(4) Shall state the name, address, and motion seeking to reopen on the
telephone number of the person author- grounds that extraordinary cir-
ized by the defendant to act as defend- cumstances prevented the defendant
ant’s representative, if any. from filing an answer, the initial deci-
(c) If the defendant is unable to file sion shall be stayed pending the pre-
an answer meeting the requirements of siding officer’s decision on the motion.
paragraph (b) of this section within the (f) If, on such motion, the defendant
time provided, the defendant may, be- can demonstrate extraordinary cir-
fore the expiration of 30 days from cumstances excusing the failure to file
service of the complaint, file with the a timely answer, the presiding officer
reviewing official a general answer de- shall withdraw the initial decision in
nying liability and requesting a hear- paragraph (c) of this section, if such a
ing, and a request for an extension of decision has been issued, and shall
time within which to file an answer grant the defendant an opportunity to
meeting requirements of paragraph (b) answer the complaint.
of this section. The reviewing official
(g) A decision of the presiding officer
shall file promptly with the hearing
denying a defendant’s motion under
clerk the complaint, the general an-
swer denying liability, and the request paragraph (e) of this section, is not
for an extension of time as provided in subject to reconsideration under § 27.38.
§ 27.11. Upon assignment to a presiding (h) The defendant may appeal to the
officer, the presiding officer may, for Environmental Appeals Board the deci-
good cause shown, grant the defendant sion denying a motion to reopen by fil-
up to 30 additional days within which ing a notice of appeal within 15 days
to file an answer meeting the require- after the presiding officer denies the
ments of paragraph (b) of this section. section. The timely filing of a notice of
appeal shall stay the initial decision
§ 27.10 Default upon failure to file an the Environmental Appeals Board de-
answer. cides the issue.
(a) If the defendant does not file an (i) If the defendant files a timely no-
answer within the time prescribed in tice of appeal, the presiding officer
§ 27.9(a), the reviewing official may file shall forward the record of the pro-
the complaint with the hearing clerk ceeding to the Environmental Appeals
as provided in § 27.11. Board.
(b) Upon assignment of the complaint (j) The Environmental Appeals Board
to a presiding officer, the presiding of- shall decide expeditiously whether ex-
ficer shall promptly serve on defendant traordinary circumstances excuse the
in the manner prescribed in § 27.8, a no- defendant’s failure to file a timely an-
tice that an initial decision will be swer based solely on the record before
issued under this section. the presiding officer.
(c) The presiding officer shall assume (k) If the Environmental Appeals
the facts alleged in the complaint to be Board decides that extraordinary cir-
true, and, if such facts establish liabil- cumstances excused the defendant’s
ity under § 27.3, the presiding officer failure to file a timely answer, the En-
shall issue an initial decision imposing vironmental Appeals Board shall re-
the maximum amount of penalties and mand the case to the presiding officer
assessments allowed under the statute. with instructions to grant the defend-
(d) Except as otherwise provided in ant an opportunity to answer.
this section, by failing to file a timely
(l) If the Environmental Appeals
answer, the defendant waives any right
Board decides that the defendant’s fail-
to further review of the penalties and
assessments imposed under paragraph ure to file a timely answer is not ex-
(c) of this section, and the initial deci- cused, the Environmental Appeals
sion shall become final and binding Board shall reinstate the initial deci-
upon the parties 30 days after it is sion of the presiding officer, which
issued. shall become final and binding upon
282
the parties 30 days after the Environ- proceedings to the extent authorized
mental Appeals Board issues such deci- by the provisions of that Act.
sion.
§ 27.14 Separation of functions.
FR 5326, Feb. 13, 1992] (a) The investigating official, the re-
viewing official, and any employee or
§ 27.11 Referral of complaint and an- agent of the Authority who takes part
swer to the presiding officer. in investigating, preparing, or pre-
(a) Upon receipt of an answer, the resenting a particular case, may not, in
viewing official shall file the complaint such case or a factually related case—
and answer with the hearing clerk. (1) Participate in the hearing as the
(b) The hearing clerk shall forward presiding officer;
the complaint and answer to the Chief (2) Participate or advise in the initial
administrative law judge who shall as- decision or the review of the initial de-
sign himself or herself or another ad- cision by the Environmental Appeals
ministrative law judge as presiding of- Board, except as a witness or rep-
ficer. The presiding officer shall then resentative in public proceedings; or
obtain the complaint and answer from (3) Make the collection of penalties
the Chief administrative law judge and and assessments under 31 U.S.C. 3806.
notify the parties of his or her assign- (b) Neither the presiding officer nor
ment. the members of the Environmental Ap-
peals Board shall be responsible to, or
§ 27.12 Notice of hearing. subject to, the supervision or direction
(a) When the presiding officer obtains of the investigating official or the re-
the complaint and answer, the pre- viewing official.
siding officer shall promptly serve a (c) Except as provided in paragraph
notice of hearing upon the defendant in (a) of this section, the representative
the manner prescribed by § 27.8. At the for the Government may be employed
same time, the presiding officer shall anywhere in the authority, including
send a copy of such notice to the rep- in the offices of either the inves-
resentative for the Government. tigating official or the reviewing offi-
(b) Such notice shall include— cial.
(1) The date, time and place, and the [45 FR 24363, Apr. 9, 1980, as amended at 57
nature of the hearing; FR 5326, Feb. 13, 1992]
(2) The legal authority and jurisdic-
tion under which the hearing is to be § 27.15 Ex parte contacts.
held; No party or person (except employees
(3) The matters of fact and law to be of the presiding officer’s office) shall
asserted; communicate in any way with the pre-
(4) A description of the procedures for siding officer on any matter at issue in
the conduct of the hearing; a case, unless on notice and oppor-
(5) The name, address, and telephone tunity for all parties to participate.
number of the representative of the This provision does not prohibit a per-
Government and of the defendant, if son or party from inquiring about the
any; and status of a case or asking routine ques-
(6) Such other matters as the pre- tion concerning administrative func-
siding officer deems appropriate. tions or procedures.
(c) The presiding officer shall issue
the notice of hearing at least twenty § 27.16 Disqualification of the review-
(20) days prior to the date set for the ing official or presiding officer.
hearing. (a) A reviewing official or presiding
officer in a particular case may dis-
§ 27.13 Parties to the hearing. qualify himself or herself at any time.
(a) The parties to the hearing shall (b) A party may file a motion for dis-
be the defendant and the Authority. qualification of a reviewing official or
(b) Pursuant to 31 U.S.C. 3730(c)(5), a presiding officer with the hearing
private plaintiff under the False clerk. Such motion shall be accom-
Claims Act may participate in these panied by an affidavit alleging personal
283
§ 27.17 40 CFR Ch. I (7–1–00 Edition)
bias or other reason for disqualifica- (h) Submit written briefs and pro-
tion. posed findings of fact and conclusions
(c) Such motion and affidavit shall be of law after the hearing.
filed within 15 days of the party’s dis-
covery of reasons requiring disquali- § 27.18 Authority of the presiding offi-
fication, or such objections shall be cer.
deemed waived. (a) The presiding officer shall con-
(d) Such affidavit shall state specific duct a fair and impartial hearing, avoid
facts that support the party’s belief delay, maintain order, and assure that
that personal bias or other reason for a record of the proceeding is made.
disqualification exists and the time (b) The presiding officer has the au-
and circumstances of the party’s dis- thority to—
covery of such facts. It shall be accom- (1) Set and change the date, time,
panied by a certificate of the rep- and place of the hearing upon reason-
resentative of record that it is made in able notice to the parties;
good faith. (2) Continue or recess the hearing in
(e) Upon the filing of such a motion whole or in part for a reasonable period
and affidavit, the presiding officer of time;
shall proceed no further in the case (3) Hold conferences to identify or
until he or she resolves the matter of simplify the issues, or to consider
disqualification in accordance with other matters that may aid in the ex-
paragraph (f) of this section. peditious disposition of the proceeding;
(f)(1) If the presiding officer deter- (4) Administer oaths and affirma-
mines that the reviewing official is dis- tions;
qualified because the reviewing official (5) Issue subpoenas requiring the at-
could not have made an impartial de- tendance of witnesses and the produc-
termination pursuant to § 27.5(a), the tion of documents at depositions or at
presiding officer shall dismiss the com- hearings;
plaint without prejudice. (6) Rule on motions and other proce-
(2) If the presiding officer disqualifies dural matters;
himself or herself, the case shall be re- (7) Regulate the scope and timing of
assigned promptly to another presiding discovery;
officer. (8) Regulate the course of the hearing
(3) If the presiding officer denies a and the conduct of representatives and
motion to disqualify, the Environ- parties;
mental Appeals Board may determine (9) Examine witnesses;
the matter only as part of its review of (10) Receive, rule on, exclude, or
the initial decision upon appeal, if any. limit evidence;
[45 FR 24363, Apr. 9, 1980, as amended at 57 (11) Upon motion of a party, take of-
FR 5326, Feb. 13, 1992] ficial notice of facts;
(12) Upon motion of a party, decide
§ 27.17 Rights of parties. cases, in whole or in part, by summary
Except as otherwise limited by this judgment where there is no disputed
part, all parties may— issue of material fact;
(a) Be accompanied, represented, and (13) Conduct any conference, argu-
advised by a representative; ment, or hearing on motions in person
(b) Participate in any conference or by telephone; and
held by the presiding officer; (14) Exercise such other authority as
(c) Conduct discovery; is necessary to carry out the respon-
(d) Agree to stipulations of fact or sibilities of the presiding officer under
law, which shall be made part of the this part.
record; (c) The presiding officer does not
(e) Present evidence relevant to the have the authority to find Federal
issues at the hearing; statutes or regulations invalid.
(f) Present and cross-examine wit-
nesses; § 27.19 Prehearing conferences.
(g) Present oral arguments at the (a) The presiding officer may sched-
hearing as permitted by the presiding ule prehearing conferences as appro-
officer; and priate.
284
(b) Upon the motion of any party, the cial relating to the allegations in the
presiding officer shall schedule at least complaint, even if it is contained in a
one prehearing conference at a reason- document that would otherwise be
able time in advance of the hearing. privileged. If the document would oth-
(c) The presiding officer may use pre- erwise be privileged, only that portion
hearing conferences to discuss the fol- containing exculpatory information
lowing: must be disclosed.
(1) Simplification of the issues; (c) The notice sent to the Attorney
(2) The necessity or desirability of General from the reviewing official as
amendments to the pleadings, includ- described in § 27.5 is not discoverable
ing the need for a more definite state- under any circumstances.
ment; (d) The defendant may file a motion
(3) Stipulations and admissions of to compel disclosure of the documents
fact as to the contents and authen- subject to the provisions of this sec-
ticity of documents; tion. Such a motion may only be filed
(4) Whether the parties can agree to following the filing of an answer pursu-
submission of the case on a stipulated ant to § 27.9.
record;
(5) Whether a party chooses to waive § 27.21 Discovery.
appearance at an oral hearing and to (a) The following types of discovery
submit only documentary evidence are authorized:
(subject to the objection of other par- (1) Requests for production of docu-
ties) and written argument; ments for inspection and copying;
(6) Limitation of the number of wit- (2) Requests for admissions of the au-
nesses; thenticity of any relevant document or
(7) Scheduling dates for the exchange of the truth of any relevant fact;
of witness lists and of proposed exhib- (3) Written interrogatories; and
its; (4) Depositions.
(8) Discovery; (b) For the purpose of this section
(9) The time and place for the hear- and §§ 27.22 and 27.23, the term docu-
ing; and ments includes information, documents,
(10) Such other matters as may tend reports, answers, records, accounts, pa-
to expedite the fair and just disposition pers, and other data and documentary
of the proceedings. evidence. Nothing contained herein
(d) The presiding officer may issue an shall be interpreted to require the cre-
order containing all matters agreed ation of a document.
upon by the parties or ordered by the (c) Unless mutually agreed to by the
presiding officer at a prehearing con- parties, discovery is available only as
ference. ordered by the presiding officer. The
presiding officer shall regulate the tim-
§ 27.20 Disclosure of documents. ing of discovery.
(a) Upon written request to the re- (d) Motions for discovery. (1) A party
viewing official, the defendant may re- seeking discovery may file a motion
view any relevant and material docu- which shall be accompanied by a copy
ments, transcripts, records, and other of the requested discovery, or in the
materials that relate to the allegations case of depositions, a summary of the
set out in the complaint and upon scope of the proposed deposition.
which the findings and conclusions of (2) Within ten days of service, a party
the investigating official under § 27.4(b) may file an opposition to the motion
are based, unless such documents are and/or a motion for protective order as
subject to a privilege under Federal provided in § 27.24.
law. Upon payment of fees for duplica- (3) The presiding officer may grant a
tion, the defendant may obtain copies motion for discovery only if he finds
of such documents. that the discovery sought—
(b) Upon written request to the re- (i) Is necessary for the expeditious,
viewing official, the defendant also fair, and reasonable consideration of
may obtain a copy of all exculpatory the issues;
information in the possession of the re- (ii) Is not unduly costly or burden-
viewing official or investigating offi- some;
285
§ 27.22 40 CFR Ch. I (7–1–00 Edition)
(iii) Will not unduly delay the pro- cause for the failure or that there is
ceeding; and not prejudice to the objecting party.
(iv) Does not seek privileged informa- (c) Unless another party objects
tion. within the time set by the presiding of-
(4) The burden of showing that dis- ficer, documents exchanged in accord-
covery should be allowed is on the ance with paragraph (a) of this section
party seeking discovery. shall be deemed to be authentic for the
(5) The presiding officer may grant purpose of admissibility at the hearing.
discovery subject to a protective order
under § 27.24. § 27.23 Subpoenas for attendance at
(e) Depositions. (1) If a motion for dep- hearing.
osition is granted, the presiding officer (a) A party wishing to procure the
shall issue a subpoena for the depo- appearance and testimony of any indi-
nent, which may require the deponent vidual at the hearing may request that
to produce documents. The subpoena the presiding officer issue a subpoena.
shall specify the time and place at (b) A subpoena requiring the attend-
which the deposition will be held. ance and testimony of an individual
(2) The party seeking to depose shall may also require the individual to
serve the subpoena in the manner pre- produce documents at the hearing.
scribed in § 27.8. (c) A party seeking a subpoena shall
(3) The deponent may file a motion to file a written request therefor not less
quash the subpoena or a motion for a than 15 days before the date fixed for
protective order within ten days of the hearing unless otherwise allowed
service. by the presiding officer for good cause
(4) The party seeking to depose shall shown. Such request shall specify any
provide for the taking of a verbatim documents to be produced and shall
transcript of the deposition, which it designate the witnesses and describe
shall make available to all other par- the address and location thereof with
ties for inspection and copying. sufficient particularity to permit such
(f) Each party shall bear its own witnesses to be found.
costs of discovery.
(d) The subpoena shall specify the
§ 27.22 Exchange of witness lists, state- time and place at which the witness is
ments, and exhibits. to appear and any documents the wit-
ness is to produce.
(a) At least 15 days before the hear-
ing or at such other time as may be or- (e) The party seeking the subpoena
dered by the presiding officer, the par- shall serve it in the manner prescribed
ties shall exchange witness lists, copies in § 27.8. A subpoena on a party or upon
of prior statements of proposed wit- an individual under the control of a
nesses, and copies of proposed hearing party may be served by first class mail.
exhibits, including copies of any writ- (f) A party or the individual to whom
ten statements that the party intends the subpoena is directed may file a mo-
to offer in lieu of live testimony in action to quash the subpoena within ten
cordance with § 27.33(b). At the time days after service or on or before the
the above documents are exchanged, time specified in the subpoena for com-
any party that intends to rely on the pliance if it is less than ten days after
transcript of deposition testimony in service.
lieu of live testimony at the hearing, if
§ 27.24 Protective order.
permitted by the presiding officer,
shall provide each party with a copy of (a) A party or a prospective witness
the specific pages of the transcript it or deponent may file a motion for a
intends to introduce into evidence. protective order with respect to dis-
(b) If a party objects, the presiding covery sought by a party or with re-
officer shall not admit into evidence spect to the hearing, seeking to limit
the testimony of any witness whose the availability or disclosure of evi-
name does not appear on the witness dence.
list or any exhibit not provided to the (b) In issuing a protective order, the
opposing party as provided above un- presiding officer may make any order
less the presiding officer finds good which justice requires to protect a
286
party or person from annoyance, em- signed by the hearing clerk, and a des-
barrassment, oppression, or undue bur- ignation of the paper (e.g., motion to
den or expense, including one or more quash subpoena).
of the following: (3) Every pleading and paper shall be
(1) That the discovery not be had; signed by, and shall contain the ad-
(2) That the discovery may be had dress and telephone number of, the
only on specified terms and conditions, party or the person on whose behalf the
including a designation of the time or paper was filed, or his or her represent-
place; ative.
(3) That the discovery may be had
(4) Papers are considered filed when
only through a method of discovery
other than that requested; they are mailed. Date of mailing may
(4) That certain matters not be in- be established by a certificate from the
quired into, or that the scope of dis- party or its representative or by proof
covery be limited to certain matters; that the document was sent by cer-
(5) That discovery be conducted with tified or registered mail.
no one present except persons des- (b) Service. A party filing a document
ignated by the presiding officer; with the hearing clerk shall, at the
(6) That the contents of discovery or time of filing, serve a copy of such doc-
evidence be sealed; ument on every other party. Service
(7) That a deposition after being upon any party of any document, other
sealed be opened only by order of the than those required to be served as pre-
presiding officer; scribed in § 27.8, shall be made by deliv-
(8) That a trade secret or other con- ering a copy or by placing a copy of the
fidential research, development, or document in the United States mail,
commercial information, or facts per- postage prepaid and addressed, to the
taining to any criminal investigation, party’s last known address. When a
proceeding, or other administrative in- party is represented by a representa-
vestigation not be disclosed or be dis- tive, service shall be made upon such
closed only in a designated way; or
representative in lieu of the actual
(9) That the parties simultaneously
party.
file specified documents or information
enclosed in sealed envelopes to be (c) Proof of service. A certificate of
opened as directed by the presiding of- the individual serving the document by
ficer. personal delivery or by mail, setting
forth the manner of service, shall be
§ 27.25 Fees. proof of service.
The party requesting a subpoena
§ 27.27 Computation of time.
shall pay the cost of the fees and mile-
age of any witness subpoenaed in the (a) In computing any period of time
amounts that would be payable to a under this part or in an order issued
witness in a proceeding in United thereunder, the time begins with the
States District Court. A check for wit- day following the act, event, or default,
ness fees and mileage shall accompany and includes the last day of the period,
the subpoena when served, except that unless it is a Saturday, Sunday, or
when a subpoena is issued on behalf of legal holiday observed by the Federal
the Authority, a check for witness fees Government, in which event it includes
and mileage need not accompany the the next business day.
subpoena. (b) When the period of time allowed
§ 27.26 Form, filing and service of pa- is less than seven days, intermediate
pers. Saturdays, Sundays, and legal holidays
observed by the Federal Government
(a) Form. (1) Documents filed with the
hearing clerk shall include an original shall be excluded from the computa-
and two copies. tion.
(2) The first page of every pleading (c) When a document has been served
and paper filed in the proceeding shall or issued by placing it in the mail, an
contain a caption setting forth the additional five days will be added to
title of the action, the case number as- the time permitted for any response.
287
§ 27.28 40 CFR Ch. I (7–1–00 Edition)
§ 27.28 Motions. (2) In the case of requests for admis-

sion, deem each matter of which an ad-
(a) Any application to the presiding
mission is requested to be admitted;
officer for an order or ruling shall be
(3) Prohibit the party failing to com-
by motion. Motions shall state the re-
ply with such order from introducing
lief sought, the authority relied upon, evidence concerning, or otherwise rely-
and the facts alleged, and shall be filed ing upon, testimony relating to the in-
with hearing clerk and served on all formation sought; and
other parties. (4) Strike any part of the pleadings
(b) Except for motions made during a or other submissions of the party fail-
prehearing conference or at the hearing to comply with such request.
ing, all motions shall be in writing. (d) If a party fails to prosecute or de-
The presiding officer may require that fend an action under this part com-
oral motions be reduced to writing. menced by service of a notice of hear-
(c) Within 15 days after a written mo- ing, the presiding officer may dismiss
tion is served, or such other time as the action or may issue an initial deci-
may be fixed by the presiding officer, sion imposing penalties and assess-
any party may file a response to such ments.
motion. (e) The presiding officer may refuse
(d) The presiding officer may not to consider any motion, request, re-
grant a written motion before the time sponse, brief or other document which
for filing responses thereto has expired, is not filed in a timely fashion.
except upon consent of the parties or
following a hearing on the motion, but § 27.30 The hearing and burden of
may overrule or deny such motion proof.
without awaiting a response. (a) The presiding officer shall con-
(e) The presiding officer shall make a duct a hearing on the record in order to
reasonable effort to dispose of all out- determine whether the defendant is lia-
standing motions prior to the begin- ble for a civil penalty or assessment
ning of the hearing. under § 27.3 and, if so, the appropriate
amount of any such civil penalty or as-
§ 27.29 Sanctions. sessment considering any aggravating
(a) The presiding officer may sanc- or mitigating factors.
tion a person, including any party or (b) The Authority shall prove defend-
ant’s liability and any aggravating fac-
representative for—
tors by a preponderance of the evi-
(1) Failing to comply with an order,
dence.
rule, or procedure governing the pro-
(c) The defendant shall prove any af-
ceeding;
firmative defenses and any mitigating
(2) Failing to prosecute or defend an factors by a preponderance of the evi-
action; or dence.
(3) Engaging in other misconduct (d) The hearing shall be open to the
that interferes with the speedy, or- public unless otherwise ordered by the
derly, or fair conduct of the hearing. presiding officer for good cause shown.
(b) Any such sanction, including but
not limited to those listed in para- § 27.31 Determining the amount of
graphs (c), (d), and (e) of this section, penalties and assessments.
shall reasonably relate to the severity (a) In determining an appropriate
and nature of the failure or mis- amount of civil penalties and assess-
conduct. ments, the presiding officer and the
(c) When a party fails to comply with Environmental Appeals Board, upon
an order, including an order for taking appeal, should evaluate any cir-
a deposition, the production of evi- cumstances that mitigate or aggravate
dence within the party’s control, or a the violation and should articulate in
request for admission, the presiding of- their opinions the reasons that support
ficer may— the penalties and assessments they im-
(1) Draw an inference in favor of the pose. Because of the intangible costs of
requesting party with regard to the in- fraud, the expense of investigating
formation sought; such conduct, and the need to deter
288
others who might be similarly tempt- to it, including the extent of the de-
ed, ordinarily double damages and a fendant’s prior participation in the
significant civil penalty should be im- program or in similar transactions;
posed. (15) Whether the defendant has been
(b) Although not exhaustive, the fol- found, in any criminal, civil, or admin-
lowing factors are among those that istrative proceeding to have engaged in
may influence the presiding officer and similar misconduct or to have dealt
the Environmental Appeals Board in dishonestly with the Government of
determining the amount of penalties the United States or of a State, di-
and assessments to impose with respect rectly or indirectly; and
to the misconduct (i.e., the false, ficti- (16) The need to deter the defendant
tious, or fraudulent claims or state- and others from engaging in the same
ments) charged in the complaint: or similar misconduct.
(1) The number of false, fictitious, or (c) Nothing in this section shall be
fraudulent claims or statements; construed to limit the presiding officer
(2) The time period over which such or the Environmental Appeals Board
claims or statements were made; from considering any other factors
(3) The degree of the defendant’s cul- that in any given case may mitigate or
pability with respect to the mis- aggravate the offense for which pen-
conduct; alties and assessments are imposed.
(4) The amount of money or the value
of the property, services, or benefit
FR 5327, Feb. 13, 1992]
falsely claimed;
(5) The value of the Government’s ac- § 27.32 Location of hearing.
tual loss as a result of the misconduct,
including foreseeable consequential (a) The hearing may be held—
damages and the costs of investigation; (1) In any judicial district of the
(6) The relationship of the amount United States in which the defendant
imposed as civil penalties to the resides or transacts business;
amount of the Government’s loss; (2) In any judicial district of the
(7) The potential or actual impact of United States in which the claim or
the misconduct upon national defense, statement in issue was made; or
public health or safety, or public con- (3) In such other place as may be
fidence in the management of Govern- agreed upon by the defendant and the
ment programs and operations, includ- presiding officer.
ing particularly the impact on the in- (b) Each party shall have the oppor-
tended beneficiaries of such programs; tunity to present argument with re-
(8) Whether the defendant has en- spect to the location of the hearing.
gaged in a pattern of the same or simi- (c) The hearing shall be held at the
lar misconduct; place and at the time ordered by the
(9) Whether the defendant attempted presiding officer.
to conceal the misconduct;
(10) The degree to which the defend- § 27.33 Witnesses.
ant has involved others in the mis- (a) Except as provided in paragraph
conduct or in concealing it; (b) of this section, testimony at the
(11) Where the misconduct of employ- hearing shall be given orally by wit-
ees or agents is imputed to the defend- nesses under oath or affirmation.
ant, the extent to which the defend- (b) At the discretion of the presiding
ant’s practices fostered or attempted officer, testimony may be admitted in
to preclude such misconduct; the form of a written statement or dep-
(12) Whether the defendant cooper- osition. Any such written statement
ated in or obstructed an investigation must be provided to all other parties
of the misconduct; along with the last known address of
(13) Whether the defendant assisted such witness, in a manner which allows
in identifying and prosecuting other sufficient time for other parties to sub-
wrongdoers; poena such witness for cross-examina-
(14) The complexity of the program tion at the hearing. Prior written
or transaction, and the degree of the statements of witnesses proposed to
defendant’s sophistication with respect testify at the hearing and deposition
289
§ 27.34 40 CFR Ch. I (7–1–00 Edition)
transcripts shall be exchanged as pro- (c) The presiding officer shall exclude
vided in § 27.22(a). irrelevant and immaterial evidence.
(c) The presiding officer shall exer- (d) Although relevant, evidence may
cise reasonable control over the mode be excluded if its probative value is
and order of interrogating witnesses substantially outweighed by the danger
and presenting evidence so as to: of unfair prejudice, confusion of the
(1) Make the interrrogation and pres- issues, or by considerations of undue
entation effective for the ascertain- delay or needless presentation of cumu-
ment of the truth, lative evidence.
(2) Avoid needless consumption of (e) Although relevant, evidence may
time, and be excluded if it is privileged under
(3) Protect witnesses from harass- Federal law.
ment or undue embarrassment. (f) Evidence concerning offers of com-
(d) The presiding officer shall permit promise or settlement shall be inad-
the parties to conduct such cross-ex- missible to the extent provided in Rule
amination as may be required for a full
408 of the Federal Rules of Evidence.
and true disclosure of the facts.
(g) The presiding officer shall permit
(e) At the discretion of the presiding
officer, a witness may be cross-exam- the parties to introduce rebuttal wit-
ined on matters relevant to the pro- nesses and evidence.
ceeding without regard to the scope of (h) All documents and other evidence
his or her direct examination. To the offered or taken for the record shall be
extent permitted by the presiding offi- open to examination by all parties, un-
cer, cross-examination on matters out- less otherwise ordered by the presiding
side the scope of direct examination officer pursuant to § 27.24.
shall be conducted in the manner of di-
rect examination and may proceed by § 27.35 The record.
leading questions only if the witness is (a) The hearing will be recorded and
a hostile witness, an adverse party, or transcribed. Transcripts may be ob-
a witness identified with an adverse tained following the hearing from the
party. hearing clerk at a cost not to exceed
(f) Upon motion of any party, the the actual cost of duplication.
presiding officer shall order witnesses (b) The transcript of testimony, ex-
excluded so that they cannot hear the hibits and other evidence admitted at
testimony of other witnesses. This rule the hearing, and all papers and re-
does not authorize exclusion of— quests filed in the proceeding con-
(1) A party who is an individual; stitute the record for the decision by
(2) In the case of a party that is not the presiding officer and the Environ-
an individual, an officer or empoyee of mental Appeals Board.
the party appearing for the entity pro (c) The record may be inspected and
se or designated by the party’s rep- copied (upon payment of a reasonable
resentative; or fee) by anyone, unless otherwise or-
(3) an individual whose presence is dered by the presiding officer pursuant
shown by a party to be essential to the to § 27.24.
presentation of its case, including an
individual employed by the Govern- [45 FR 24363, Apr. 9, 1980, as amended at 57
ment engaged in assisting the rep- FR 5327, Feb. 13, 1992]
resentative for the Government.
27.36 Post-hearing briefs.
§ 27.34 Evidence. The presiding officer may require the
(a) The presiding officer shall deter- parties to file post-hearing briefs. In
mine the admissibility of evidence. any event, any party may file a post-
(b) Except as provided in this part, hearing brief. The presiding officer
the presiding officer shall not be bound shall fix the time for filing such briefs,
by the Federal Rules of Evidence. How- not to exceed 60 days from the date the
ever, the presiding officer may apply parties receive the transcript of the
the Federal Rules of Evidence when ap- hearing or, if applicable, the stipulated
propriate, e.g., to exclude unreliable record. Such briefs may be accom-
evidence. panied by proposed findings of fact and
290
conclusions of law. The presiding offi- tial decision within 20 days of receipt
cer may permit the parties to file re- of the initial decision. If service was
sponsive briefs. made by mail, receipt will be presumed
to be five days from the date of mailing
§ 27.37 Initial decision. in the absence of contrary proof.
(a) The presiding officer shall issue (b) Every such motion must set forth
an initial decision based only on the the matters claimed to have been erro-
record. The decision shall contain find- neously decided and the nature of the
ings of fact, conclusions of law, and the alleged errors. Such motion shall be
amount of any penalties and assess- accompanied by a supporting brief.
ments imposed. (c) Responses to such motions shall
(b) The findings of fact shall include be allowed only upon request of the
a finding on each of the following presiding officer.
issues: (d) No party may file a motion for re-
(1) Whether the claims or statements consideration of an initial decision
identified in the complaint, or any por- that has been revised in response to a
tions thereof, violate § 27.3; previous motion for reconsideration.
(2) If the person is liable for penalties (e) The presiding officer may dispose
or assessments, the appropriate of a motion for reconsideration by de-
amount of any such penalties or assess- nying it or by issuing a revised intial
ments considering any mitigating or decision.
aggravating factors that he or she finds (f) If the presiding officer denies a
in the case, such as those described in
motion for reconsideration, the initial
§ 27.31.
decision shall constitute the final deci-
(c) The presiding officer shall
sion of the Environmental Appeals
promptly serve the initial decision on
Board and shall be final and binding on
all parties within 90 days after the
the parties 30 days after the presiding
time for submission of post-hearing
officer denies the motion, unless the
briefs and responsive briefs (if per-
initial decision is timely appealed to
mitted) has expired. The presiding offi-
the Environmental Appeals Board in
cer shall at the same time serve all
accordance with § 27.39.
parties with a statement describing the
right of any defendant determined to (g) If the presiding officer issued a re-
be liable for a civil penalty or assess- vised initial decision, that decision
ment to file a motion for reconsider- shall constitute the final decision of
ation or a notice of appeal. If the pre- the Environmental Appeals Board and
siding officer fails to meet the deadline shall be final and binding on the par-
contained in this paragraph, he or she ties 30 days after it is issued, unless it
shall notify the parties of the reason is timely appealed to the Environ-
for the delay and shall set a new dead- mental Appeals Board in accordance
line. with § 27.39.
(d) Unless the initial decision of the [45 FR 24363, Apr. 9, 1980, as amended at 57
presiding officer is timely appealed to FR 5327, Feb. 13, 1992]
the Environmental Appeals Board, or a
motion for reconsideration of the ini- § 27.39 Appeal to authority head.
tial decision is timely filed, the initial (a) Any defendant who has filed a
decision shall constitute the final deci- timely answer and who is determined
sion of the Environmental Appeals in an initial decision to be liable for a
Board and shall be final and binding on civil penalty or assessment may appeal
the parties 30 days after it is issued by such decision to the Environmental
the presiding officer. Appeals Board by filing a notice of ap-
[45 FR 24363, Apr. 9, 1980, as amended at 57 peal with the hearing clerk in accord-
FR 5327, Feb. 13, 1992] ance with this section.
(b)(1) A notice of appeal may be filed
§ 27.38 Reconsideration of initial deci- at any time within 30 days after the
sion. presiding officer issues an initial deci-
(a) Except as provided in paragraph sion. However, if another party files a
(d) of this section, any party may file a motion for reconsideration under
motion for reconsideration of the ini- § 27.38, consideration of the appeal shall
291
§ 27.40 40 CFR Ch. I (7–1–00 Edition)
be stayed automatically pending reso- (k) The Environmental Appeals

lution of the motion for reconsider- Board shall promptly serve each party
ation. to the appeal with a copy of the deci-
(2) If a motion for reconsideration is sion of the Environmental Appeals
timely filed, a notice of appeal may be Board and a statement describing the
filed within 30 days after the presiding right of any person determined to be
officer denies the motion or issues a reliable for a civil penalty or assessment
vised initial decision, whichever ap- to seek judicial review.
plies. (l) Unless a petition for review is
(3) The Environmental Appeals Board filed as provided in 31 U.S.C. 3805 after
may extend the initial 30 day period for a defendant has exhausted all adminis-
an additional 30 days if the defendant trative remedies under this part and
files a request for an extension within within 60 days after the date on which
the initial 30 day period and shows the Environmental Appeals Board
good cause. serves the defendant with a copy of the
(c) If the defendant filed a timely no- Environmental Appeals Board’s deci-
tice of appeal, and the time for filing sion, a determination that a defendant
motions for reconsideration under is liable under § 27.3 is final and is not
§ 27.38 has expired, the presiding officer subject to judicial review.
shall forward the record of the pro- [45 FR 24363, Apr. 9, 1980, as amended at 57
ceeding to the Environmental Appeals FR 5327, Feb. 13, 1992]
Board.
(d) A notice of appeal shall be accom- § 27.40 Stay ordered by the Depart-
panied by a written brief specifying ex- ment of Justice.
ceptions to the initial decision and rea- If at any time the Attorney General
sons supporting the exceptions. or an Assistant Attorney General des-
(e) The representative for the Gov- ignated by the Attorney General trans-
ernment may file a brief in opposition mits to the Environmental Appeals
to exceptions within 30 days of receiv- Board a written finding that continu-
ing the notice of appeal and accom- ation of the administrative process de-
panying brief. scribed in this part with respect to a
(f) There is no right to appear person- claim or statement may adversely af-
ally before the Environmental Appeals fect any pending or potential criminal
Board. or civil action related to such claim or
(g) There is no right to appeal any in- statement, the Environmental Appeals
terlocutory ruling by the presiding of- Board shall stay the process imme-
ficer. diately. The Environmental Appeals
(h) In reviewing the initial decision, Board may order the process resumed
the Environmental Appeals Board shall only upon receipt of the written au-
not consider any objection that was thorization of the Attorney General.
not raised before the presiding officer
[57 FR 5327, Feb. 13, 1992]
unless a demonstration is made of ex-
traordinary circumstances causing the § 27.41 Stay pending appeal.
failure to raise the objection.
(a) An initial decision is stayed auto-
(i) If any party demonstrates to the
matically pending disposition of a mo-
satisfaction of the Environmental Ap-
tion for reconsideration or of an appeal
peals Board that additional evidence
to the Environmental Appeals Board.
not presented at such hearing is mate-
(b) No administrative stay is avail-
rial and that there were reasonable
able following a final decision of the
grounds for the failure to present such
Environmental Appeals Board.
evidence at such hearing, the Environ-
mental Appeals Board shall remand the [57 FR 5327, Feb. 13, 1992]
matter to the presiding officer for con-
sideration of such additional evidence. § 27.42 Judicial review.
(j) The Environmental Appeals Board Section 3805 of title 31, United States
may affirm, reduce, reverse, com- Code, authorizes judicial review by an
promise, remand, or settle any penalty appropriate United States District
or assessment, determined by the pre- Court of a final decision of the Envi-
siding officer in any initial decision. ronmental Appeals Board imposing
292
penalties or assessments under this any action to recover penalties and as-
part and specifies the procedures for sessments under 31 U.S.C. 3806.
such review. (e) The investigating official may
[57 FR 5327, Feb. 13, 1992] recommend settlement terms to the re-
viewing official, the Environmental
§ 27.43 Collection of civil penalties and Appeals Board, or the Attorney Gen-
assessments. eral, as appropriate. The reviewing of-
Sections 3806 and 3808(b) of title 31, ficial may recommend settlement
United States Code, authorize actions terms to the Environmental Appeals
for collection of civil penalties and as- Board or the Attorney General, as ap-
sessments imposed under this part and propriate.
specify the procedures for such actions. (f) Any compromise or settlement
must be in writing.
§ 27.44 Right to administrative offset.
The amount of any penalty or assess-
FR 5327, Feb. 13, 1992]
ment which has become final, or for
which a judgment has been entered § 27.47 Limitations.
under §§ 27.42 or 27.43, or any amount
agreed upon in a compromise or settle- (a) The notice of hearing with respect
ment under § 27.46, may be collected by to a claim or statement must be served
administrative offset under 31 U.S.C. in the manner specified in § 27.8 within
3716, except that an administrative off- 6 years after the date on which such
set may not be made under this section claim or statement is made.
against a refund of an overpayment of (b) If the defendant fails to file a
Federal taxes, then or later owing by timely answer, service of a notice
the United States to the defendant. under § 27.10(b) shall be deemed a notice
of hearing for purposes of this section.
§ 27.45 Deposit in Treasury of United (c) The statute of limitations may be
States.
extended by agreement of the parties.
All amounts collected pursuant to
this part shall be deposited as miscella- § 27.48 Delegated functions.
neous receipts in the Treasury of the
The Administrator delegates author-
United States, except as provided in 31
U.S.C. 3806(g). ity to the Environmental Appeals
Board to issue final decisions in ap-
§ 27.46 Compromise or settlement. peals filed under this part. An appeal
directed to the Administrator, rather
(a) Parties may make offers of com-
promise or settlement at any time. than the Environmental Appeals
(b) The reviewing official has the ex- Board, will not be considered. This del-
clusive authority to compromise or egation of authority to the Environ-
settle a case under this part at any mental Appeals Board does not pre-
time after the date on which the re- clude the Environmental Appeals
viewing official is permitted to issue a Board from referring an appeal or mo-
complaint and before the date on which tion filed under this part to the Admin-
the presiding officer issues an initial istrator for decision when the Environ-
decision. mental Appeals Board, in its
(c) The Environmental Appeals Board descretion, deems it appropriate to do
has exclusive authority to compromise so. When an appeal or motion is re-
or settle a case under this part at any ferred to the Administrator, all parties
time after the date on which the pre- shall be so notified and the rules in
siding officer issues an initial decision, this part referring to the Environ-
except during the pendency of any re- mental Appeals Board shall be inter-
view under § 27.42 or during the pend- preted as referring to the Adminis-
ency of any action to collect penalties trator. If a case or motion is referred
and assessments under § 27.43. to the Administrator by the Environ-
(d) The Attorney General has exclu- mental Appeals Board, the Adminis-
sive authority to compromise or settle trator may consult with any EPA em-
a case under this part during the pend- ployee concerning the matter, provided
ency of any review under § 27.42 or of such consultation does not violate the
293
ex parte contacts restrictions set forth sions of section 401 of the Intergovern-
in §§ 27.14 and 27.15 of this part. mental Cooperation Act of 1968, as
amended and section 204 of the Dem-
[57 FR 5328, Feb. 13, 1992]
onstration Cities and Metropolitan De-
velopment Act of 1966, as amended.
PART 29—INTERGOVERNMENTAL (b) These regulations are intended to
REVIEW OF ENVIRONMENTAL foster an intergovernmental partner-
PROTECTION AGENCY PRO- ship and a strengthened federalism by
GRAMS AND ACTIVITIES relying on State processes and on
State, areawide, regional and local co-
Sec. ordination for review of proposed Fed-
29.1 What is the purpose of these regula- eral financial assistance and direct
tions? Federal development.
29.2 What definitions apply to these regula- (c) These regulations are intended to
tions? aid the internal management of the
29.3 What programs and activities of the
Environmental Protection Agency
Environmental Protection Agency are
subject to these regulations? (EPA) and are not intended to create
29.4 What are the Administrator’s general any right or benefit enforceable at law
responsibilities under the Order? by a party against EPA or its officers.
29.5 What is the Administrator’s obligation
with respect to Federal interagency co- § 29.2 What definitions apply to these
ordination? regulations?
29.6 What procedures apply to the selection Administrator means the Adminis-
of programs and activities under these trator of the U.S. Environmental Pro-
regulations?
29.7 How does the Administrator commu-
tection Agency or an official or em-
nicate with State and local officials con- ployee of the Agency acting for the Ad-
cerning EPA programs and activities? ministrator under a delegation of au-
29.8 How does the Administrator provide thority.
States an opportunity to comment on Agency means the U.S. Environ-
proposed Federal financial assistance mental Protection Agency (EPA).
and direct Federal development? Order means Executive Order 12372,
29.9 How does the Administrator receive issued July 14, 1982, and amended April
and respond to comments? 8, 1983, and titled ‘‘Intergovernmental
29.10 How does the Administrator make ef-
forts to accommodate intergovernmental
Review of Federal Programs.’’
concerns? States means any of the 50 States, the
29.11 What are the Administrator’s obliga- District of Columbia, the Common-
tions in interstate situations? wealth of Puerto Rico, the Common-
29.12 How may a State simplify, consoli- wealth of the Northern Mariana Is-
date, or substitute federally required lands, Guam, American Samoa, the
State plans? U.S. Virgin Islands, or the Trust Terri-
29.13 May the Administrator waive any pro- tory of the Pacific Islands.
vision of these regulations?
AUTHORITY: E.O. 12372, July 14, 1982 (47 FR § 29.3 What programs and activities of
30959), as amended Apr. 8, 1983 (48 FR 15887); the Environmental Protection
sec. 401 of the Intergovernmental Coopera- Agency are subject to these regula-
tion Act of 1968 as amended (31 U.S.C. 6506); tions?
sec. 204 of the Demonstration Cities and Met- The Administrator publishes in the
ropolitan Development Act of 1966, as FEDERAL REGISTER a list of the EPA
amended (42 U.S.C. 3334).
programs and activities that are sub-
SOURCE: 48 FR 29300, June 24, 1983, unless ject to these regulations and identifies
otherwise noted. which of these are subject to the re-
quirements of section 204 of the Dem-
§ 29.1 What is the purpose of these reg- onstration Cities and Metropolitan De-
ulations?
velopment Act.
(a) The regulations in this part im-
plement Executive Order 12372, ‘‘Inter- § 29.4 What are the Administrator’s
governmental Review of Federal Pro- general responsibilities under the
grams,’’ issued July 14, 1982, and Order?
amended, on April 8, 1983. These regula- (a) The Administrator provides op-
tions also implement applicable provi- portunities for consultation by elected
294
officials of those State and local gov- tion between such agencies and EPA
ernments that would provide the non- regarding programs and activities cov-
Federal funds for, or that would be di- ered under these regulations.
rectly affected by, proposed Federal fi-
nancial assistance from, or direct Fed- § 29.6 What procedures apply to the se-
eral development by, the EPA. lection of programs and activities
(b) If a State adopts a process under under these regulations?
the Order to review and coordinate pro- (a) A State may select any program
posed Federal financial assistance and or activity published in the FEDERAL
direct Federal development, the Ad- REGISTER in accordance with § 29.3 of
ministrator to the extent permitted by this part for intergovernmental review
law: under these regulations. Each State,
(1) Uses the State process to deter- before selecting programs and activi-
mine official views of State and local ties, shall consult with local elected of-
elected officials; ficials.
(2) Communicates with State and (b) Each State that adopts a process
local elected officials as early in a pro- shall notify the Administrator of EPA
gram planning cycle as is reasonably programs and activities selected for
feasible to explain specific plans and that process.
actions; (c) A State may notify the Adminis-
(3) Makes efforts to accommodate trator of changes in its selections at
State and local elected officials’ con- any time. For each change, the State
cerns with proposed Federal financial shall submit an assurance to the Ad-
assistance and direct Federal develop- ministrator that the State has con-
ment that are communicated through sulted with local elected officials re-
the State process; garding the change. EPA may establish
(4) Allows the States to simplify and deadlines by which States are required
consolidate existing federally required to inform the Administrator of changes
State plan submissions; in their program selections.
(5) Where State planning and budg-
(d) The Administrator uses a State’s
eting systems are sufficient and where
process as soon as feasible, depending
permitted by law, encourages the sub-
on individual programs and activities,
stitution of State plans for federally
after the Administrator is notified of
required State plans;
its selections.
(6) Seeks the coordination of views of
affected State and local elected offi- § 29.7 How does the Administrator
cials in one State with those of another communicate with State and local
State when proposed Federal financial officials concerning the EPA pro-
assistance or direct Federal develop- grams and activities?
ment has an impact on interstate met-
(a) For those programs and activities
ropolitan urban centers or other inter-
covered by a State process under § 29.6,
state areas; and
the Administrator, to the extent per-
(7) Supports State and local govern-
mitted by law:
ments by discouraging the reauthoriza-
tion or creation of any planning orga- (1) Uses the State process to deter-
nization which is federally-funded, mine views of State and local elected
which has a limited purpose, and which officials; and
is not adequately representative of, or (2) Communicates with State and
accountable to, State or local elected local elected officials, through the
officials, State process, as early in a program
planning cycle as is reasonably feasible
§ 29.5 What is the Administrator’s obli- to explain specific plans and actions.
gation with respect to Federal (b) The Administrator provides no-
interagency coordination? tice of proposed Federal financial as-
The Administrator, to the extent sistance or direct Federal development
practicable, consults with and seeks to directly affected State, areawide, re-
advice from all other substantially af- gional, and local entities in a State if:
fected Federal departments and agen- (1) The State has not adopted a proc-
cies in an effort to assure full coordina- ess under the Order; or
295
§ 29.8 40 CFR Ch. I (7–1–00 Edition)
(2) The assistance or development in- contact, all comments from State,
volves a program or activity not se- area-wide, regional, and local officials
lected for the State process. and entities that differ from it must
This notice may be published in the also be transmitted.
FEDERAL REGISTER or issued by other (c) If a State has not established a
means which EPA, in its discretion process, or is unable to submit a State
deems appropriate. process recommendation, the State,
areawide, regional and local officials
§ 29.8 How does the Administrator pro- and entities may submit comments di-
vide States an opportunity to com-
ment on proposed Federal financial rectly either to the applicant or to
assistance and direct Federal devel- EPA.
opment? (d) If a program or activity is not se-
(a) Except in unusual circumstances, lected for a State process, the State,
the Administrator gives State proc- areawide, regional and local officials
esses or directly affected State, and entities may submit comments ei-
areawide, regional and local officials ther directly to the applicant or to
and entities: EPA. In addition, if a State process
(1) At least 30 days from the date es- recommendation for a nonselected pro-
tablished by the Administrator to com- gram or activity is transmitted to EPA
ment on proposed Federal financial as- by the single point of contact, the Ad-
sistance in the form of noncompeting ministrator follows the procedures of
continuation awards; and § 29.10 of this part.
(2) At least 60 days from the date es- (e) The Administrator considers com-
tablished by the Administrator to comments which do not constitute a State
ment on proposed direct Federal devel- process recommendation submitted
opment or Federal financial assistance, under these regulations and for which
other than noncompeting continuation the Administrator is not required to
awards. apply the procedures of § 29.10 of this
(b) This section also applies to com- part, when such comments are provided
ments in cases in which the review, co-
by a single point of contact, by the ap-
ordination, and communication with
plicant, or directly to the Agency by a
the Environmental Protection Agency
have been delegated. commenting party.
(c) Applicants for programs and ac- § 29.10 How does the Administrator
tivities subject to section 204 of the make efforts to accommodate inter-
Demonstration Cities and Metropolitan governmental concerns?
Development Act shall allow areawide
agencies a 60-day opportunity for re- (a) If a State process provides a State
view and comment. process recommendation to the Agency
through the State’s single point of con-
§ 29.9 How does the Administrator re- tact, the Administrator either:
ceive and respond to comments? (1) Accepts the recommendation;
(a) The Administrator follows the (2) reaches a mutually agreeable so-
procedures in § 29.10 if: lution with the State process; or
(1) A State office or official is des- (3) Provides the single point of con-
ignated to act as a single point of contact with such written explanation of
tact between a State process and all the decision, as the Administrator, in
Federal agencies, and his or her discretion, deems appro-
(2) That office or official transmits a priate. The Administrator may also
State process recommendation for a supplement the written explanation by
program selected under § 29.6. providing the explanation to the single
(b) The single point of contact is not point of contact by telephone, other
obligated to transmit comments from
telecommunication, or other means.
State, areawide, regional or local offi-
(b) In any explanation under para-
cials and entities where there is no
State process recommendation. How- graph (a)(3) of this section, the Admin-
ever, if a State process recommenda- istrator informs the single point of
tion is transmitted by a single point of contact that:
296
(1) EPA will not implement its deci- (b) The Administrator uses the proce-
sion for at least ten days after the sin- dures in § 29.10 if a State process pro-
gle point of contact receives the expla- vides a State process recommendation
nation; or to the Agency through a single point of
(2) The Administrator has reviewed contact.
the decision and determined that, be-
cause of unusual circumstances, the § 29.12 How may a State simplify, con-
waiting period of at least ten days is solidate, or substitute federally re-
not feasible. quired State plans?
(c) For purposes of computing the (a) As used in this section:
waiting period under paragraph (b)(1) (1) Simplify means that a State may
of this section, a single point of con- develop its own format, choose its own
tact is presumed to have received writ- submission date, and select the plan-
ten notification 5 days after the date of ning period for a State plan.
mailing of such notification. (2) Consolidate means that a State
may meet statutory and regulatory re-
§ 29.11 What are the Administrator’s quirements by combining two or more
obligations in interstate situations? plans into one document and that the
(a) The Administrator is responsible State can select the format, submis-
for: sion date, and planning period for the
(1) Identifying proposed Federal fi- consolidated plan.
nancial assistance and direct Federal (3) Substitute means that a State may
development that have an impact on use a plan or other document that it
interstate areas; has developed for its own purposes to
(2) Notifying appropriate officials meet Federal requirements.
and entities in States which have (b) If not inconsistent with law, a
adopted a process and selected an EPA State may decide to try to simplify,
program or activity. consolidate, or substitute federally re-
(3) Making efforts to identify and no- quired State plans without prior ap-
tify the affected State, areawide, re- proval by the Administrator.
gional, and local officials and entities (c) The Administrator reviews each
in those States that do not adopt a State plan that a State has simplified,
process under the Order or do not se- consolidated, or substituted and ac-
lect an EPA program or activity; cepts the plan only if its contents meet
(4) Responding in accordance with Federal requirements.
§ 29.10 of this part to a recommendation
received from a designated areawide § 29.13 May the Administrator waive
agency transmitted by a single point of any provision of these regulations?
contact, in cases in which the review, In an emergency, the Administrator
coordination, and communication with may waive any provision of these regu-
EPA were delegated. lations.
297
SUBCHAPTER B—GRANTS AND OTHER FEDERAL ASSISTANCE
PART 30—UNIFORM ADMINISTRA- 30.43 Competition.

30.44 Procurement procedures.
TIVE REQUIREMENTS FOR GRANTS 30.45 Cost and price analysis.
AND AGREEMENTS WITH INSTITU- 30.46 Procurement records.
TIONS OF HIGHER EDUCATION, 30.47 Contract administration.
HOSPITALS, AND OTHER NON- 30.48 Contract provisions.
PROFIT ORGANIZATIONS
REPORTS AND RECORDS
Subpart A—General 30.50 Purpose of reports and records.
30.51 Monitoring and reporting program
Sec.
performance.
30.1 Purpose.
30.2 Definitions. 30.52 Financial reporting.
30.3 Effect on other issuances. 30.53 Retention and access requirements for
30.4 Deviations. records.
30.5 Subawards. 30.54 Quality assurance.
30.6 Availability of OMB circulars.
TERMINATION AND ENFORCEMENT
Subpart B—Pre-Award Requirements 30.60 Purpose of termination and enforce-
ment.
30.10 Purpose.
30.11 Pre-award policies. 30.61 Termination.
30.12 Forms for applying for Federal assist- 30.62 Enforcement.
ance. 30.63 Disputes.
30.13 Debarment and suspension.
30.14 Special award conditions. Subpart D—After-the-Award Requirements
30.15 Metric system of measurement.
30.16 Resource Conservation and Recovery 30.70 Purpose.
Act (RCRA). 30.71 Closeout procedures.
30.17 Certifications and representations. 30.72 Subsequent adjustments and con-
30.18 Hotel and motel fire safety. tinuing responsibilities.
30.73 Collection of amounts due.
Subpart C—Post-Award Requirements APPENDIX TO PART 30—CONTRACT PROVISIONS
FINANCIAL AND PROGRAM MANAGEMENT AUTHORITY: 7 U.S.C. 135 et seq.; 15 U.S.C.
30.20 Purpose of financial and program man- 2601 et seq.; 33 U.S.C. 1251 et seq.; 42 U.S.C. 241,
agement. 242b, 243, 246, 300f, 300j–1, 300j–2, 300j–3, 1857 et
30.21 Standards for financial management seq., 6901 et seq., 7401 et seq., 9601 et seq.; OMB
systems. Circular A–110 (64 FR 54926, October 8, 1999).
30.22 Payment. SOURCE: 61 FR 6067, Feb. 15, 1996, unless
30.23 Cost sharing or matching. otherwise noted.
30.24 Program income.
30.25 Revision of budget and program plans.
30.26 Non-Federal audits. Subpart A—General
30.27 Allowable costs.
30.28 Period of availability of funds. § 30.1 Purpose.
PROPERTY STANDARDS This subpart establishes uniform ad-
30.30 Purpose of property standards. ministrative requirements for Federal
30.31 Insurance coverage. grants and agreements awarded to in-
30.32 Real property. stitutions of higher education, hos-
30.33 Federally-owned and exempt property. pitals, and other non-profit organiza-
30.34 Equipment. tions. The Environmental Protection
30.35 Supplies and other expendable prop- Agency (EPA) may not impose addi-
erty.
tional or inconsistent requirements,
30.36 Intangible property.
30.37 Property trust relationship. except as provided in §§ 30.4, and 30.14
or unless specifically required by Fed-
PROCUREMENT STANDARDS eral statute or Executive Order. Non-
30.40 Purpose of procurement standards. profit organizations that implement
30.41 Recipient responsibilities. Federal programs for the States are
30.42 Codes of conduct. also subject to State requirements.
298
§ 30.2 Definitions. and administered under procurement

(a) Accrued expenditures means the laws and regulations.
charges incurred by the recipient dur- (f) Cash contributions means the re-
ing a given period requiring the provi- cipient’s cash outlay, including the
sion of funds for: outlay of money contributed to the re-
(1) Goods and other tangible property cipient by third parties.
received; (g) Closeout means the process by
(2) Services performed by employees, which a Federal awarding agency de-
contractors, subrecipients, and other termines that all applicable adminis-
payees; and trative actions and all required work of
(3) Other amounts becoming owed the award have been completed by the
under programs for which no current recipient and Federal awarding agency.
services or performance is required. (h) Contract means a procurement
(b) Accrued income means the sum contract under an award or subaward,
of: and a procurement subcontract under a
(1) Earnings during a given period recipient’s or subrecipient’s contract.
from; (i) Cost sharing or matching means
(i) Services performed by the recipi- that portion of project or program
ent; and costs not borne by the Federal Govern-
(ii) Goods and other tangible prop- ment.
erty delivered to purchasers; and (j) Date of completion means the
(2) Amounts becoming owed to the date on which all work under an award
recipient for which no current services is completed or the date on the award
or performance is required by the re- document, or any supplement or
cipient. amendment thereto, on which Federal
(c) Acquisition cost of equipment sponsorship ends.
means the net invoice price of the (k) Disallowed costs means those
equipment, including the cost of modi- charges to an award that the Federal
fications, attachments, accessories, or awarding agency determines to be un-
auxiliary apparatus necessary to make allowable, in accordance with the ap-
the property usable for the purpose for plicable Federal cost principles or
which it was acquired. Other charges, other terms and conditions contained
such as the cost of installation, trans- in the award.
portation, taxes, duty or protective in- (l) Equipment means tangible non-
transit insurance, shall be included or expendable personal property including
excluded from the unit acquisition cost exempt property charged directly to
in accordance with the recipient’s reg- the award having a useful life of more
ular accounting practices. than one year and an acquisition cost
(d) Advance means a payment made of $5000 or more per unit. However, con-
by Treasury check or other appropriate sistent with recipient policy, lower
payment mechanism to a recipient limits may be established.
upon its request either before outlays (m) Excess property means property
are made by the recipient or through under the control of any Federal
the use of predetermined payment awarding agency that, as determined
schedules. by the head thereof, is no longer re-
(e) Award means financial assistance quired for its needs or the discharge of
that provides support or stimulation to its responsibilities.
accomplish a public purpose. Awards (n) Exempt property means tangible
include grants and other agreements in personal property acquired in whole or
the form of money or property in lieu in part with Federal funds, where the
of money, by the Federal Government Federal awarding agency has statutory
to an eligible recipient. The term does authority to vest title in the recipient
not include: technical assistance, without further obligation to the Fed-
which provides services instead of eral Government. An example of ex-
money; other assistance in the form of empt property authority is contained
loans, loan guarantees, interest sub- in the Federal Grant and Cooperative
sidies, or insurance; direct payments of Agreement Act (31 U.S.C. 6306), for
any kind to individuals; and, contracts property acquired under an award to
which are required to be entered into conduct basic or applied research by a
299
§ 30.2 40 CFR Ch. I (7–1–00 Edition)
non-profit institution of higher edu- performed by employees, contractors,

cation or non-profit organization subrecipients and other payees and
whose principal purpose is conducting other amounts becoming owed under
scientific research. programs for which no current services
(o) Federal awarding agency means or performance are required.
the Federal agency that provides an (v) Personal property means property
award to the recipient. of any kind except real property. It
(p) Federal funds authorized means may be tangible, having physical exist-
the total amount of Federal funds obli- ence, or intangible, having no physical
gated by the Federal Government for existence, such as copyrights, patents,
use by the recipient. This amount may or securities.
include any authorized carryover of un- (w) Prior approval means written ap-
obligated funds from prior funding pe- proval by an authorized official evi-
riods when permitted by agency regula- dencing prior consent.
tions or agency implementing instruc- (x) Program income means gross in-
tions. come earned by the recipient that is di-
(q) Federal share of real property, rectly generated by a supported activ-
equipment, or supplies means that per- ity or earned as a result of the award
centage of the property’s acquisition (see exclusions in § 30.24 (e) and (h)).
costs and any improvement expendi- Program income includes, but is not
tures paid with Federal funds. limited to, income from fees for serv-
(r) Funding period means the period ices performed, the use or rental of real
of time when Federal funding is avail- or personal property acquired under
able for obligation by the recipient. federally-funded projects, the sale of
(s) Intangible property and debt in- commodities or items fabricated under
struments means, but is not limited to, an award, license fees and royalties on
trademarks, copyrights, patents and patents and copyrights, and interest on
patent applications and such property loans made with award funds. Interest
as loans, notes and other debt instru- earned on advances of Federal funds is
ments, lease agreements, stock and not program income. Except as other-
other instruments of property owner- wise provided in Federal awarding
ship, whether considered tangible or in- agency regulations or the terms and
tangible. conditions of the award, program in-
(t) Obligations means the amounts of come does not include the receipt of
orders placed, contracts and grants principal on loans, rebates, credits, dis-
awarded, services received and similar counts, etc., or interest earned on any
transactions during a given period that of them.
require payment by the recipient dur- (y) Project costs means all allowable
ing the same or a future period. costs, as set forth in the applicable
(u) Outlays or expenditures means Federal cost principles, incurred by a
charges made to the project or pro- recipient and the value of the contribu-
gram. They may be reported on a cash tions made by third parties in accom-
or accrual basis. For reports prepared plishing the objectives of the award
on a cash basis, outlays are the sum of during the project period.
cash disbursements for direct charges (z) Project period means the period
for goods and services, the amount of established in the award document dur-
indirect expense charged, the value of ing which Federal sponsorship begins
third party in-kind contributions ap- and ends.
plied and the amount of cash advances (aa) Property means, unless other-
and payments made to subrecipients. wise stated, real property, equipment,
For reports prepared on an accrual intangible property and debt instru-
basis, outlays are the sum of cash dis- ments.
bursements for direct charges for goods (bb) Real property means land, in-
and services, the amount of indirect excluding land improvements, structures
pense incurred, the value of in-kind and appurtenances thereto, but ex-
contributions applied, and the net includes movable machinery and equip-
crease (or decrease) in the amounts ment.
owed by the recipient for goods and (cc) Recipient means an organization
other property received, for services receiving financial assistance directly
300
from Federal awarding agencies to even if the agreement is called a con-

carry out a project or program. The tract, but does not include procure-
term includes public and private insti- ment of goods and services nor does it
tutions of higher education, public and include any form of assistance which is
private hospitals, and other quasi-pub- excluded from the definition of
lic and private non-profit organizations ‘‘award’’ in paragraph (e) of this sec-
such as, but not limited to, community tion.
action agencies, research institutes, (gg) Subrecipient means the legal en-
educational associations, and health tity to which a subaward is made and
centers. The term may include com- which is accountable to the recipient
mercial organizations, foreign or inter- for the use of the funds provided. The
national organizations (such as agen- term may include foreign or inter-
cies of the United Nations) which are national organizations (such as agen-
recipients, subrecipients, or contrac- cies of the United Nations) at the dis-
tors or subcontractors of recipients or cretion of the Federal awarding agen-
subrecipients at the discretion of the cy.
Federal awarding agency. The term (hh) Supplies means all personal
does not include government-owned property excluding equipment, intan-
contractor-operated facilities or re- gible property, and debt instruments as
search centers providing continued defined in this section, and inventions
support for mission-oriented, large- of a contractor conceived or first actu-
scale programs that are government- ally reduced to practice in the perform-
owned or controlled, or are designated ance of work under a funding agree-
as federally-funded research and devel- ment (‘‘subject inventions’’), as defined
opment centers. in 37 CFR part 401, ‘‘Rights to Inven-
(dd) Research and development tions Made by Nonprofit Organizations
means all research activities, both and Small Business Firms Under Gov-
basic and applied, and all development ernment Grants, Contracts, and Coop-
activities that are supported at univer- erative Agreements.’’
sities, colleges, and other non-profit in- (ii) Suspension means an action by a
stitutions. ‘‘Research’’ is defined as a Federal awarding agency that tempo-
systematic study directed toward fuller rarily withdraws Federal sponsorship
scientific knowledge or understanding under an award, pending corrective ac-
of the subject studied. ‘‘Development’’ tion by the recipient or pending a deci-
is the systematic use of knowledge and sion to terminate the award by the
understanding gained from research di- Federal awarding agency. Suspension
rected toward the production of useful of an award is a separate action from
materials, devices, systems, or meth- suspension under Federal agency regu-
ods, including design and development lations implementing Executive Orders
of prototypes and processes. The term 12549 and 12689, ‘‘Debarment and Sus-
research also includes activities in- pension.’’
volving the training of individuals in (jj) Termination means the cancella-
research techniques where such activi- tion of Federal sponsorship, in whole or
ties utilize the same facilities as other in part, under an agreement at any
research and development activities time prior to the date of completion.
and where such activities are not in- (kk) Third party in-kind contribu-
cluded in the instruction function. tions means the value of non-cash con-
(ee) Small award means a grant or tributions provided by non-Federal
cooperative agreement not exceeding third parties. Third party in-kind con-
the small purchase threshold fixed at tributions may be in the form of real
41 U.S.C. 403(11) (currently $100,000). property, equipment, supplies and
(ff) Subaward means an award of fi- other expendable property, and the
nancial assistance in the form of value of goods and services directly
money, or property in lieu of money, benefiting and specifically identifiable
made under an award by a recipient to to the project or program.
an eligible subrecipient or by a sub- (ll) Unliquidated obligations, for fi-
recipient to a lower tier subrecipient. nancial reports prepared on a cash
The term includes financial assistance basis, means the amount of obligations
when provided by any legal agreement, incurred by the recipient that have not
301
§ 30.3 40 CFR Ch. I (7–1–00 Edition)
been paid. For reports prepared on an 110 shall be applied to subrecipients

accrued expenditure basis, they rep- performing work under awards if such
resent the amount of obligations in- subrecipients are institutions of higher
curred by the recipient for which an education, hospitals or other non-profit
outlay has not been recorded. organizations. State and local govern-
(mm) Unobligated balance means the ment subrecipients are subject to the
portion of the funds authorized by the provisions of regulations in 40 CFR
Federal awarding agency that has not part 31 implementing the grants man-
been obligated by the recipient and is
agement common rule, ‘‘Uniform Ad-
determined by deducting the cumu-
ministrative Requirements for Grants
lative obligations from the cumulative
funds authorized. and Cooperative Agreements to State
(nn) Unrecovered indirect cost means and Local Governments,’’.
the difference between the amount
§ 30.6 Availability of OMB circulars.
awarded and the amount which could
have been awarded under the recipi- OMB circulars cited in this part are
ent’s approved negotiated indirect cost available from the Office of Manage-
rate. ment and Budget (OMB) by writing to
(oo) Working capital advance means the Executive Office of the President,
a procedure where by funds are ad- Publications Service, 725 17th Street,
vanced to the recipient to cover its es- NW., Suite 200, Washington, DC 20503.
timated disbursement needs for a given
initial period.
Subpart B—Pre-Award
§ 30.3 Effect on other issuances. Requirements
For awards subject to Circular A–110,
§ 30.10 Purpose.
all administrative requirements of
codified program regulations, program Sections 30.11 through 30.18 prescribe
manuals, handbooks and other non- forms and instructions and other pre-
regulatory materials which are incon- award matters to be used in applying
sistent with the requirements of Cir- for Federal awards.
cular A–110 shall be superseded, except
to the extent they are required by stat- § 30.11 Pre-award policies.
ute, or authorized in accordance with (a) Use of grants and cooperative agree-
the deviations provision in § 30.4. ments, and contracts. In each instance,
§ 30.4 Deviations. EPA shall decide on the appropriate
award instrument (i.e., grant, coopera-
The Office of Management and Budg- tive agreement, or contract). The Fed-
et (OMB) may grant exceptions for eral Grant and Cooperative Agreement
classes of grants or recipients subject
Act (31 U.S.C. 6301–08) governs the use
to the requirements of Circular A–110
of grants, cooperative agreements and
when exceptions are not prohibited by
contracts. A grant or cooperative
statute. However, in the interest of
maximum uniformity, exceptions from agreement shall be used only when the
the requirements of Circular A–110 principal purpose of a transaction is to
shall be permitted only in unusual cir- accomplish a public purpose of support
cumstances. EPA may apply more re- or stimulation authorized by Federal
strictive requirements to a class of re- statute. The statutory criterion for
cipients when approved by OMB. EPA choosing between grants and coopera-
may apply less restrictive require- tive agreements is that for the latter,
ments when awarding small awards, ex- ‘‘substantial involvement is expected
cept for those requirements which are between the executive agency and the
statutory. Exceptions on a case-by-case State, local government, or other re-
basis may also be made by EPA. cipient when carrying out the activity
contemplated in the agreement.’’ Con-
§ 30.5 Subawards. tracts shall be used when the principal
Unless sections of Circular A–110 spe- purpose is acquisition of property or
cifically exclude subrecipients from services for the direct benefit or use of
coverage, the provisions of Circular A– the Federal Government.
302
(b) Public notice and priority setting. § 30.14 Special award conditions.
EPA shall notify the public of its in-
If an applicant or recipient: has a his-
tended funding priorities for discre-
tory of poor performance, is not finan-
tionary grant programs, unless funding cially stable; has a management sys-
priorities are established by Federal tem that does not meet the standards
statute. prescribed in Circular A–110; has not
(c) By submitting an application to conformed to the terms and conditions
EPA, the applicant grants EPA permis- of a previous award; or is not otherwise
sion to share the application with tech- responsible, EPA may impose addi-
nical reviewers both within and outside tional requirements as needed, pro-
the Agency. vided that such applicant or recipient
is notified in writing as to: the nature
§ 30.12 Forms for applying for Federal of the additional requirements, the rea-
assistance. son why the additional requirements
(a) EPA shall comply with the appli- are being imposed, the nature of the
cable report clearance requirements of corrective action needed, the time al-
5 CFR part 1320, ‘‘Controlling Paper- lowed for completing the corrective ac-
work Burdens on the Public,’’ with re- tions, and the method for requesting
gard to all forms used by EPA in place reconsideration of the additional re-
of or as a supplement to the Standard quirements imposed. Any special con-
Form 424 (SF–424) series. ditions shall be promptly removed once
(b) Applicants shall use the SF–424 the conditions that prompted them
series or those forms and instructions have been corrected.
prescribed by EPA.
§ 30.15 Metric system of measurement.
(c) For Federal programs covered by
Executive Order 12372, ‘‘Intergovern- The Metric Conversion Act, as
mental Review of Federal Programs,’’ amended by the Omnibus Trade and
the applicant shall complete the appro- Competitiveness Act (15 U.S.C. 205), de-
priate sections of the SF–424 (Applica- clares that the metric system is the
tion for Federal Assistance) indicating preferred measurement system for U.S.
whether the application was subject to trade and commerce. The Act requires
review by the State Single Point of each Federal agency to establish a date
Contact (SPOC). The name and address or dates in consultation with the Sec-
of the SPOC for a particular State can retary of Commerce, when the metric
be obtained from EPA or the Catalog of system of measurement will be used in
Federal Domestic Assistance. The the agency’s procurements, grants, and
other business-related activities. Met-
SPOC shall advise the applicant wheth-
ric implementation may take longer
er the program for which application is
where the use of the system is initially
made has been selected by that State
impractical or likely to cause signifi-
for review.
cant inefficiencies in the accomplish-
(d) If the SF–424 form is not used ment of federally-funded activities.
EPA should indicate whether the appli- EPA shall follow the provisions of Ex-
cation is subject to review by the State ecutive Order 12770, ‘‘Metric Usage in
under Executive Order 12372. Federal Government Programs.’’
§ 30.13 Debarment and suspension. § 30.16 Resource Conservation and Re-
EPA and recipients shall comply covery Act (RCRA).
with the nonprocurement debarment Resource Conservation and Recovery
and suspension regulations in 40 CFR Act (RCRA) (Public Law 94–580 codified
part 32 implementing Executive Orders at 42 U.S.C. 6962). Under the Act, any
12549 and 12689, ‘‘Debarment and Sus- State agency or agency of a political
pension.’’ 40 CFR part 32 restricts sub- subdivision of a State which is using
awards and contracts with certain par- appropriated Federal funds must com-
ties that are debarred, suspended or ply with Section 6002. Section 6002 re-
otherwise excluded from or ineligible quires that preference be given in pro-
for participation in Federal assistance curement programs to the purchase of
programs or activities. specific products containing recycled
303
§ 30.17 40 CFR Ch. I (7–1–00 Edition)
materials identified in guidelines de- systems, methods for making pay-

veloped by EPA (40 CFR parts 247 ments and rules for: satisfying cost
through 254). Accordingly, State and sharing and matching requirements,
local institutions of higher education, accounting for program income, budget
hospitals, and non-profit organizations revision approvals, making audits, de-
that receive direct Federal awards or termining allowability of cost, and es-
other Federal funds shall give pref- tablishing fund availability.
erence in their procurement programs
funded with Federal funds to the pur- § 30.21 Standards for financial man-
chase of recycled products pursuant to agement systems.
EPA’s guidelines. Further, pursuant to (a) EPA shall require recipients to re-
Executive Order 12873 (dated October late financial data to performance data
20, 1993) recipients are to print docu- and develop unit cost information
ments/reports prepared under an EPA whenever practical.
award of assistance double sided on re- (b) Recipients’ financial management
cycled paper. This requirement does systems shall provide for the following.
not apply to Standard Forms. These (1) Accurate, current and complete
forms are printed on recycled paper as disclosure of the financial results of
available through the General Services each federally-sponsored project or
Administration. program in accordance with the report-
ing requirements set forth in § 30.52. If
§ 30.17 Certifications and representa- EPA requires reporting on an accrual
tions. basis from a recipient that maintains
Unless prohibited by statute or codi- its records on other than an accrual
fied regulation, EPA will allow recipi- basis, the recipient shall not be re-
ents to submit certifications and rep- quired to establish an accrual account-
resentations required by statute, Exec- ing system. These recipients may de-
utive Order, or regulation on an annual velop such accrual data for its reports
basis, if the recipients have ongoing on the basis of an analysis of the docu-
and continuing relationships with the mentation on hand.
agency. Annual certifications and rep- (2) Records that identify adequately
resentations shall be signed by respon- the source and application of funds for
sible officials with the authority to en- federally-sponsored activities. These
sure recipients’ compliance with the records shall contain information per-
pertinent requirements. taining to Federal awards, authoriza-
tions, obligations, unobligated bal-
§ 30.18 Hotel and motel fire safety. ances, assets, outlays, income and in-
The Hotel and Motel Fire Safety Act terest.
of 1990 (Public Law 101–391) establishes (3) Effective control over and ac-
a number of fire safety standards which countability for all funds, property and
must be met for hotels and motels. The other assets. Recipients shall ade-
law provides further that Federal funds quately safeguard all such assets and
may not be used to sponsor a con- assure they are used solely for author-
ference, meeting, or training seminar ized purposes.
held in a hotel or motel which does not (4) Comparison of outlays with budg-
meet the law’s fire protection and con- et amounts for each award. Whenever
trol guidelines. If necessary, the head appropriate, financial information
of the Federal agency may waive this should be related to performance and
prohibition in the public interest. unit cost data.
(5) Written procedures to minimize
Subpart C—Post-Award the time elapsing between the transfer
Requirements of funds to the recipient from the U.S.
Treasury and the issuance or redemp-
FINANCIAL AND PROGRAM MANAGEMENT tion of checks, warrants or payments
by other means for program purposes
§ 30.20 Purpose of financial and pro- by the recipient. To the extent that the
gram management. provisions of the Cash Management Im-
Sections 30.21 through 30.28 prescribe provement Act (CMIA) (Pub. L. 101–453)
standards for financial management govern, payment methods of State
304
agencies, instrumentalities, and fiscal the minimum amounts needed and be

agents shall be consistent with CMIA timed to be in accordance with the ac-
Treasury-State Agreements or the tual, immediate cash requirements of
CMIA default procedures codified at 31 the recipient organization in carrying
CFR part 205, ‘‘Withdrawal of Cash out the purpose of the approved pro-
from the Treasury for Advances under gram or project. The timing and
Federal Grant and Other Programs.’’ amount of cash advances shall be as
(6) Written procedures for deter- close as is administratively feasible to
mining the reasonableness, allocability the actual disbursements by the recipi-
and allowability of costs in accordance ent organization for direct program or
with the provisions of the applicable project costs and the proportionate
Federal cost principles and the terms share of any allowable indirect costs.
and conditions of the award. (c) Whenever possible, advances shall
(7) Accounting records including cost be consolidated to cover anticipated
accounting records that are supported cash needs for all awards made by the
by source documentation. EPA to the recipient.
(c) Where the EPA guarantees or in- (1) Advance payment mechanisms in-
sures the repayment of money bor- clude, but are not limited to, Treasury
rowed by the recipient, the recipient check and electronic funds transfer.
shall provide adequate bonding and in- (2) Advance payment mechanisms are
surance if the bonding and insurance subject to 31 CFR part 205.
requirements of the recipient are not (3) Recipients shall be authorized to
deemed adequate to protect the inter- submit requests for advances and reim-
est of the Federal Government. bursements at least monthly when
(d) Recipients shall obtain adequate electronic fund transfers are not used.
fidelity bond coverage where coverage (d) Requests for Treasury check ad-
to protect the Federal Government’s vance payment shall be submitted on
interest is insufficient. SF–270, ‘‘Request for Advance or Reim-
(e) Where bonds are required in the bursement,’’ or other forms as may be
situations described above, the bonds authorized by OMB. This form is not to
shall be obtained from companies hold- be used when Treasury check advance
ing certificates of authority as accept- payments are made to the recipient
able sureties, as prescribed in 31 CFR automatically through the use of a pre-
part 223, ‘‘Surety Companies Doing determined payment schedule or if pre-
Business with the United States.’’ cluded by special instructions for elec-
tronic funds transfer.
§ 30.22 Payment. (e) Reimbursement is the preferred
(a) Payment methods shall minimize method when the requirements in para-
the time elapsing between the transfer graph (b) of this section cannot be met.
of funds from the United States Treas- EPA may also use this method on any
ury and the issuance or redemption of construction agreement, or if the
checks, warrants, or payment by other major portion of the construction
means by the recipients. Payment project is accomplished through pri-
methods of State agencies or instru- vate market financing or Federal
mentalities shall be consistent with loans, and the Federal assistance con-
Treasury-State CMIA agreements or stitutes a minor portion of the project.
default procedures codified at 31 CFR (1) When the reimbursement method
part 205. is used, EPA shall make payment with-
(b) Recipients are to be paid in ad- in 30 days after receipt of the billing,
vance, provided they maintain or dem- unless the billing is improper.
onstrate the willingness to maintain: (2) Recipients shall be authorized to
written procedures that minimize the submit request for reimbursement at
time elapsing between the transfer of least monthly when electronic funds
funds and disbursement by the recipi- transfers are not used.
ent; and financial management sys- (f) If a recipient cannot meet the cri-
tems that meet the standards for fund teria for advance payments and EPA
control and accountability as estab- has determined that reimbursement is
lished in § 30.21. Cash advances to a re- not feasible because the recipient lacks
cipient organization shall be limited to sufficient working capital, EPA may
305
§ 30.22 40 CFR Ch. I (7–1–00 Edition)
provide cash on a working capital ad- (2) Advances of Federal funds shall be
vance basis. Under this procedure, EPA deposited and maintained in insured
shall advance cash to the recipient to accounts whenever possible.
cover its estimated disbursement needs (j) Consistent with the national goal
for an initial period generally geared of expanding the opportunities for
to the awardee’s disbursing cycle. women-owned and minority-owned
Thereafter, EPA shall reimburse the business enterprises, recipients shall be
recipient for its actual cash disburse- encouraged to use women-owned and
ments. The working capital advance minority-owned banks (a bank which is
method of payment shall not be used owned at least 50 percent by women or
for recipients unwilling or unable to minority group members).
provide timely advances to their sub- (k) Recipients shall maintain ad-
recipient to meet the subrecipient’s ac- vances of Federal funds in interest
tual cash disbursements. bearing accounts, unless paragraph (k)
(1), (2) or (3) of this section applies.
(g) To the extent available, recipi-
(1) The recipient receives less than
ents shall disburse funds available from
$120,000 in Federal awards per year.
repayments to and interest earned on a (2) The best reasonably available in-
revolving fund, program income, re- terest bearing account would not be ex-
bates, refunds, contract settlements, pected to earn interest in excess of $250
audit recoveries and interest earned on per year on Federal cash balances.
such funds before requesting additional (3) The depository would require an
cash payments. average or minimum balance so high
(h) Unless otherwise required by stat- that it would not be feasible within the
ute, EPA shall not withhold payments expected Federal and non-Federal cash
for proper charges made by recipients resources.
at any time during the project period (l) For those entities where CMIA
unless paragraph (h) (1) or (2) of this and its implementing regulations do
section applies. not apply, interest earned on Federal
(1) A recipient has failed to comply advances deposited in interest bearing
with the project objectives, the terms accounts shall be remitted annually to
and conditions of the award, or Federal Department of Health and Human
reporting requirements. Services, Payment Management Sys-
(2) The recipient or subrecipient is tem, P.O. Box 6021, Rockville, MD
delinquent in a debt to the United 20852. Interest amounts up to $250 per
States as defined in OMB Circular A– year may be retained by the recipient
129, ‘‘Managing Federal Credit Pro- for administrative expense. State uni-
grams.’’ Under such conditions, EPA versities and hospitals shall comply
with CMIA, as it pertains to interest. If
may, upon reasonable notice, inform
an entity subject to CMIA uses its own
the recipient that payments shall not
funds to pay pre-award costs for discre-
be made for obligations incurred after
tionary awards without prior written
a specified date until the conditions
approval from EPA, it waives its right
are corrected or the indebtedness to
to recover the interest under CMIA. In
the Federal Government is liquidated. keeping with Electronic Funds Trans-
(i) Standards governing the use of fer rules, (31 CFR part 206), interest
banks and other institutions as deposi- should be remitted to the HHS Pay-
tories of funds advanced under awards ment Management System through an
are as follows. electronic medium such as the
(1) Except for situations described in FEDWIRE Deposit system. Recipients
paragraph (i)(2) of this section, EPA which do not have this capability
shall not require separate depository should use a check.
accounts for funds provided to a recipi- (m) Except as noted elsewhere in Cir-
ent or establish any eligibility require- cular A–110, only the following forms
ments for depositories for funds pro- shall be authorized for the recipients in
vided to a recipient. However, recipi- requesting advances and reimburse-
ents must be able to account for the re- ments. EPA shall not require more
ceipt, obligation and expenditure of than an original and two copies of
funds. these forms.
306
(1) SF–270, Request for Advance or Re- ment personnel, the EPA Award Offi-
imbursement. EPA shall adopt the SF– cial authorizes recipients to donate
270 as a standard form for all non- buildings or land for construction or
construction programs when electronic facilities acquisition projects or long-
funds transfer or predetermined ad- term use, the value of the donated
vance methods are not used. However, property for cost sharing or matching
EPA has the option of using this form shall be the lesser of paragraph (c) (1)
for construction programs in lieu of or (2) of this section.
the SF–271, ‘‘Outlay Report and Re- (1) The certified value of the remain-
quest for Reimbursement for Construc- ing life of the property recorded in the
tion Programs.’’ recipient’s accounting records at the
(2) SF–271, Outlay Report and Request time of donation.
for Reimbursement for Construction Pro- (2) The current fair market value.
grams. EPA shall adopt the SF–271 as However, when there is sufficient jus-
the standard form to be used for re- tification, the EPA Award Official may
questing reimbursement for construc- approve the use of the current fair
tion programs. However, the SF–270 market value of the donated property,
may be substituted when EPA deter- even if it exceeds the certified value at
mines that it provides adequate infor- the time of donation to the project.
mation to meet its needs. (d) Volunteer services furnished by
professional and technical personnel,
§ 30.23 Cost sharing or matching. consultants, and other skilled and un-
EPA shall not require cost sharing or skilled labor may be counted as cost
matching unless required by statute, sharing or matching if the service is an
regulation, Executive Order, or official integral and necessary part of an ap-
Agency policy. proved project or program. Rates for
(a) All contributions, including cash volunteer services shall be consistent
and third party in-kind, shall be ac- with those paid for similar work in the
cepted as part of the recipient’s cost recipient’s organization. In those in-
sharing or matching when such con- stances in which the required skills are
tributions meet all of the following cri- not found in the recipient organization,
teria. rates shall be consistent with those
(1) Are verifiable from the recipient’s paid for similar work in the labor mar-
records. ket in which the recipient competes for
(2) Are not included as contributions the kind of services involved. In either
for any other federally-assisted project case, paid fringe benefits that are rea-
or program. sonable, allowable, and allocable may
(3) Are necessary and reasonable for be included in the valuation.
proper and efficient accomplishment of (e) When an employer other than the
project or program objectives. recipient furnishes the services of an
(4) Are allowable under the applica- employee, these services shall be val-
ble cost principles. ued at the employee’s regular rate of
(5) Are not paid by the Federal Gov- pay (plus an amount of fringe benefits
ernment under another award, except that are reasonable, allowable, and al-
where authorized by Federal statute to locable, but exclusive of overhead
be used for cost sharing or matching. costs), provided these services are in
(6) Are identified in the approved the same skill for which the employee
budget. is normally paid.
(7) Conform to other provisions of (f) Donated supplies may include
Circular A–110, as applicable. such items as expendable equipment,
(b) Unrecovered indirect costs may be office supplies, laboratory supplies or
included as part of cost sharing or workshop and classroom supplies.
matching only with the prior approval Value assessed to donated supplies in-
of the EPA Award Official. cluded in the cost sharing or matching
(c) Values for recipient contributions share shall be reasonable and shall not
of services and property shall be estab- exceed the fair market value of the
lished in accordance with the applica- property at the time of the donation.
ble cost principles. If, after consulta- (g) The method used for determining
tion with Agency property manage- cost sharing or matching for donated
307
§ 30.24 40 CFR Ch. I (7–1–00 Edition)
equipment, buildings and land for rial, equipment, buildings and land
which title passes to the recipient may shall be documented.
differ according to the purpose of the
award, if paragraph (g) (1) or (2) of this § 30.24 Program income.
section applies. (a) EPA shall apply the standards set
(1) If the purpose of the award is to forth in this section in requiring recipi-
assist the recipient in the acquisition ent organizations to account for pro-
of equipment, buildings or land, the gram income related to projects fi-
total value of the donated property nanced in whole or in part with Federal
may be claimed as cost sharing or funds.
matching. (b) Except as provided in paragraph
(2) If the purpose of the award is to (h) of this section, program income
support activities that require the use earned during the project period shall
of equipment, buildings or land, nor- be retained by the recipient and, in ac-
mally only depreciation or use charges cordance with EPA regulations or the
for equipment and buildings may be terms and conditions of the award,
made. However, the full value of equip- shall be used in one or more of the
ment or other capital assets and fair ways listed in the following.
rental charges for land may be allowed,
(1) Added to funds committed to the
provided that the EPA technical pro-
project by EPA and recipient and used
gram office, after consultation with
to further eligible project or program
EPA property management personnel,
objectives.
has approved the charges.
(2) Used to finance the non-Federal
(h) The value of donated property
share of the project or program.
shall be determined in accordance with
the usual accounting policies of the re- (3) Deducted from the total project or
cipient, with the following qualifica- program allowable cost in determining
tions. the net allowable costs on which the
(1) The value of donated land and Federal share of costs is based.
buildings shall not exceed its fair mar- (c) When EPA authorizes the disposi-
ket value at the time of donation to tion of program income as described in
the recipient as established by an inde- paragraphs (b)(1) or (2) of this section,
pendent appraiser (e.g., certified real program income in excess of any limits
property appraiser or General Services stipulated shall be used in accordance
Administration representative) and with paragraph (b)(3) of this section.
certified by a responsible official of the (d) In the event that the EPA does
recipient. not specify in its regulations or the
(2) The value of donated equipment terms and conditions of the award how
shall not exceed the fair market value program income is to be used, para-
of equipment of the same age and con- graph (b)(3) of this section shall apply
dition at the time of donation. automatically to all projects or pro-
(3) The value of donated space shall grams except research. For awards that
not exceed the fair rental value of com- support research, paragraph (b)(1) of
parable space as established by an inde- this section shall apply automatically
pendent appraisal of comparable space unless EPA indicates in the terms and
and facilities in a privately-owned conditions another alternative on the
building in the same locality. award or the recipient is subject to spe-
(4) The value of loaned equipment cial award conditions, as indicated in
shall not exceed its fair rental value. § 30.14.
(5) The following requirements per- (e) Unless EPA regulations or the
tain to the recipient’s supporting terms and conditions of the award pro-
records for in-kind contributions from vide otherwise, recipients shall have no
third parties. obligation to the Federal Government
(i) Volunteer services shall be docu- regarding program income earned after
mented and, to the extent feasible, sup- the end of the project period.
ported by the same methods used by (f) If authorized by EPA regulations
the recipient for its own employees. or the terms and conditions of the
(ii) The basis for determining the award, costs incident to the generation
valuation for personal service, mate- of program income may be deducted
308
from gross income to determine pro- (2) The technical program office for
gram income, provided these costs have the following:
not been charged to the award. (i) Change in a key person specified
(g) Proceeds from the sale of property in the application or award document.
shall be handled in accordance with the (ii) The absence for more than three
requirements of the Property Stand- months, or a 25 percent reduction in
ards (See §§ 30.30 through 30.37). time devoted to the project, by the ap-
(h) Unless EPA regulations or the proved project director or principal in-
terms and condition of the award pro- vestigator.
vide otherwise, recipients shall have no (iii) The transfer of amounts budg-
obligation to the Federal Government eted for indirect costs to absorb in-
with respect to program income earned creases in direct costs, or vice versa.
from license fees and royalties for
(iv) The transfer of funds allotted for
copyrighted material, patents, patent
training allowances (direct payment to
applications, trademarks, and inven-
tions produced under an award. How- trainees) to other categories of ex-
ever, Patent and Trademark Amend- pense.
ments (35 U.S.C. 18) apply to inventions (v) Unless described in the applica-
made under an experimental, develop- tion and funded in the approved award,
mental, or research award. the subaward, transfer or contracting
out of any work under an award. This
§ 30.25 Revision of budget and pro- provision does not apply to the pur-
gram plans. chase of supplies, material, equipment
(a) The budget plan is the financial or general support services.
expression of the project or program as (d) No other prior approval require-
approved during the award process. The ments for specific items may be im-
budget shall include both the Federal posed unless a deviation has been ap-
and non-Federal share. It shall be re- proved by OMB.
lated to performance for program eval- (e) Except for requirements listed in
uation purposes whenever appropriate. paragraphs (c)(1)(i) and (ii) of this sec-
(b) Recipients are required to report tion, the EPA Award Official may
deviations from budget and program waive cost-related and administrative
plans, and request prior approvals for prior written approvals required by
budget and program plan revisions, in this part and OMB cost principles. For
accordance with this section. awards that support research, these
(c) For nonconstruction awards, un- prior approval requirements are auto-
less EPA regulations provide other- matically waived unless:
wise, recipients shall request prior (1) EPA provides otherwise in the
written approvals from: award or agency regulation or
(1) The EPA Award Official for the (2) One of the conditions in paragraph
following: (f)(2)(i) of this section applies.
(i) Change in the scope or the objec-
(f) Recipients are authorized without
tive of the project or program (even if
prior approval or a waiver to:
there is no associated budget revision
requiring prior written approval). (1) Incur pre-award costs 90 calendar
(ii) The need for additional Federal days prior to award.
funding. (i) Pre-award costs incurred more
(iii) The inclusion of costs that re- than 90 calendar days prior to award
quire prior approval in accordance with require the prior approval of the EPA
OMB Circular A–21, ‘‘Cost Principles Award Official.
for Institutions of Higher Education,’’ (ii) The applicant must include all
OMB Circular A–122, ‘‘Cost Principles pre-award costs in its application.
for Non-Profit Organizations,’’ or 45 (iii) The applicant incurs such costs
CFR part 74 appendix E, ‘‘Principles for at its own risk (i.e., EPA is under no
Determining Costs Applicable to Re- obligation to reimburse such costs if
search and Development under Grants for any reason the recipient does not
and Contracts with Hospitals,’’ or 48 receive an award or if the award is less
CFR part 31, ‘‘Contract Cost Principles than anticipated and inadequate to
and Procedures,’’ as applicable. cover such costs).
309
§ 30.26 40 CFR Ch. I (7–1–00 Edition)
(iv) EPA will only allow pre-award (i) For construction awards, recipi-
costs without approval if there are suf- ents shall request prior written ap-
ficient programmatic reasons for in- proval promptly from EPA for budget
curring the expenditures prior to the revisions whenever paragraph (h)(1), (2)
award (e.g., time constraints, weather or (3) of this section applies.
factors, etc.), they are in conformance (1) The revision results from changes
with the appropriate cost principles, in the scope or the objective of the
and any procurement complies with project or program.
the requirements of this rule. (2) The need arises for additional
(2) Extend the expiration date of the Federal funds to complete the project.
award one time for up to 12 months. (3) A revision is desired which in-
(i) A one-time extension may not be volves specific costs for which prior
initiated if: written approval requirements may be
(A) The terms and conditions of the imposed consistent with applicable
award prohibit the extension; OMB cost principles listed in § 30.27.
(B) The extension requires additional (j) No other prior approval require-
Federal funds; or ments for specific items may be im-
(C) The extension involves any posed unless a deviation has been ap-
change in the approved objectives or proved by OMB.
scope of the project. (k) When EPA makes an award that
(ii) For one-time extensions, the re- provides support for both construction
cipient must notify the EPA Award Of- and nonconstruction work, EPA may
ficial in writing with the supporting require the recipient to request prior
reasons and revised expiration date at approval before making any fund or
least 10 days before the expiration date budget transfers between the two types
specified in the award. of work supported.
(iii) This one-time extension may not (l) For both construction and non-
be exercised merely for the purpose of construction awards, EPA shall require
using unobligated balances. recipients to notify the agency in writ-
(3) Carry forward unobligated bal- ing promptly whenever the amount of
ances to subsequent funding periods Federal authorized funds is expected to
providing the recipient notifies the exceed the needs of the recipient for
EPA Award Official by means of the Fi- the project period by more than $5000
nancial Status Report. or five percent of the Federal award,
(g) The EPA technical program office whichever is greater. This notification
may, at its option, restrict the transfer shall not be required if an application
of funds among direct cost categories for additional funding is submitted for
or programs, functions and activities a continuation award.
for awards in which the Federal share (m) When requesting approval for
of the project exceeds $100,000 and the budget revisions, recipients shall use
cumulative amount of such transfers the budget forms that were used in the
exceeds or is expected to exceed 10 per- application unless the EPA indicates
cent of the total budget as last ap- that a letter clearly describing the de-
proved by EPA. Except as provided for tails of the request will suffice.
at paragraph (c) of this section, for (n) Within 30 calendar days from the
awards in which the Federal share is date of receipt of the request for budg-
less than $100,000 there are no restric- et revisions, EPA shall review the re-
tions on transfers of funds among di- quest and notify the recipient whether
rect cost categories. EPA shall not per- the budget revisions have been ap-
mit a transfer that would cause any proved. If the revision is still under
Federal appropriation or part thereof consideration at the end of 30 calendar
to be used for purposes other than days, EPA shall inform the recipient in
those consistent with the original in- writing of the date when the recipient
tent of the appropriation. may expect the decision.
(h) All other changes to nonconstruc-
tion budgets, except for the changes de- § 30.26 Non-Federal audits.
scribed in paragraph (j) of this section, (a) Recipients and subrecipients that
do not require prior approval. are institutions of higher education or
310
other non-profit organizations (included in Attachment C to Circular A–122 is

ing hospitals) shall be subject to the determined in accordance with the pro-
audit requirements contained in the visions of the Federal Acquisition Reg-
Single Audit Act Amendments of 1996 ulation (FAR) at 48 CFR part 31. In ad-
(31 U.S.C. 7501–7507) and revised OMB dition, EPA’s annual Appropriations
Circular A–133, ‘‘Audits of States, Acts may contain restrictions on the
Local Governments, and Non-Profit Or- use of assistance funds. For example,
ganizations.’’ the Acts may prohibit the use of funds
(b) State and local governments shall to support intervention in Federal reg-
be subject to the audit requirements ulatory or adjudicatory proceedings.
contained in the Single Audit Act (b) EPA will limit its participation in
Amendments of 1996 (31 U.S.C. 7501– the salary rate (excluding overhead)
7507) and revised OMB Circular A–133, paid to individual consultants retained
‘‘Audits of States, Local Governments, by recipients or by a recipient’s con-
and Non-Profit Organizations.’’ tractors or subcontractors to the max-
(c) For-profit hospitals not covered imum daily rate for level 4 of the Exec-
by the audit provisions of revised OMB
utive Schedule unless a greater amount
Circular A–133 shall be subject to the
is authorized by law. (Recipient’s may,
audit requirements of the Federal
however, pay consultants more than
awarding agencies.
this amount.) This limitation applies
(d) Commercial organizations shall
be subject to the audit requirements of to consultation services of designated
EPA or the prime recipient as incor- individuals with specialized skills who
porated into the award document. are paid at a daily or hourly rate. This
rate does not include transportation
[61 FR 6067, Feb. 15, 1996, as amended at 62 and subsistence costs for travel per-
FR 45939, 45944, Aug. 29, 1997] formed; recipients will pay these in ac-
§ 30.27 Allowable costs. cordance with their normal travel re-
imbursement practices. Contracts with
(a) For each kind of recipient, there firms for services which are awarded
is a set of Federal principles for deter- using the procurement requirements in
mining allowable costs. Allowability of this part are not affected by this limi-
costs shall be determined in accord- tation.
ance with the cost principles applicable
to the entity incurring the costs. Thus, § 30.28 Period of availability of funds.
allowability of costs incurred by State,
local or federally-recognized Indian Where a funding period is specified, a
tribal governments is determined in recipient may charge to the grant only
accordance with the provisions of OMB allowable costs resulting from obliga-
Circular A–87, ‘‘Cost Principles for tions incurred during the funding pe-
State and Local Governments.’’ The al- riod and any pre-award costs author-
lowability of costs incurred by non- ized by EPA.
profit organizations is determined in
accordance with the provisions of OMB PROPERTY STANDARDS
Circular A–122, ‘‘Cost Principles for
§ 30.30 Purpose of property standards.
Non-Profit Organizations.’’ The allow-
ability of costs incurred by institutions Sections 30.31 through 30.37 set forth
of higher education is determined in uniform standards governing manage-
accordance with the provisions of OMB ment and disposition of property fur-
Circular A–21, ‘‘Cost Principles for nished by the Federal Government
Educational Institutions.’’ The allow- whose cost was charged to a project
ability of costs incurred by hospitals is supported by a Federal award. EPA
determined in accordance with the pro- shall require recipients to observe
visions of appendix E of 45 CFR part 74, these standards under awards and shall
‘‘Principles for Determining Costs Ap- not impose additional requirements,
plicable to Research and Development unless specifically required by Federal
Under Grants and Contracts with Hos- statute. The recipient may use its own
pitals.’’ The allowability of costs in- property management standards and
curred by commercial organizations procedures provided it observes the
and those non-profit organizations list- provisions of §§ 30.31 through 30.37.
311
§ 30.31 40 CFR Ch. I (7–1–00 Edition)
§ 30.31 Insurance coverage. tual and reasonable selling and fix-up

Recipients shall, at a minimum, pro- expenses, if any, from the sales pro-
vide the equivalent insurance coverage ceeds). When the recipient is author-
for real property and equipment ac- ized or required to sell the property,
quired with Federal funds as provided proper sales procedures shall be estab-
to property owned by the recipient. lished that provide for competition to
Federally-owned property need not be the extent practicable and result in the
insured unless required by the terms highest possible return.
and conditions of the award. (3) The recipient may be directed to
transfer title to the property to the
§ 30.32 Real property. Federal Government or to an eligible
EPA shall prescribe requirements for third party provided that, in such
recipients concerning the use and dis- cases, the recipient shall be entitled to
position of real property acquired in compensation for its attributable per-
whole or in part under awards. Unless centage of the current fair market
otherwise provided by statute, such re- value of the property.
quirements, at a minimum, shall con-
tain the following. § 30.33 Federally-owned and exempt
(a) Title to real property shall vest in property.
the recipient subject to the condition (a) Federally-owned property. (1) Title
that the recipient shall use the real to federally-owned property remains
property for the authorized purpose of vested in the Federal Government. Re-
the project as long as it is needed and cipients shall submit annually an in-
shall not encumber the property with- ventory listing of federally-owned
out approval of EPA. property in their custody to EPA’s
(b) The recipient shall obtain written property management staff. Upon com-
approval by EPA for the use of real pletion of the award or when the prop-
property in other federally-sponsored erty is no longer needed, the recipient
projects when the recipient determines shall report the property to EPA’s
that the property is no longer needed property management staff for further
for the purpose of the original project. utilization.
Use in other projects shall be limited
(2) If EPA has no further need for the
to those under federally-sponsored
property, it shall be declared excess
projects (i.e., awards) or programs that
and reported to the General Services
have purposes consistent with those
Administration, unless EPA has statu-
authorized for support by EPA.
(c) When the real property is no tory authority to dispose of the prop-
longer needed as provided in para- erty by alternative methods (e.g., the
graphs (a) and (b) of this section, the authority provided by the Federal
recipient shall request disposition in- Technology Transfer Act (15 U.S.C. 3710
structions from EPA or its successor (I)) to donate research equipment to
Federal awarding agency. EPA shall educational and non-profit organiza-
observe one or more of the following tions in accordance with Executive
disposition instructions. Order 12821, ‘‘Improving Mathematics
(1) The recipient may be permitted to and Science Education in Support of
retain title without further obligation the National Education Goals.’’) Ap-
to the Federal Government after it propriate instructions shall be issued
compensates the Federal Government to the recipient by EPA’s property
for that percentage of the current fair management staff.
market value of the property attrib- (b) Exempt property. When statutory
utable to the Federal participation in authority exists, EPA has the option to
the project. vest title to property acquired with
(2) The recipient may be directed to Federal funds in the recipient without
sell the property under guidelines pro- further obligation to the Federal Gov-
vided by EPA and pay the Federal Gov- ernment and under conditions EPA
ernment for that percentage of the cur- considers appropriate. Such property is
rent fair market value of the property ‘‘exempt property.’’ Should EPA not
attributable to the Federal participa- establish conditions, title to exempt
tion in the project (after deducting ac- property upon acquisition shall vest in
312
the recipient without further obliga- (f) The recipient’s property manage-
tion to the Federal Government. ment standards for equipment acquired
with Federal funds and federally-owned
§ 30.34 Equipment. equipment shall include all of the fol-
(a) Title to equipment acquired by a lowing.
recipient with Federal funds shall vest (1) Equipment records shall be main-
in the recipient, subject to conditions tained accurately and shall include the
of this section. following information.
(b) The recipient shall not use equip- (i) A description of the equipment.
ment acquired with Federal funds to (ii) Manufacturer’s serial number,
provide services to non-Federal outside model number, Federal stock number,
organizations for a fee that is less than national stock number, or other identi-
private companies charge for equiva- fication number.
lent services, unless specifically au- (iii) Source of the equipment, includ-
thorized by Federal statute, for as long ing the award number.
as the Federal Government retains an (iv) Whether title vests in the recipi-
interest in the equipment. ent or the Federal Government.
(c) The recipient shall use the equip- (v) Acquisition date (or date re-
ment in the project or program for ceived, if the equipment was furnished
which it was acquired as long as need- by the Federal Government) and cost.
ed, whether or not the project or pro- (vi) Information from which one can
gram continues to be supported by Fed- calculate the percentage of Federal
eral funds and shall not encumber the participation in the cost of the equip-
property without approval of EPA. ment (not applicable to equipment fur-
When no longer needed for the original nished by the Federal Government).
project or program, the recipient shall (vii) Location and condition of the
use the equipment in connection with equipment and the date the informa-
its other federally-sponsored activities, tion was reported.
in the following order of priority: Ac- (viii) Unit acquisition cost.
tivities sponsored by EPA, then activi- (ix) Ultimate disposition data, in-
ties sponsored by other Federal award- cluding date of disposal and sales price
ing agencies. or the method used to determine cur-
(d) During the time that equipment rent fair market value where a recipi-
is used on the project or program for ent compensates EPA for its share.
which it was acquired, the recipient (2) Equipment owned by the Federal
shall make it available for use on other Government shall be identified to indi-
projects or programs if such other use cate Federal ownership.
will not interfere with the work on the (3) A physical inventory of equipment
project or program for which the equip- shall be taken and the results rec-
ment was originally acquired. First onciled with the equipment records at
preference for such other use shall be least once every two years. Any dif-
given to other projects or programs ferences between quantities deter-
sponsored by EPA; second preference mined by the physical inspection and
shall be given to projects or programs those shown in the accounting records
sponsored by other Federal awarding shall be investigated to determine the
agencies. If the equipment is owned by causes of the difference. The recipient
the Federal Government, use on other shall, in connection with the inven-
activities not sponsored by the Federal tory, verify the existence, current uti-
Government shall be permissible if au- lization, and continued need for the
thorized by EPA. User charges shall be equipment.
treated as program income. (4) A control system shall be in effect
(e) When acquiring replacement to insure adequate safeguards to pre-
equipment, the recipient may use the vent loss, damage, or theft of the
equipment to be replaced as trade-in or equipment. Any loss, damage, or theft
sell the equipment and use the proof equipment shall be investigated and
ceeds to offset the costs of the replace- fully documented; if the equipment was
ment equipment subject to the ap- owned by the Federal Government, the
proval of EPA. recipient shall promptly notify EPA.
313
§ 30.35 40 CFR Ch. I (7–1–00 Edition)
(5) Adequate maintenance procedures age of the recipient’s participation in

shall be implemented to keep the the cost of the original project or pro-
equipment in good condition. gram to the current fair market value
(6) Where the recipient is authorized of the equipment, plus any reasonable
or required to sell the equipment, prop- shipping or interim storage costs in-
er sales procedures shall be established curred.
which provide for competition to the (3) If the recipient is instructed to
extent practicable and result in the otherwise dispose of the equipment, the
highest possible return. recipient shall be reimbursed by EPA
(g) When the recipient no longer for such costs incurred in its disposi-
needs the equipment, the equipment tion.
may be used for other activities in ac- (4) EPA may reserve the right to
cordance with the following standards. transfer the title to the Federal Gov-
For equipment with a current per unit ernment or to a third party named by
fair market value of $5000 or more, the the Federal Government when such
recipient may retain the equipment for third party is otherwise eligible under
other uses provided that compensation existing statutes. Such transfer shall
is made to the original Federal award- be subject to the following standards.
ing agency or its successor. The (i) The equipment shall be appro-
amount of compensation shall be com- priately identified in the award or oth-
puted by applying the percentage of erwise made known to the recipient in
Federal participation in the cost of the writing.
original project or program to the cur- (ii) EPA shall issue disposition in-
rent fair market value of the equip- structions within 120 calendar days
ment. If the recipient has no need for after receipt of a final inventory. The
the equipment, the recipient shall re- final inventory shall list all equipment
quest disposition instructions from acquired with grant funds and feder-
EPA. EPA shall determine whether the ally-owned equipment. If EPA fails to
equipment can be used to meet the issue disposition instructions within
agency’s requirements. If no require- the 120 calendar day period, the recipi-
ment exists within that agency, the ent shall apply the standards of this
availability of the equipment shall be section, as appropriate.
reported to the General Services Ad- (iii) When EPA exercises its right to
ministration by EPA to determine take title, the equipment shall be sub-
whether a requirement for the equip- ject to the provisions for federally-
ment exists in other Federal agencies. owned equipment.
EPA shall issue instructions to the re-
cipient no later than 120 calendar days § 30.35 Supplies and other expendable
after the recipient’s request and the property.
following procedures shall govern. (a) Title to supplies and other ex-
(1) If so instructed or if disposition pendable property shall vest in the re-
instructions are not issued within 120 cipient upon acquisition. If there is a
calendar days after the recipient’s re- residual inventory of unused supplies
quest, the recipient shall sell the exceeding $5000 in total aggregate
equipment and reimburse EPA an value upon termination or completion
amount computed by applying to the of the project or program and the sup-
sales proceeds the percentage of Fed- plies are not needed for any other fed-
eral participation in the cost of the erally-sponsored project or program,
original project or program. However, the recipient shall retain the supplies
the recipient shall be permitted to de- for use on non-Federal sponsored ac-
duct and retain from the Federal share tivities or sell them, but shall, in ei-
$500 or ten percent of the proceeds, ther case, compensate the Federal Gov-
whichever is less, for the recipient’s ernment for its share. The amount of
selling and handling expenses. compensation shall be computed in the
(2) If the recipient is instructed to same manner as for equipment.
ship the equipment elsewhere, the re- (b) The recipient shall not use sup-
cipient shall be reimbursed by the Fed- plies acquired with Federal funds to
eral Government by an amount which provide services to non-Federal outside
is computed by applying the percent- organizations for a fee that is less than
314
private companies charge for equiva- (i) Research data is defined as the re-
lent services, unless specifically au- corded factual material commonly ac-
thorized by Federal statute as long as cepted in the scientific community as
the Federal Government retains an in- necessary to validate research findings,
terest in the supplies. but not any of the following: prelimi-
nary analyses, drafts of scientific pa-
§ 30.36 Intangible property. pers, plans for future research, peer re-
(a) The recipient may copyright any views, or communications with col-
work that is subject to copyright and leagues. This ‘‘recorded’’ material ex-
was developed, or for which ownership cludes physical objects (e.g., laboratory
was purchased, under an award. EPA samples). Research data also do not in-
reserves a royalty-free, nonexclusive clude:
and irrevocable right to reproduce, (A) Trade secrets, commercial infor-
publish, or otherwise use the work for mation, materials necessary to be held
Federal purposes, and to authorize oth- confidential by a researcher until they
ers to do so. are published, or similar information
(b) Recipients are subject to applica- which is protected under law; and
ble regulations governing patents and (B) Personnel and medical informa-
inventions, including government-wide tion and similar information the dis-
regulations issued by the Department closure of which would constitute a
of Commerce at 37 CFR part 401, clearly unwarranted invasion of per-
‘‘Rights to Inventions Made by Non- sonal privacy, such as information that
profit Organizations and Small Busi- could be used to identify a particular
ness Firms Under Government Grants, person in a research study.
Contracts and Cooperative Agree- (ii) Published is defined as either
ments.’’ when:
(c) The Federal Government has the (A) Research findings are published
right to: in a peer-reviewed scientific or tech-
(1) Obtain, reproduce, publish or oth- nical journal; or
erwise use the data first produced (B) A Federal agency publicly and of-
under an award; and ficially cites the research findings in
(2) Authorize others to receive, repro- support of an agency action that has
duce, publish, or otherwise use such the force and effect of law.
data for Federal purposes. (iii) Used by the Federal Government in
(d)(1) In addition, in response to a developing an agency action that has the
Freedom of Information Act (FOIA) re- force and effect of law is defined as when
quest for research data relating to pub- an agency publicly and officially cites
lished research findings produced under the research findings in support of an
an award that were used by the Federal agency action that has the force and
Government in developing an agency effect of law.
action that has the force and effect of (e) Title to intangible property and
law, the EPA shall request, and the re- debt instruments acquired under an
cipient shall provide, within a reason- award or subaward vests upon acquisi-
able time, the research data so that tion in the recipient. The recipient
they can be made available to the pub- shall use that property for the origi-
lic through the procedures established nally-authorized purpose, and the re-
under the FOIA. If the EPA obtains the cipient shall not encumber the prop-
research data solely in response to a erty without approval of EPA. When no
FOIA request, the agency may charge longer needed for the originally au-
the requester a reasonable fee equaling thorized purpose, disposition of the in-
the full incremental cost of obtaining tangible property shall occur in accord-
the research data. This fee should re- ance with the provisions of § 30.34(g).
flect costs incurred by the agency, the [61 FR 6067, Feb. 15, 1996, as amended at 65
recipient, and applicable subrecipients. FR 14407, 14417, Mar. 16, 2000]
This fee is in addition to any fees the
agency may assess under the FOIA (5 § 30.37 Property trust relationship.
U.S.C. 552(a)(4)(A)). Real property, equipment, intangible
(2) The following definitions apply property and debt instruments that are
for purposes of this paragraph (d): acquired or improved with Federal
315
§ 30.40 40 CFR Ch. I (7–1–00 Edition)
funds shall be held in trust by the re- agent shall participate in the selection,
cipient as trustee for the beneficiaries award, or administration of a contract
of the project or program under which supported by Federal funds if a real or
the property was acquired or improved. apparent conflict of interest would be
Agencies may require recipients to involved. Such a conflict would arise
record liens or other appropriate no- when the employee, officer, or agent,
tices of record to indicate that per- any member of his or her immediate
sonal or real property has been ac- family, his or her partner, or an orga-
quired or improved with Federal funds nization which employs or is about to
and that use and disposition conditions employ any of the parties indicated
apply to the property. herein, has a financial or other interest
PROCUREMENT STANDARDS in the firm selected for an award. The
officers, employees, and agents of the
§ 30.40 Purpose of procurement stand- recipient shall neither solicit nor ac-
ards. cept gratuities, favors, or anything of
Sections 30.41 through 30.48 set forth monetary value from contractors, or
standards for use by recipients in es- parties to subagreements. However, re-
tablishing procedures for the procure- cipients may set standards for situa-
ment of supplies and other expendable tions in which the financial interest is
property, equipment, real property and not substantial or the gift is an unso-
other services with Federal funds. licited item of nominal value. The
These standards are furnished to en- standards of conduct shall provide for
sure that such materials and services disciplinary actions to be applied for
are obtained in an effective manner violations of such standards by offi-
and in compliance with the provisions cers, employees, or agents of the re-
of applicable Federal statutes and Ex- cipient.
ecutive Orders. No additional procure-
ment standards or requirements shall § 30.43 Competition.
be imposed by EPA upon recipients,
unless specifically required by Federal All procurement transactions shall
statute or Executive Order or approved be conducted in a manner to provide,
by OMB. to the maximum extent practical, open
and free competition. The recipient
§ 30.41 Recipient responsibilities. shall be alert to organizational con-
The standards contained in this part flicts of interest as well as noncompeti-
do not relieve the recipient of the con- tive practices among contractors that
tractual responsibilities arising under may restrict or eliminate competition
its contract(s). The recipient is the re- or otherwise restrain trade. In order to
sponsible authority, without recourse ensure objective contractor perform-
to EPA, regarding the settlement and ance and eliminate unfair competitive
satisfaction of all contractual and ad- advantage, contractors that develop or
ministrative issues arising out of pro- draft specifications, requirements,
curements entered into in support of statements of work, invitations for
an award or other agreement. This in- bids and/or requests for proposals shall
cludes disputes, claims, protests of be excluded from competing for such
award, source evaluation or other mat- procurements. Awards shall be made to
ters of a contractual nature. Matters the bidder or offeror whose bid or offer
concerning violation of statute are to is responsive to the solicitation and is
be referred to such Federal, State or most advantageous to the recipient,
local authority as may have proper ju- price, quality and other factors consid-
risdiction. ered. Solicitations shall clearly set
§ 30.42 Codes of conduct. forth all requirements that the bidder
or offeror shall fulfill in order for the
The recipient shall maintain written
bid or offer to be evaluated by the re-
standards of conduct governing the
cipient. Any and all bids or offers may
performance of its employees engaged
be rejected when it is in the recipient’s
in the award and administration of
contracts. No employee, officer, or interest to do so.
316
§ 30.44 Procurement procedures. tracts to encourage and facilitate par-

(a) All recipients shall establish writ- ticipation by small businesses, minor-
ten procurement procedures. These ity-owned firms, and women’s business
procedures shall provide for, at a min- enterprises.
imum, that paragraphs (a) (1), (2) and (3) Consider in the contract process
(3) of this section apply. whether firms competing for larger
(1) Recipients avoid purchasing un- contracts intend to subcontract with
necessary items. small businesses, minority-owned
(2) Where appropriate, an analysis is firms, and women’s business enter-
made of lease and purchase alter- prises.
natives to determine which would be (4) Encourage contracting with con-
the most economical and practical pro- sortiums of small businesses, minority-
curement for the Federal Government. owned firms and women’s business en-
(3) Solicitations for goods and serv- terprises when a contract is too large
ices provide for all of the following. for one of these firms to handle individ-
(i) A clear and accurate description ually.
of the technical requirements for the (5) Use the services and assistance, as
material, product or service to be pro- appropriate, of such organizations as
cured. In competitive procurements, the Small Business Administration and
such a description shall not contain the Department of Commerce’s Minor-
features which unduly restrict com- ity Business Development Agency in
petition. the solicitation and utilization of
(ii) Requirements which the bidder/ small businesses, minority-owned firms
offeror must fulfill and all other fac- and women’s business enterprises.
tors to be used in evaluating bids or (6) If the prime contractor awards
proposals. subcontracts, requiring the contractor
(iii) A description, whenever prac- to take steps in paragraphs (b)(1)
ticable, of technical requirements in through (5) of this section.
terms of functions to be performed or (c) The type of procuring instruments
performance required, including the used (e.g., fixed price contracts, cost
range of acceptable characteristics or reimbursable contracts, purchase or-
minimum acceptable standards. ders, and incentive contracts) shall be
(iv) The specific features of ‘‘brand determined by the recipient but shall
name or equal’’ descriptions that bid- be appropriate for the particular pro-
ders are required to meet when such curement and for promoting the best
items are included in the solicitation. interest of the program or project in-
(v) The acceptance, to the extent volved. The ‘‘cost-plus-a-percentage-of-
practicable and economically feasible, cost’’ or ‘‘percentage of construction
of products and services dimensioned in cost’’ methods of contracting shall not
the metric system of measurement. be used.
(vi) Preference, to the extent prac- (d) Contracts shall be made only with
ticable and economically feasible, for responsible contractors who possess
products and services that conserve the potential ability to perform suc-
natural resources and protect the envi- cessfully under the terms and condi-
ronment and are energy efficient. tions of the proposed procurement.
(b) Positive efforts shall be made by Consideration shall be given to such
recipients to utilize small businesses, matters as contractor integrity, record
minority-owned firms, and women’s of past performance, financial and
business enterprises, whenever pos- technical resources or accessibility to
sible. Recipients of Federal awards other necessary resources. In certain
shall take all of the following steps to circumstances, contracts with certain
further this goal. parties are restricted by agencies’ im-
(1) Ensure that small businesses, mi- plementation of Executive Orders 12549
nority-owned firms, and women’s busi- and 12689, ‘‘Debarment and Suspen-
ness enterprises are used to the fullest sion.’’
extent practicable. (e) Recipients shall, on request, make
(2) Make information on forthcoming available for EPA, pre-award review
opportunities available and arrange and procurement documents, such as
time frames for purchases and con- request for proposals or invitations for
317
§ 30.45 40 CFR Ch. I (7–1–00 Edition)
bids, independent cost estimates, etc., cipients shall evaluate contractor per-
when any of the following conditions formance and document, as appro-
apply. priate, whether contractors have met
(1) A recipient’s procurement proce- the terms, conditions and specifica-
dures or operation fails to comply with tions of the contract.
the procurement standards in EPA’s
implementation of Circular A–110. § 30.48 Contract provisions.
(2) The procurement is expected to The recipient shall include, in addi-
exceed the small purchase threshold tion to provisions to define a sound and
fixed at 41 U.S.C. 403 (11) (currently complete agreement, the following pro-
$100,000) and is to be awarded without visions in all contracts. The following
competition or only one bid or offer is provisions shall also be applied to sub-
received in response to a solicitation. contracts.
(3) The procurement, which is ex- (a) Contracts in excess of the small
pected to exceed the small purchase purchase threshold shall contain con-
threshold, specifies a ‘‘brand name’’ tractual provisions or conditions that
product. allow for administrative, contractual,
(4) The proposed award over the or legal remedies in instances in which
small purchase threshold is to be a contractor violates or breaches the
awarded to other than the apparent contract terms, and provide for such
low bidder under a sealed bid procure- remedial actions as may be appro-
ment. priate.
(5) A proposed contract modification (b) All contracts in excess of the
changes the scope of a contract or in- small purchase threshold shall contain
creases the contract amount by more suitable provisions for termination by
than the amount of the small purchase the recipient, including the manner by
threshold. which termination shall be effected
and the basis for settlement. In addi-
§ 30.45 Cost and price analysis.
tion, such contracts shall describe con-
Some form of cost or price analysis ditions under which the contract may
shall be made and documented in the be terminated for default as well as
procurement files in connection with conditions where the contract may be
every procurement action. Price anal- terminated because of circumstances
ysis may be accomplished in various beyond the control of the contractor.
ways, including the comparison of (c) Except as otherwise required by
price quotations submitted, market statute, an award that requires the
prices and similar indicia, together contracting (or subcontracting) for
with discounts. Cost analysis is the reconstruction or facility improvements
view and evaluation of each element of shall provide for the recipient to follow
cost to determine reasonableness, its own requirements relating to bid
allocability and allowability. guarantees, performance bonds, and
payment bonds unless the construction
§ 30.46 Procurement records. contract or subcontract exceeds
Procurement records and files for $100,000. For those contracts or sub-
purchases in excess of the small pur- contracts exceeding $100,000, EPA may
chase threshold shall include the fol- accept the bonding policy and require-
lowing at a minimum: Basis for con- ments of the recipient, provided EPA
tractor selection; justification for lack has made a determination that the
of competition when competitive bids Federal Government’s interest is ade-
or offers are not obtained; and basis for quately protected. If such a determina-
award cost or price. tion has not been made, the minimum
requirements shall be as follows.
§ 30.47 Contract administration. (1) A bid guarantee from each bidder
A system for contract administration equivalent to five percent of the bid
shall be maintained to ensure con- price. The ‘‘bid guarantee’’ shall con-
tractor conformance with the terms, sist of a firm commitment such as a
conditions and specifications of the bid bond, certified check, or other ne-
contract and to ensure adequate and gotiable instrument accompanying a
timely follow up of all purchases. Re- bid as assurance that the bidder shall,
318
upon acceptance of his bid, execute program, subaward, function or activ-

such contractual documents as may be ity supported by the award. Recipients
required within the time specified. shall monitor subawards to ensure sub-
(2) A performance bond on the part of recipients have met the audit require-
the contractor for 100 percent of the ments as delineated in § 30.26.
contract price. A ‘‘performance bond’’ (b) EPA shall prescribe the frequency
is one executed in connection with a with which the performance reports
contract to secure fulfillment of all the shall be submitted. Except as provided
contractor’s obligations under such in paragraph (f) of this section, per-
contract. formance reports shall not be required
(3) A payment bond on the part of the more frequently than quarterly or, less
contractor for 100 percent of the con- frequently than annually. Annual re-
tract price. A ‘‘payment bond’’ is one ports shall be due 90 calendar days
executed in connection with a contract after the grant year; quarterly or semi-
to assure payment as required by stat- annual reports shall be due 30 days
ute of all persons supplying labor and after the reporting period. EPA may
material in the execution of the work require annual reports before the anni-
provided for in the contract. versary dates of multiple year awards
(4) Where bonds are required in the in lieu of these requirements. The final
situations described herein, the bonds performance reports are due 90 cal-
shall be obtained from companies hold- endar days after the expiration or ter-
ing certificates of authority as accept- mination of the award.
able sureties pursuant to 31 CFR part (c) If inappropriate, a final technical
223, ‘‘Surety Companies Doing Business or performance report shall not be re-
with the United States.’’ quired after completion of the project.
(d) All negotiated contracts (except (d) When required, performance re-
those for less than the small purchase ports shall generally contain, for each
threshold) awarded by recipients shall award, brief information on each of the
include a provision to the effect that following.
the recipient, EPA, the Comptroller (1) A comparison of actual accom-
General of the United States, or any of plishments with the goals and objec-
their duly authorized representatives, tives established for the period, the
shall have access to any books, docu- findings of the investigator, or both.
ments, papers and records of the con- Whenever appropriate and the output
tractor which are directly pertinent to of programs or projects can be readily
a specific program for the purpose of quantified, such quantitative data
making audits, examinations, excerpts should be related to cost data for com-
and transcriptions. putation of unit costs.
(e) All contracts, including small (2) Reasons why established goals
purchases, awarded by recipients and were not met, if appropriate.
their contractors shall contain the pro- (3) Other pertinent information in-
curement provisions of the appendix to cluding, when appropriate, analysis
Circular A–110, as applicable. and explanation of cost overruns or
high unit costs.
REPORTS AND RECORDS (e) Recipients shall not be required to
submit more than the original and two
§ 30.50 Purpose of reports and records. copies of performance reports.
Sections 30.51 through 30.53 set forth (f) Recipients shall immediately no-
the procedures for monitoring and re- tify EPA of developments that have a
porting on the recipient’s financial and significant impact on the award-sup-
program performance and the nec- ported activities. Also, notification
essary standard reporting forms. They shall be given in the case of problems,
also set forth record retention require- delays, or adverse conditions which
ments. materially impair the ability to meet
the objectives of the award. This notifi-
§ 30.51 Monitoring and reporting pro- cation shall include a statement of the
gram performance. action taken or contemplated, and any
(a) Recipients are responsible for assistance needed to resolve the situa-
managing and monitoring each project, tion.
319
§ 30.52 40 CFR Ch. I (7–1–00 Edition)
(g) EPA may make site visits, as (2) SF–272, Report of Federal Cash
needed. Transactions. (i) When funds are ad-
(h) EPA shall comply with clearance vanced to recipients EPA shall require
requirements of 5 CFR part 1320 when each recipient to submit the SF–272
requesting performance data from re- and, when necessary, its continuation
cipients. sheet, SF–272A. EPA shall use this re-
port to monitor cash advanced to re-
§ 30.52 Financial reporting. cipients and to obtain disbursement in-
(a) The following forms or such other formation for each agreement with the
forms as may be approved by OMB are recipients.
(ii) EPA may require forecasts of
authorized for obtaining financial in-
Federal cash requirements in the ‘‘Re-
formation from recipients.
marks’’ section of the report.
(1) SF–269 or SF–269A, Financial Status
(iii) When practical and deemed nec-
Report. (i) EPA shall require recipients essary, EPA may require recipients to
to use the SF–269 or SF–269A to report report in the ‘‘Remarks’’ section the
the status of funds for all nonconstruc- amount of cash advances received in
tion projects or programs. However, excess of three days. Recipients shall
EPA has the option of not requiring provide short narrative explanations of
the SF–269 or SF–269A when the SF–270, actions taken to reduce the excess bal-
Request for Advance or Reimburse- ances.
ment, or SF–272, Report of Federal (iv) Recipients shall be required to
Cash Transactions, is determined to submit not more than the original and
provide adequate information to meet two copies of the SF–272 15 calendar
its needs, except that a final SF–269 or days following the end of each quarter.
SF–269A shall be required at the com- EPA may require a monthly report
pletion of the project when the SF–270 from those recipients receiving ad-
is used only for advances. vances totaling $1 million or more per
(ii) EPA shall prescribe whether the year.
report shall be on a cash or accrual (v) EPA may waive the requirement
basis. If EPA requires accrual informa- for submission of the SF–272 for any
tion and the recipient’s accounting one of the following reasons:
records are not normally kept on the (A) When monthly advances do not
accrual basis, the recipient shall not be exceed $25,000 per recipient, provided
required to convert its accounting sys- that such advances are monitored
tem, but shall develop such accrual in- through other forms contained in this
formation through best estimates section;
based on an analysis of the documenta- (B) If, in EPA’s opinion, the recipi-
tion on hand. ent’s accounting controls are adequate
(iii) EPA shall determine the fre- to minimize excessive Federal ad-
quency of the Financial Status Report vances; or
for each project or program, consid- (C) When the electronic payment
ering the size and complexity of the mechanisms provide adequate data.
particular project or program. How- (b) When EPA needs additional infor-
ever, the report shall not be required mation or more frequent reports, the
more frequently than quarterly or less following shall be observed.
frequently than annually. A final re- (1) When additional information is
port shall be required at the comple- needed to comply with legislative re-
tion of the agreement. quirements, EPA shall issue instruc-
(iv) EPA shall require recipients to tions to require recipients to submit
submit the SF–269 or SF–269A (an origi- such information under the ‘‘Remarks’’
nal and no more than two copies) no section of the reports.
later than 30 days after the end of each (2) When EPA determines that a re-
specified reporting period for quarterly cipient’s accounting system does not
and semi-annual reports, and 90 cal- meet the standards in § 30.21, additional
endar days for annual and final reports. pertinent information to further mon-
Extensions of reporting due dates may itor awards may be obtained upon writ-
be approved by EPA upon request of ten notice to the recipient until such
the recipient. time as the system is brought up to
320
standard. EPA, in obtaining this infor- value. However, in order to avoid dupli-
mation, shall comply with report clear- cate recordkeeping, EPA may make ar-
ance requirements of 5 CFR part 1320. rangements for recipients to retain any
(3) EPA may shade out any line item records that are continuously needed
on any report if not necessary. for joint use.
(4) EPA may accept the identical in- (e) EPA, the Inspector General,
formation from the recipients in ma- Comptroller General of the United
chine readable format or computer States, or any of their duly authorized
printouts or electronic outputs in lieu representatives, have the right of time-
of prescribed formats. ly and unrestricted access to any
(5) EPA may provide computer or books, documents, papers, or other
electronic outputs to recipients when records of recipients that are pertinent
such expedites or contributes to the ac- to the awards, in order to make audits,
curacy of reporting. examinations, excerpts, transcripts and
copies of such documents. This right
§ 30.53 Retention and access require- also includes timely and reasonable ac-
ments for records. cess to a recipient’s personnel for the
(a) This section sets forth require- purpose of interview and discussion re-
ments for record retention and access lated to such documents. The rights of
to records for awards to recipients. access in this paragraph are not lim-
EPA shall not impose any other record ited to the required retention period,
retention or access requirements upon but shall last as long as records are re-
recipients. tained.
(b) Financial records, supporting doc- (f) Unless required by statute, EPA
uments, statistical records, and all shall not place restrictions on recipi-
other records pertinent to an award ents that limit public access to the
shall be retained for a period of three records of recipients that are pertinent
years from the date of submission of to an award, except when it can be
the final expenditure report or, for demonstrated that such records shall
awards that are renewed quarterly or be kept confidential and would have
annually, from the date of the submis- been exempted from disclosure pursu-
sion of the quarterly or annual finan- ant to the Freedom of Information Act
cial report, as authorized by EPA. The (5 U.S.C. 552) if the records had be-
only exceptions are the following. longed to EPA.
(1) If any litigation, claim, or audit is (g) Indirect cost rate proposals, cost
started before the expiration of the 3- allocations plans, etc. Paragraphs (g)(1)
year period, the records shall be re- and (g)(2) of this section apply to the
tained until all litigation, claims or following types of documents, and their
audit findings involving the records supporting records: indirect cost rate
have been resolved and final action computations or proposals, cost alloca-
taken. tion plans, and any similar accounting
(2) Records for real property and computations of the rate at which a
equipment acquired with Federal funds particular group of costs is chargeable
shall be retained for 3 years after final (such as computer usage chargeback
disposition. rates or composite fringe benefit
(3) When records are transferred to or rates).
maintained by EPA, the 3-year reten- (1) If submitted for negotiation. If the
tion requirement is not applicable to recipient submits to EPA or the sub-
the recipient. recipient submits to the recipient the
(4) Indirect cost rate proposals, cost proposal, plan, or other computation to
allocations plans, etc. as specified in form the basis for negotiation of the
paragraph (g) of this section. rate, then the 3-year retention period
(c) Copies of original records may be for its supporting records starts on the
substituted for the original records if date of such submission.
authorized by EPA. (2) If not submitted for negotiation. If
(d) EPA shall request transfer of cer- the recipient is not required to submit
tain records to its custody from recipi- to EPA or the subrecipient is not re-
ents when it determines that the quired to submit to the recipient the
records possess long term retention proposal, plan, or other computation
321
§ 30.54 40 CFR Ch. I (7–1–00 Edition)
for negotiation purposes, then the 3- the reduced or modified portion of the
year retention period for the proposal, grant will not accomplish the purposes
plan, or other computation and its sup- for which the grant was made, it may
porting records starts at the end of the terminate the grant in its entirety
fiscal year (or other accounting period) under either paragraph (a) (1) or (2) of
covered by the proposal, plan, or other this section.
computation. (b) If costs are allowed under an
award, the responsibilities of the re-
§ 30.54 Quality assurance. cipient referred to in § 30.71(a), includ-
If the project officer determines that ing those for property management as
the grantee’s project involves environ- applicable, shall be considered in the
mentally related measurements or data termination of the award, and provi-
generation, the grantee shall develop sion shall be made for continuing re-
and implement quality assurance prac- sponsibilities of the recipient after ter-
tices consisting of policies, procedures, mination, as appropriate.
specifications, standards, and docu-
mentation sufficient to produce data of § 30.62 Enforcement.
quality adequate to meet project objec- (a) Remedies for noncompliance. If a re-
tives and to minimize loss of data due cipient materially fails to comply with
to out-of-control conditions or mal- the terms and conditions of an award,
functions. The quality system must whether stated in a Federal statute,
comply with the requirements of ANSI/ regulation, assurance, application, or
ASQC E4, ‘‘Specifications and Guide- notice of award, EPA may, in addition
lines for Quality Systems for Environ- to imposing any of the special condi-
mental Data Collection and Environ- tions outlined in § 30.14, take one or
mental Technology Programs’’, which more of the following actions, as appro-
may be obtained from the National priate in the circumstances.
Technical Information Service (NTIS), (1) Temporarily withhold cash pay-
5885 Port Royal Road, Springfield, VA ments pending correction of the defi-
22161. ciency by the recipient or more severe
TERMINATION AND ENFORCEMENT enforcement action by EPA.
(2) Disallow (that is, deny both use of
§ 30.60 Purpose of termination and en- funds and any applicable matching
forcement. credit for) all or part of the cost of the
Sections 30.61 and 30.62 set forth uni- activity or action not in compliance.
form suspension, termination and en- (3) Wholly or partly suspend or ter-
forcement procedures. minate the current award.
(4) Withhold further awards for the
§ 30.61 Termination. project or program.
(a) Awards may be terminated in (5) Take other remedies that may be
whole or in part only if paragraph (a) legally available.
(1), (2) or (3) of this section applies. (b) Hearings and appeals. In taking an
(1) By EPA, if a recipient materially enforcement action, EPA shall provide
fails to comply with the terms and con- the recipient an opportunity for hear-
ditions of an award. ing, appeal, or other administrative
(2) By EPA with the consent of the proceeding to which the recipient is en-
recipient, in which case the two parties titled under any statute or regulation
shall agree upon the termination con- applicable to the action involved.
ditions, including the effective date EPA’s Dispute Provisions found at 40
and, in the case of partial termination, CFR part 31, subpart F, Disputes, are
the portion to be terminated. applicable to assistance awarded under
(3) By the recipient upon sending to the provisions of this part.
EPA written notification setting forth (c) Effects of suspension and termi-
the reasons for such termination, the nation. Costs of a recipient resulting
effective date, and, in the case of par- from obligations incurred by the re-
tial termination, the portion to be ter- cipient during a suspension or after
minated. However, if EPA determines termination of an award are not allow-
in the case of partial termination that able unless EPA expressly authorizes
322
them in the notice of suspension or ter- (b) Unless EPA authorizes an exten-
mination or subsequently. Other recipi- sion, a recipient shall liquidate all ob-
ent costs during suspension or after ligations incurred under the award not
termination which are necessary and later than 90 calendar days after the
not reasonably avoidable are allowable funding period or the date of comple-
if paragraphs (c)(1) and (2) of this section as specified in the terms and con-
tion apply. ditions of the award or in agency im-
(1) The costs result from obligations plementing instructions.
which were properly incurred by the re- (c) EPA shall make prompt payments
cipient before the effective date of sus- to a recipient for allowable reimburs-
pension or termination, are not in an- able costs under the award being closed
ticipation of it, and in the case of a ter- out.
mination, are noncancellable. (d) The recipient shall promptly re-
(2) The costs would be allowable if fund any balances of unobligated cash
the award were not suspended or ex- that EPA has advanced or paid and
pired normally at the end of the fund- that is not authorized to be retained by
ing period in which the termination the recipient for use in other projects.
takes effect. OMB Circular A–129 governs
(d) Relationship to debarment and sus- unreturned amounts that become de-
pension. The enforcement remedies linquent debts.
identified in this section, including (e) When authorized by the terms and
suspension and termination, do not conditions of the award, EPA shall
preclude a recipient from being subject make a settlement for any upward or
to debarment and suspension under Ex- downward adjustments to the Federal
ecutive Orders 12549 and 12689 and share of costs after closeout reports are
EPA’s implementing regulations (see received.
§ 30.13). (f) The recipient shall account for
§ 30.63 Disputes. any real and personal property ac-
quired with Federal funds or received
(a) Disagreements should be resolved from the Federal Government in ac-
at the lowest possible level. cordance with §§ 30.31 through 30.37.
(b) If an agreement cannot be (g) In the event a final audit has not
reached, the EPA disputes decision of- been performed prior to the closeout of
ficial will provide a written final deci- an award, EPA shall retain the right to
sion. The EPA disputes decision offi- recover an appropriate amount after
cial is the individual designated by the fully considering the recommendations
award official to resolve disputes con- on disallowed costs resulting from the
cerning assistance agreements. If the final audit.
dispute cannot be resolved the proce-
dures outlined at 40 CFR part 31, sub- § 30.72 Subsequent adjustments and
part F, should be followed. continuing responsibilities.
(a) The closeout of an award does not
Subpart D—After-the-Award affect any of the following.
Requirements (1) The right of EPA to disallow costs
and recover funds on the basis of a
§ 30.70 Purpose. later audit or other review.
Sections 30.71 through 30.73 contain (2) The obligation of the recipient to
closeout procedures and other proce- return any funds due as a result of
dures for subsequent disallowances and later refunds, corrections, or other
adjustments. transactions.
(3) Audit requirements in § 30.26.
§ 30.71 Closeout procedures. (4) Property management require-
(a) Recipients shall submit, within 90 ments in §§ 30.31 through 30.37.
calendar days after the date of comple- (5) Records retention as required in
tion of the award, all financial, per- § 30.53.
formance, and other reports as required (b) After closeout of an award, a rela-
by the terms and conditions of the tionship created under an award may
award. EPA may approve extensions be modified or ended in whole or in
when requested by the recipient. part with the consent of EPA and the
323
§ 30.73 40 CFR Ch. I (7–1–00 Edition)
recipient, provided the responsibilities person employed in the construction, com-

of the recipient referred to in § 30.73(a), pletion, or repair of public work, to give up
including those for property manage- any part of the compensation to which he is
otherwise entitled. The recipient shall report
ment as applicable, are considered and all suspected or reported violations to EPA.
provisions made for continuing respon- 3. Davis-Bacon Act, as amended (40 U.S.C.
sibilities of the recipient, as appro- 276a to a–7)—When required by Federal pro-
priate. gram legislation, all construction contracts
awarded by the recipients and subrecipients
§ 30.73 Collection of amounts due. of more than $2000 shall include a provision
(a) Any funds paid to a recipient in for compliance with the Davis-Bacon Act (40
U.S.C. 276a to a–7) and as supplemented by
excess of the amount to which the re- Department of Labor regulations (29 CFR
cipient is finally determined to be enti- part 5, ‘‘Labor Standards Provisions Applica-
tled under the terms and conditions of ble to Contracts Governing Federally Fi-
the award constitute a debt to the Fed- nanced and Assisted Construction’’). Under
eral Government. If not paid within a this Act, contractors shall be required to pay
reasonable period after the demand for wages to laborers and mechanics at a rate
payment, EPA may reduce the debt by not less than the minimum wages specified
paragraph (a) (1), (2) or (3) of this sec- in a wage determination made by the Sec-
retary of Labor. In addition, contractors
tion. shall be required to pay wages not less than
(1) Making an administrative offset once a week. The recipient shall place a copy
against other requests for reimburse- of the current prevailing wage determination
ments. issued by the Department of Labor in each
(2) Withholding advance payments solicitation and the award of a contract shall
otherwise due to the recipient. be conditioned upon the acceptance of the
(3) Taking other action permitted by wage determination. The recipient shall re-
statute. port all suspected or reported violations to
EPA.
(b) Except as otherwise provided by 4. Contract Work Hours and Safety Stand-
law, EPA shall charge interest on an ards Act (40 U.S.C. 327–333)—Where applica-
overdue debt in accordance with 4 CFR ble, all contracts awarded by recipients in
chapter II, ‘‘Federal Claims Collection excess of $100,000 for construction contracts
Standards.’’ and in excess of $2500 for other contracts
that involve the employment of mechanics
APPENDIX TO PART 30—CONTRACT or laborers shall include a provision for com-
PROVISIONS pliance with sections 102 and 107 of the Con-
tract Work Hours and Safety Standards Act
All contracts awarded by a recipient, in- (40 U.S.C. 327–333), as supplemented by De-
cluding small purchases, shall contain the partment of Labor regulations (29 CFR part
following provisions as applicable: 5). Under section 102 of the Act, each con-
1. Equal Employment Opportunity—All tractor shall be required to compute the
contracts shall contain a provision requiring wages of every mechanic and laborer on the
compliance with Executive Order 11246, basis of a standard work week of 40 hours.
‘‘Equal Employment Opportunity,’’ as Work in excess of the standard work week is
amended by Executive Order 11375, ‘‘Amend- permissible provided that the worker is com-
ing Executive Order 11246 Relating to Equal pensated at a rate of not less than 1/2 times
Employment Opportunity,’’ and as supple- the basic rate of pay for all hours worked in
mented by regulations at 41 CFR part 60, excess of 40 hours in the work week. Section
‘‘Office of Federal Contract Compliance Pro- 107 of the Act is applicable to construction
grams, Equal Employment Opportunity, De- work and provides that no laborer or me-
partment of Labor.’’ chanic shall be required to work in sur-
2. Copeland ‘‘Anti-Kickback’’ Act (18 roundings or under working conditions
U.S.C. 874 and 40 U.S.C. 276c)—All contracts which are unsanitary, hazardous or dan-
and subgrants in excess of $100,000 for con- gerous. These requirements do not apply to
struction or repair awarded by recipients and the purchases of supplies or materials or ar-
subrecipients shall include a provision for ticles ordinarily available on the open mar-
compliance with the Copeland ‘‘Anti-Kick- ket, or contracts for transportation or trans-
back’’ Act (18 U.S.C. 874), as supplemented by mission of intelligence.
Department of Labor regulations (29 CFR 5. Rights to Inventions Made Under a Con-
part 3, ‘‘Contractors and Subcontractors on tract or Agreement—Contracts or agree-
Public Building or Public Work Financed in ments for the performance of experimental,
Whole or in Part by Loans or Grants from developmental, or research work shall pro-
the United States’’). The Act provides that vide for the rights of the Federal Govern-
each contractor or subrecipient shall be pro- ment and the recipient in any resulting in-
hibited from inducing, by any means, any vention in accordance with 37 CFR part 401,
324
‘‘Rights to Inventions Made by Nonprofit Or- 31.3 Definitions.
ganizations and Small Business Firms Under 31.4 Applicability.
Government Grants, Contracts and Coopera- 31.5 Effect on other issuances.
tive Agreements,’’ and any implementing 31.6 Additions and exceptions.
regulations issued by EPA.
6. Clean Air Act (42 U.S.C. 7401 et seq.) and Subpart B—Pre-Award Requirements
the Federal Water Pollution Control Act (33
U.S.C. 1251 et seq.), as amended—Contracts 31.10 Forms for applying for grants.
and subgrants of amounts in excess of 31.11 State plans.
$100,000 shall contain a provision that re- 31.12 Special grant or subgrant conditions
quires the recipient to agree to comply with for ‘‘high-risk’’ grantees.
all applicable standards, orders or regula- 31.13 Principal environmental statutory
tions issued pursuant to the Clean Air Act provisions applicable to EPA assistance
(42 U.S.C. 7401 et seq.) and the Federal Water awards.
Pollution Control Act as amended (33 U.S.C.
1251 et seq.). Violations shall be reported to Subpart C—Post-Award Requirements
the Regional Office of the Environmental FINANCIAL ADMINISTRATION
Protection Agency (EPA).
7. Byrd Anti-Lobbying Amendment (31 31.20 Standards for financial management
U.S.C. 1352)—Contractors who apply or bid systems.
for an award of more than $100,000 shall file 31.21 Payment.
the required certification. Each tier certifies 31.22 Allowable costs.
to the tier above that it will not and has not 31.23 Period of availability of funds.
used Federal appropriated funds to pay any 31.24 Matching or cost sharing.
person or organization for influencing or at- 31.25 Program income.
tempting to influence an officer or employee 31.26 Non-Federal audit.
of any agency, a member of Congress, officer
or employee of Congress, or an employee of a CHANGES, PROPERTY, AND SUBAWARDS
member of Congress in connection with ob- 31.30 Changes.
taining any Federal contract, grant or any 31.31 Real property.
other award covered by 31 U.S.C. 1352. Each 31.32 Equipment.
tier shall also disclose any lobbying with 31.33 Supplies.
non-Federal funds that takes place in con- 31.34 Copyrights.
nection with obtaining any Federal award. 31.35 Subawards to debarred and suspended
Such disclosures are forwarded from tier to parties.
tier up to the recipient. 31.36 Procurement.
8. Debarment and Suspension (Executive 31.37 Subgrants.
Orders 12549 and 12689)—No contract shall be
made to parties listed on the General Serv- REPORTS, RECORDS, RETENTION, AND
ices Administration’s List of Parties Ex- ENFORCEMENT
cluded from Federal Procurement or Non- 31.40 Monitoring and reporting program
procurement Programs in accordance with performance.
Executive Orders 12549 and 12689, ‘‘Debar- 31.41 Financial reporting.
ment and Suspension.’’ This list contains the 31.42 Retention and access requirements for
names of parties debarred, suspended, or oth- records.
erwise excluded by agencies, and contractors 31.43 Enforcement.
declared ineligible under statutory or regu- 31.44 Termination for convenience.
latory authority other than Executive Order 31.45 Quality assurance.
12549. Contractors with awards that exceed
the small purchase threshold shall provide Subpart D—After-the-Grant Requirements
the required certification regarding its ex-
clusion status and that of its principal em- 31.50 Closeout.
ployees. 31.51 Later disallowances and adjustments.
31.52 Collection of amounts due.
PART 31—UNIFORM ADMINISTRA- Subpart E—Entitlement [Reserved]
TIVE REQUIREMENTS FOR GRANTS
AND COOPERATIVE AGREE- Subpart F—Disputes
MENTS TO STATE AND LOCAL 31.70 Disputes.
GOVERNMENTS APPENDIX A TO PART 31—AUDIT REQUIRE-
MENTS FOR STATE AND LOCAL GOVERN-
Subpart A—General MENT RECIPIENTS
Sec. AUTHORITY: 33 U.S.C. 1251 et seq.; 42 U.S.C.

31.1 Purpose and scope of this part. 7401 et seq.; 42 U.S.C. 6901 et seq.; 42 U.S.C. 300f
31.2 Scope of subpart. et seq.; 7 U.S.C. 136 et seq.; 15 U.S.C. 2601 et
325
§ 31.1 40 CFR Ch. I (7–1–00 Edition)
seq.; 42 U.S.C. 9601 et seq.; 20 U.S.C. 4011 et Administrative requirements mean
seq.; 33 U.S.C. 1401 et seq. those matters common to grants in
SOURCE: 53 FR 8075 and 8087, Mar. 11, 1988, general, such as financial management,
unless otherwise noted. kinds and frequency of reports, and re-
tention of records. These are distin-
Subpart A—General guished from programmatic require-
ments, which concern matters that can
§ 31.1 Purpose and scope of this part. be treated only on a program-by-pro-
This part establishes uniform admin- gram or grant-by-grant basis, such as
istrative rules for Federal grants and kinds of activities that can be sup-
cooperative agreements and subawards ported by grants under a particular
to State, local and Indian tribal gov- program.
ernments. Awarding agency means (1) with re-
spect to a grant, the Federal agency,
§ 31.2 Scope of subpart. and (2) with respect to a subgrant, the
This subpart contains general rules party that awarded the subgrant.
pertaining to this part and procedures Cash contributions means the grant-
for control of exceptions from this ee’s cash outlay, including the outlay
part. of money contributed to the grantee or
subgrantee by other public agencies
§ 31.3 Definitions. and institutions, and private organiza-
As used in this part: tions and individuals. When authorized
Accrued expenditures mean the by Federal legislation, Federal funds
charges incurred by the grantee during received from other assistance agree-
a given period requiring the provision ments may be considered as grantee or
of funds for: subgrantee cash contributions.
(1) Goods and other tangible property Contract means (except as used in the
received; definitions for grant and subgrant in
(2) Services performed by employees, this section and except where qualified
contractors, subgrantees, subcontrac- by Federal) a procurement contract
tors, and other payees; and under a grant or subgrant, and means a
(3) Other amounts becoming owed procurement subcontract under a con-
under programs for which no current tract.
services or performance is required, Cost sharing or matching means the
such as annuities, insurance claims, value of the third party in-kind con-
and other benefit payments. tributions and the portion of the costs
Accrued income means the sum of: of a federally assisted project or pro-
(1) Earnings during a given period gram not borne by the Federal Govern-
from services performed by the grantee ment.
and goods and other tangible property Cost-type contract means a contract or
delivered to purchasers, and subcontract under a grant in which the
(2) Amounts becoming owed to the contractor or subcontractor is paid on
grantee for which no current services the basis of the costs it incurs, with or
or performance is required by the without a fee.
grantee. Equipment means tangible, non-
Acquisition cost of an item of pur- expendable, personal property having a
chased equipment means the net in- useful life of more than one year and
voice unit price of the property includ- an acquisition cost of $5,000 or more
ing the cost of modifications, attach- per unit. A grantee may use its own
ments, accessories, or auxiliary appa- definition of equipment provided that
ratus necessary to make the property such definition would at least include
usable for the purpose for which it was all equipment defined above.
acquired. Other charges such as the Expenditure report means: (1) For non-
cost of installation, transportation, construction grants, the SF–269 ‘‘Fi-
taxes, duty or protective in-transit in- nancial Status Report’’ (or other equiv-
surance, shall be included or excluded alent report); (2) for construction
from the unit acquisition cost in ac- grants, the SF–271 ‘‘Outlay Report and
cordance with the grantee’s regular ac- Request for Reimbursement’’ (or other
counting practices. equivalent report).
326
Federally recognized Indian tribal gov- Outlays (expenditures) mean charges

ernment means the governing body or a made to the project or program. They
governmental agency of any Indian may be reported on a cash or accrual
tribe, band, nation, or other organized basis. For reports prepared on a cash
group or community (including any basis, outlays are the sum of actual
Native village as defined in section 3 of cash disbursement for direct charges
the Alaska Native Claims Settlement for goods and services, the amount of
Act, 85 Stat 688) certified by the Sec- indirect expense incurred, the value of
retary of the Interior as eligible for the in-kind contributions applied, and the
special programs and services provided amount of cash advances and payments
by him through the Bureau of Indian made to contractors and subgrantees.
Affairs. For reports prepared on an accrued ex-
Government means a State or local penditure basis, outlays are the sum of
government or a federally recognized actual cash disbursements, the amount
Indian tribal government. of indirect expense incurred, the value
Grant means an award of financial as- of inkind contributions applied, and
sistance, including cooperative agree- the new increase (or decrease) in the
ments, in the form of money, or prop- amounts owed by the grantee for goods
erty in lieu of money, by the Federal and other property received, for serv-
Government to an eligible grantee. The ices performed by employees, contrac-
term does not include technical assist- tors, subgrantees, subcontractors, and
ance which provides services instead of other payees, and other amounts be-
money, or other assistance in the form coming owed under programs for which
of revenue sharing, loans, loan guaran- no current services or performance are
tees, interest subsidies, insurance, or required, such as annuities, insurance
direct appropriations. Also, the term claims, and other benefit payments.
does not include assistance, such as a Percentage of completion method refers
fellowship or other lump sum award, to a system under which payments are
which the grantee is not required to ac- made for construction work according
count for. to the percentage of completion of the
Grantee means the government to work, rather than to the grantee’s cost
which a grant is awarded and which is incurred.
accountable for the use of the funds Prior approval means documentation
provided. The grantee is the entire evidencing consent prior to incurring
legal entity even if only a particular specific cost.
component of the entity is designated Real property means land, including
in the grant award document. land improvements, structures and ap-
Local government means a county, purtenances thereto, excluding mov-
municipality, city, town, township, able machinery and equipment.
local public authority (including any Share, when referring to the awarding
public and Indian housing agency agency’s portion of real property,
under the United States Housing Act of equipment or supplies, means the same
1937) school district, special district, percentage as the awarding agency’s
intrastate district, council of govern- portion of the acquiring party’s total
ments (whether or not incorporated as costs under the grant to which the ac-
a nonprofit corporation under State quisition costs under the grant to
law), any other regional or interstate which the acquisition cost of the prop-
government entity, or any agency or erty was charged. Only costs are to be
instrumentality of a local government. counted—not the value of third-party
Obligations means the amounts of or- in-kind contributions.
ders placed, contracts and subgrants State means any of the several States
awarded, goods and services received, of the United States, the District of
and similar transactions during a given Columbia, the Commonwealth of Puer-
period that will require payment by to Rico, any territory or possession of
the grantee during the same or a future the United States, or any agency or in-
period. strumentality of a State exclusive of
OMB means the U.S. Office of Man- local governments. The term does not
agement and Budget. include any public and Indian housing
327
§ 31.4 40 CFR Ch. I (7–1–00 Edition)
agency under United States Housing Terms of a grant or subgrant mean all
Act of 1937. requirements of the grant or subgrant,
Subgrant means an award of financial whether in statute, regulations, or the
assistance in the form of money, or award document.
property in lieu of money, made under Third party in-kind contributions mean
a grant by a grantee to an eligible sub- property or services which benefit a
grantee. The term includes financial federally assisted project or program
assistance when provided by contrac- and which are contributed by non-Fed-
tual legal agreement, but does not in- eral third parties without charge to the
clude procurement purchases, nor does grantee, or a cost-type contractor
it include any form of assistance which under the grant agreement.
is excluded from the definition of grant Unliquidated obligations for reports
in this part. prepared on a cash basis mean the
Subgrantee means the government or amount of obligations incurred by the
other legal entity to which a subgrant grantee that has not been paid. For re-
is awarded and which is accountable to ports prepared on an accrued expendi-
the grantee for the use of the funds ture basis, they represent the amount
provided. of obligations incurred by the grantee
for which an outlay has not been re-
Supplies means all tangible personal
corded.
property other than equipment as de-
Unobligated balance means the por-
fined in this part.
tion of the funds authorized by the
Suspension means depending on the Federal agency that has not been obli-
context, either (1) temporary with- gated by the grantee and is determined
drawal of the authority to obligate by deducting the cumulative obliga-
grant funds pending corrective action tions from the cumulative funds au-
by the grantee or subgrantee or a deci- thorized.
sion to terminate the grant, or (2) an
action taken by a suspending official in § 31.4 Applicability.
accordance with agency regulations
(a) General. Subparts A–D of this part
implementing E.O. 12549 to imme-
apply to all grants and subgrants to
diately exclude a person from partici-
governments, except where incon-
pating in grant transactions for a pe-
sistent with Federal statutes or with
riod, pending completion of an inves-
regulations authorized in accordance
tigation and such legal or debarment
with the exception provision of § 31.6,
proceedings as may ensue.
or:
Termination means permanent with- (1) Grants and subgrants to State and
drawal of the authority to obligate pre- local institutions of higher education
viously-awarded grant funds before or State and local hospitals.
that authority would otherwise expire. (2) The block grants authorized by
It also means the voluntary relinquish- the Omnibus Budget Reconciliation
ment of that authority by the grantee Act of 1981 (Community Services; Pre-
or subgrantee. Termination does not in- ventive Health and Health Services; Al-
clude: cohol, Drug Abuse, and Mental Health
(1) Withdrawal of funds awarded on Services; Maternal and Child Health
the basis of the grantee’s underesti- Services; Social Services; Low-Income
mate of the unobligated balance in a Home Energy Assistance; States’ Pro-
prior period; gram of Community Development
(2) Withdrawal of the unobligated Block Grants for Small Cities; and Ele-
balance as of the expiration of a grant; mentary and Secondary Education
(3) Refusal to extend a grant or other than programs administered by
award additional funds, to make a com- the Secretary of Education under Title
peting or noncompeting continuation, V, Subtitle D, Chapter 2, Section 583—
renewal, extension, or supplemental the Secretary’s discretionary grant
award; or program) and Titles I–III of the Job
(4) Voiding of a grant upon deter- Training Partnership Act of 1982 and
mination that the award was obtained under the Public Health Services Act
fraudulently, or was otherwise illegal (Section 1921), Alcohol and Drug Abuse
or invalid from inception. Treatment and Rehabilitation Block
328
Grant and Part C of Title V, Mental mental security income benefits to ref-
Health Service for the Homeless Block ugees and entrants and the administra-
Grant). tive costs of providing the assistance
(3) Entitlement grants to carry out and benefits;
the following programs of the Social (9) Grants to local education agencies
Security Act: under 20 U.S.C. 236 through 241–1(a),
(i) Aid to Needy Families with De- and 242 through 244 (portions of the Im-
pendent Children (Title IV–A of the pact Aid program), except for 20 U.S.C.
Act, not including the Work Incentive 238(d)(2)(c) and 240(f) (Entitlement In-
Program (WIN) authorized by section crease for Handicapped Children); and
402(a)19(G); HHS grants for WIN are
(10) Payments under the Veterans
subject to this part);
(ii) Child Support Enforcement and Administration’s State Home Per Diem
Establishment of Paternity (Title IV–D Program (38 U.S.C. 641(a)).
of the Act); (b) Entitlement programs. Entitlement
(iii) Foster Care and Adoption Assist- programs enumerated above in § 31.4(a)
ance (Title IV–E of the Act); (3) through (8) are subject to subpart E.
(iv) Aid to the Aged, Blind, and Dis-
abled (Titles I, X, XIV, and XVI–AABD § 31.5 Effect on other issuances.
of the Act); and All other grants administration pro-
(v) Medical Assistance (Medicaid) visions of codified program regula-
(Title XIX of the Act) not including the tions, program manuals, handbooks
State Medicaid Fraud Control program and other nonregulatory materials
authorized by section 1903(a)(6)(B). which are inconsistent with this part
(4) Entitlement grants under the fol- are superseded, except to the extent
lowing programs of The National they are required by statute, or au-
School Lunch Act: thorized in accordance with the excep-
(i) School Lunch (section 4 of the
tion provision in § 31.6.
Act),
(ii) Commodity Assistance (section 6 § 31.6 Additions and exceptions.
of the Act),
(iii) Special Meal Assistance (section (a) For classes of grants and grantees
11 of the Act), subject to this part, Federal agencies
(iv) Summer Food Service for Chil- may not impose additional administra-
dren (section 13 of the Act), and tive requirements except in codified
(v) Child Care Food Program (section regulations published in the FEDERAL
17 of the Act). REGISTER.
(5) Entitlement grants under the fol- (b) Exceptions for classes of grants or
lowing programs of The Child Nutri- grantees may be authorized only by
tion Act of 1966: OMB.
(i) Special Milk (section 3 of the Act), (c) Exceptions on a case-by-case basis
and and for subgrantees may be authorized
(ii) School Breakfast (section 4 of the by the affected Federal agencies.
Act). (1) In the Environmental Protection
(6) Entitlement grants for State Ad- Agency, the Director, Grants Adminis-
ministrative expenses under The Food
tration Division, is authorized to grant
Stamp Act of 1977 (section 16 of the
the exceptions.
Act).
(7) A grant for an experimental, pilot, (2) [Reserved]
or demonstration project that is also (d) The EPA Director is also author-
supported by a grant listed in para- ized to approve exceptions, on a class
graph (a)(3) of this section; or an individual case basis, to EPA pro-
(8) Grant funds awarded under sub- gram—specific assistance regulations
section 412(e) of the Immigration and other than those which implement
Nationality Act (8 U.S.C. 1522(e)) and statutory and executive order require-
subsection 501(a) of the Refugee Edu- ments.
cation Assistance Act of 1980 (Pub. L.
[53 FR 8068 and 8087, Mar. 11, 1988, and
96–422, 94 Stat. 1809), for cash assist- amended at 53 FR 8075, Mar. 11, 1988]
ance, medical assistance, and supple-
329
§ 31.10 40 CFR Ch. I (7–1–00 Edition)
Subpart B—Pre-Award § 31.11 State plans.

Requirements (a) Scope. The statutes for some pro-
grams require States to submit plans
§ 31.10 Forms for applying for grants. before receiving grants. Under regula-
(a) Scope. (1) This section prescribes tions implementing Executive Order
forms and instructions to be used by 12372, ‘‘Intergovernmental Review of
governmental organizations (except Federal Programs,’’ States are allowed
hospitals and institutions of higher to simplify, consolidate and substitute
plans. This section contains additional
education operated by a government)
provisions for plans that are subject to
in applying for grants. This section is regulations implementing the Execu-
not applicable, however, to formula tive Order.
grant programs which do not require (b) Requirements. A State need meet
applicants to apply for funds on a only Federal administrative or pro-
project basis. grammatic requirements for a plan
(2) This section applies only to appli- that are in statutes or codified regula-
cations to Federal agencies for grants, tions.
and is not required to be applied by (c) Assurances. In each plan the State
grantees in dealing with applicants for will include an assurance that the
subgrants. However, grantees are en- State shall comply with all applicable
couraged to avoid more detailed or bur- Federal statutes and regulations in ef-
densome application requirements for fect with respect to the periods for
subgrants. which it receives grant funding. For
(b) Authorized forms and instructions this assurance and other assurances re-
for governmental organizations. (1) In ap- quired in the plan, the State may:
plying for grants, applicants shall only (1) Cite by number the statutory or
regulatory provisions requiring the as-
use standard application forms or those
surances and affirm that it gives the
prescribed by the granting agency with
assurances required by those provi-
the approval of OMB under the Paper- sions,
work Reduction Act of 1980. (2) Repeat the assurance language in
(2) Applicants are not required to the statutes or regulations, or
submit more than the original and two (3) Develop its own language to the
copies of preapplications or applica- extent permitted by law.
tions. (d) Amendments. A State will amend a
(3) Applicants must follow all appli- plan whenever necessary to reflect: (1)
cable instructions that bear OMB New or revised Federal statutes or reg-
clearance numbers. Federal agencies ulations or (2) a material change in any
may specify and describe the programs, State law, organization, policy, or
functions, or activities that will be State agency operation. The State will
used to plan, budget, and evaluate the obtain approval for the amendment and
work under a grant. Other supple- its effective date but need submit for
mentary instructions may be issued approval only the amended portions of
only with the approval of OMB to the the plan.
extent required under the Paperwork § 31.12 Special grant or subgrant con-
Reduction Act of 1980. For any stand- ditions for ‘‘high-risk’’ grantees.
ard form, except the SF–424 facesheet,
(a) A grantee or subgrantee may be
Federal agencies may shade out or in-
considered ‘‘high risk’’ if an awarding
struct the applicant to disregard any
agency determines that a grantee or
line item that is not needed. subgrantee:
(4) When a grantee applies for addi- (1) Has a history of unsatisfactory
tional funding (such as a continuation performance, or
or supplemental award) or amends a (2) Is not financially stable, or
previously submitted application, only (3) Has a management system which
the affected pages need be submitted. does not meet the management stand-
Previously submitted pages with infor- ards set forth in this part, or
mation that is still current need not be (4) Has not conformed to terms and
resubmitted. conditions of previous awards, or
330
(5) Is otherwise not responsible; and Subpart C—Post-Award

if the awarding agency determines that Requirements
an award will be made, special condi-
tions and/or restrictions shall cor- FINANCIAL ADMINISTRATION
respond to the high risk condition and
shall be included in the award. § 31.20 Standards for financial man-
(b) Special conditions or restrictions agement systems.
may include: (a) A State must expand and account
(1) Payment on a reimbursement for grant funds in accordance with
basis; State laws and procedures for expend-
(2) Withholding authority to proceed ing and accounting for its own funds.
to the next phase until receipt of evi- Fiscal control and accounting proce-
dence of acceptable performance within dures of the State, as well as its sub-
a given funding period; grantees and cost-type contractors,
(3) Requiring additional, more de- must be sufficient to—
tailed financial reports; (1) Permit preparation of reports re-
(4) Additional project monitoring; quired by this part and the statutes au-
(5) Requiring the grantee or sub- thorizing the grant, and
grantee to obtain technical or manage- (2) Permit the tracing of funds to a
ment assistance; or level of expenditures adequate to es-
(6) Establishing additional prior ap- tablish that such funds have not been
provals. used in violation of the restrictions
(c) If an awarding agency decides to and prohibitions of applicable statutes.
impose such conditions, the awarding (b) The financial management sys-
official will notify the grantee or sub- tems of other grantees and subgrantees
grantee as early as possible, in writing, must meet the following standards:
of: (1) Financial reporting. Accurate, cur-
(1) The nature of the special condi- rent, and complete disclosure of the fi-
tions/restrictions; nancial results of financially assisted
(2) The reason(s) for imposing them; activities must be made in accordance
(3) The corrective actions which must with the financial reporting require-
be taken before they will be removed ments of the grant or subgrant.
and the time allowed for completing (2) Accounting records. Grantees and
the corrective actions and subgrantees must maintain records
(4) The method of requesting recon- which adequately identify the source
sideration of the conditions/restric- and application of funds provided for fi-
tions imposed. nancially-assisted activities. These
records must contain information per-
§ 31.13 Principal environmental statu- taining to grant or subgrant awards
tory provisions applicable to EPA and authorizations, obligations, unobli-
assistance awards. gated balances, assets, liabilities, out-
Grantees shall comply with all appli- lays or expenditures, and income.
cable Federal laws including: (3) Internal control. Effective control
(a) Section 306 of the Clean Air Act, and accountability must be maintained
(42 U.S.C. 7606). for all grant and subgrant cash, real
(b) Section 508 of the Federal Water and personal property, and other as-
Pollution Control Act, as amended, (33 sets. Grantees and subgrantees must
U.S.C. 1368). adequately safeguard all such property
(c) Section 1424(e) of the Safe Drink- and must assure that it is used solely
ing Water Act, (42 U.S.C. 300h–3(e)). for authorized purposes.
(4) Budget control. Actual expendi-
[53 FR 8075, Mar. 11, 1988]
tures or outlays must be compared
with budgeted amounts for each grant
or subgrant. Financial information
331
§ 31.21 40 CFR Ch. I (7–1–00 Edition)
must be related to performance or pro- (b) Basic standard. Methods and pro-
ductivity data, including the develop- cedures for payment shall minimize
ment of unit cost information when- the time elapsing between the transfer
ever appropriate or specifically re- of funds and disbursement by the
quired in the grant or subgrant agree- grantee or subgrantee, in accordance
ment. If unit cost data are required, es- with Treasury regulations at 31 CFR
timates based on available documenta- part 205.
tion will be accepted whenever pos- (c) Advances. Grantees and sub-
sible. grantees shall be paid in advance, pro-
(5) Allowable cost. Applicable OMB vided they maintain or demonstrate
cost principles, agency program regula- the willingness and ability to maintain
tions, and the terms of grant and procedures to minimize the time elaps-
subgrant agreements will be followed ing between the transfer of the funds
in determining the reasonableness, al- and their disbursement by the grantee
lowability, and allocability of costs. or subgrantee.
(6) Source documentation. Accounting (d) Reimbursement. Reimbursement
records must be supported by such shall be the preferred method when the
source documentation as cancelled requirements in paragraph (c) of this
checks, paid bills, payrolls, time and section are not met. Grantees and sub-
attendance records, contract and grantees may also be paid by reim-
subgrant award documents, etc. bursement for any construction grant.
(7) Cash management. Procedures for Except as otherwise specified in regula-
minimizing the time elapsing between tion, Federal agencies shall not use the
the transfer of funds from the U.S. percentage of completion method to
Treasury and disbursement by grantees pay construction grants. The grantee
and subgrantees must be followed or subgrantee may use that method to
whenever advance payment procedures pay its construction contractor, and if
are used. Grantees must establish rea- it does, the awarding agency’s pay-
sonable procedures to ensure the re- ments to the grantee or subgrantee
ceipt of reports on subgrantees’ cash will be based on the grantee’s or sub-
balances and cash disbursements in grantee’s actual rate of disbursement.
sufficient time to enable them to pre- (e) Working capital advances. If a
pare complete and accurate cash trans- grantee cannot meet the criteria for
actions reports to the awarding agen- advance payments described in para-
cy. When advances are made by letter- graph (c) of this section, and the Fed-
of-credit or electronic transfer of funds eral agency has determined that reim-
methods, the grantee must make bursement is not feasible because the
drawdowns as close as possible to the grantee lacks sufficient working cap-
time of making disbursements. Grant- ital, the awarding agency may provide
ees must monitor cash drawdowns by cash or a working capital advance
their subgrantees to assure that they basis. Under this procedure the award-
conform substantially to the same ing agency shall advance cash to the
standards of timing and amount as grantee to cover its estimated dis-
apply to advances to the grantees. bursement needs for an initial period
(c) An awarding agency may review generally geared to the grantee’s dis-
the adequacy of the financial manage- bursing cycle. Thereafter, the awarding
ment system of any applicant for fi- agency shall reimburse the grantee for
nancial assistance as part of a its actual cash disbursements. The
preaward review or at any time subse- working capital advance method of
quent to award. payment shall not be used by grantees
or subgrantees if the reason for using
§ 31.21 Payment. such method is the unwillingness or in-
(a) Scope. This section prescribes the ability of the grantee to provide timely
basic standard and the methods under advances to the subgrantee to meet the
which a Federal agency will make pay- subgrantee’s actual cash disburse-
ments to grantees, and grantees will ments.
make payments to subgrantees and (f) Effect of program income, refunds,
contractors. and audit recoveries on payment. (1)
332
Grantees and subgrantees shall dis- et seq.) and the Indian Self-Determina-
burse repayments to and interest tion Act (23 U.S.C. 450), grantees and
earned on a revolving fund before re- subgrantees shall promptly, but at
questing additional cash payments for least quarterly, remit interest earned
the same activity. on advances to the Federal agency. The
(2) Except as provided in paragraph grantee or subgrantee may keep inter-
(f)(1) of this section, grantees and sub- est amounts up to $100 per year for ad-
grantees shall disburse program in- ministrative expenses.
come, rebates, refunds, contract settle-
ments, audit recoveries and interest § 31.22 Allowable costs.
earned on such funds before requesting (a) Limitation on use of funds. Grant
additional cash payments. funds may be used only for:
(g) Withholding payments. (1) Unless (1) The allowable costs of the grant-
otherwise required by Federal statute, ees, subgrantees and cost-type contrac-
awarding agencies shall not withhold tors, including allowable costs in the
payments for proper charges incurred form of payments to fixed-price con-
by grantees or subgrantees unless— tractors; and
(i) The grantee or subgrantee has (2) Reasonable fees or profit to cost-
failed to comply with grant award con- type contractors but not any fee or
ditions or profit (or other increment above allow-
(ii) The grantee or subgrantee is in- able costs) to the grantee or sub-
debted to the United States. grantee.
(2) Cash withheld for failure to com- (b) Applicable cost principles. For each
ply with grant award condition, but kind of organization, there is a set of
without suspension of the grant, shall Federal principles for determining al-
be released to the grantee upon subse- lowable costs. Allowable costs will be
quent compliance. When a grant is sus- determined in accordance with the cost
pended, payment adjustments will be principles applicable to the organiza-
made in accordance with § 31.43(c). tion incurring the costs. The following
(3) A Federal agency shall not make chart lists the kinds of organizations
payment to grantees for amounts that and the applicable cost principles.
are withheld by grantees or sub-
grantees from payment to contractors For the costs of a— Use the principles in—
to assure satisfactory completion of
State, local or Indian tribal OMB Circular A–87.
work. Payments shall be made by the government.
Federal agency when the grantees or Private nonprofit organization OBM Circular A–122.
subgrantees actually disburse the with- other than an (1) institution
held funds to the contractors or to es- of higher education, (2)
hospital, or (3) organization
crow accounts established to assure named in OMB Circular A–
satisfactory completion of work. 122 as not subject to that
(h) Cash depositories. (1) Consistent circular.
with the national goal of expanding the Educational institutions. ......... OMB Circular A–21.
For-profit organization other 48 CFR part 31, Contract
opportunities for minority business en- than a hospital and an or- Cost Principles and Proce-
terprises, grantees and subgrantees are ganization named in OBM dures, or uniform cost ac-
encouraged to use minority banks (a Circular A–122 as not sub- counting standards that
bank which is owned at least 50 percent ject to that circular. comply with cost principles
acceptable to the Federal
by minority group members). A list of agency.
minority owned banks can be obtained
from the Minority Business Develop-
ment Agency, Department of Com- § 31.23 Period of availability of funds.
merce, Washington, DC 20230. (a) General. Where a funding period is
(2) A grantee or subgrantee shall specified, a grantee may charge to the
maintain a separate bank account only award only costs resulting from obliga-
when required by Federal-State agree- tions of the funding period unless car-
ment. ryover of unobligated balances is per-
(i) Interest earned on advances. Except mitted, in which case the carryover
for interest earned on advances of balances may be charged for costs re-
funds exempt under the Intergovern- sulting from obligations of the subse-
mental Cooperation Act (31 U.S.C. 6501 quent funding period.
333
§ 31.24 40 CFR Ch. I (7–1–00 Edition)
(b) Liquidation of obligations. A grant- wards satisfying a cost sharing or

ee must liquidate all obligations in- matching requirement unless they are
curred under the award not later than expressly permitted in the terms of the
90 days after the end of the funding pe- assistance agreement. (This use of gen-
riod (or as specified in a program regu- eral program income is described in
lation) to coincide with the submission § 31.25(g).)
of the annual Financial Status Report (5) Services or property financed by in-
(SF–269). The Federal agency may ex- come earned by contractors. Contractors
tend this deadline at the request of the under a grant may earn income from
grantee. the activities carried out under the
contract in addition to the amounts
§ 31.24 Matching or cost sharing. earned from the party awarding the
(a) Basic rule: Costs and contributions contract. No costs of services or prop-
acceptable. With the qualifications and erty supported by this income may
exceptions listed in paragraph (b) of count toward satisfying a cost sharing
this section, a matching or cost shar- or matching requirement unless other
ing requirement may be satisfied by ei- provisions of the grant agreement ex-
ther or both of the following: pressly permit this kind of income to
(1) Allowable costs incurred by the be used to meet the requirement.
grantee, subgrantee or a cost-type con- (6) Records. Costs and third party in-
tractor under the assistance agree- kind contributions counting towards
ment. This includes allowable costs satisfying a cost sharing or matching
borne by non-Federal grants or by requirement must be verifiable from
other cash donations from non-Federal the records of grantees and subgrantee
third parties. or cost-type contractors. These records
(2) The value of third party in-kind must show how the value placed on
contributions applicable to the period third party in-kind contributions was
to which the cost sharing or matching derived. To the extent feasible, volun-
requirements applies. teer services will be supported by the
(b) Qualifications and exceptions—(1) same methods that the organization
Costs borne by other Federal grant agree-
uses to support the allocability of reg-
ments. Except as provided by Federal
ular personnel costs.
statute, a cost sharing or matching re-
(7) Special standards for third party in-
quirement may not be met by costs
borne by another Federal grant. This kind contributions. (i) Third party in-
prohibition does not apply to income kind contributions count towards sat-
earned by a grantee or subgrantee from isfying a cost sharing or matching re-
a contract awarded under another Fed- quirement only where, if the party re-
eral grant. ceiving the contributions were to pay
(2) General revenue sharing. For the for them, the payments would be allow-
purpose of this section, general revenue able costs.
sharing funds distributed under 31 (ii) Some third party in-kind con-
U.S.C. 6702 are not considered Federal tributions are goods and services that,
grant funds. if the grantee, subgrantee, or con-
(3) Cost or contributions counted to- tractor receiving the contribution had
wards other Federal costs-sharing require- to pay for them, the payments would
ments. Neither costs nor the values of have been an indirect costs. Costs shar-
third party in-kind contributions may ing or matching credit for such con-
count towards satisfying a cost sharing tributions shall be given only if the
or matching requirement of a grant grantee, subgrantee, or contractor has
agreement if they have been or will be established, along with its regular indi-
counted towards satisfying a cost shar- rect cost rate, a special rate for allo-
ing or matching requirement of an- cating to individual projects or pro-
other Federal grant agreement, a Fed- grams the value of the contributions.
eral procurement contract, or any (iii) A third party in-kind contribu-
other award of Federal funds. tion to a fixed-price contract may
(4) Costs financed by program income. count towards satisfying a cost sharing
Costs financed by program income, as or matching requirement only if it re-
defined in § 31.25, shall not count to- sults in:
334
(A) An increase in the services or (1) Awards for capital expenditures. If

property provided under the contract the purpose of the grant or subgrant is
(without additional cost to the grantee to assist the grantee or subgrantee in
or subgrantee) or the acquisition of property, the market
(B) A cost savings to the grantee or value of that property at the time of
subgrantee. donation may be counted as cost shar-
(iv) The values placed on third party ing or matching,
in-kind contributions for cost sharing (2) Other awards. If assisting in the
or matching purposes will conform to acquisition of property is not the pur-
the rules in the succeeding sections of pose of the grant or subgrant, para-
this part. If a third party in-kind con- graphs (e)(2) (i) and (ii) of this section
tribution is a type not treated in those apply:
sections, the value placed upon it shall (i) If approval is obtained from the
be fair and reasonable. awarding agency, the market value at
(c) Valuation of donated services—(1) the time of donation of the donated
Volunteer services. Unpaid services pro- equipment or buildings and the fair
vided to a grantee or subgrantee by in- rental rate of the donated land may be
dividuals will be valued at rates con- counted as cost sharing or matching.
sistent with those ordinarily paid for In the case of a subgrant, the terms of
similar work in the grantee’s or sub- the grant agreement may require that
grantee’s organization. If the grantee the approval be obtained from the Fed-
or subgrantee does not have employees eral agency as well as the grantee. In
performing similar work, the rates will all cases, the approval may be given
be consistent with those ordinarily only if a purchase of the equipment or
paid by other employers for similar rental of the land would be approved as
work in the same labor market. In ei- an allowable direct cost. If any part of
ther case, a reasonable amount for the donated property was acquired
fringe benefits may be included in the with Federal funds, only the non-fed-
valuation. eral share of the property may be
(2) Employees of other organizations. counted as cost-sharing or matching.
When an employer other than a grant- (ii) If approval is not obtained under
ee, subgrantee, or cost-type contractor paragraph (e)(2)(i) of this section, no
furnishes free of charge the services of amount may be counted for donated
an employee in the employee’s normal land, and only depreciation or use al-
line of work, the services will be valued lowances may be counted for donated
at the employee’s regular rate of pay equipment and buildings. The deprecia-
exclusive of the employee’s fringe ben- tion or use allowances for this property
efits and overhead costs. If the services are not treated as third party in-kind
are in a different line of work, para- contributions. Instead, they are treat-
graph (c)(1) of this section applies. ed as costs incurred by the grantee or
(d) Valuation of third party donated subgrantee. They are computed and al-
supplies and loaned equipment or space. located (usually as indirect costs) in
(1) If a third party donates supplies, accordance with the cost principles
the contribution will be valued at the specified in § 31.22, in the same way as
market value of the supplies at the depreciation or use allowances for pur-
time of donation. chased equipment and buildings. The
(2) If a third party donates the use of amount of depreciation or use allow-
equipment or space in a building but ances for donated equipment and build-
retains title, the contribution will be ings is based on the property’s market
valued at the fair rental rate of the value at the time it was donated.
equipment or space. (f) Valuation of grantee or subgrantee
(e) Valuation of third party donated donated real property for construction/ac-
equipment, buildings, and land. If a third quisition. If a grantee or subgrantee do-
party donates equipment, buildings, or nates real property for a construction
land, and title passes to a grantee or or facilities acquisition project, the
subgrantee, the treatment of the do- current market value of that property
nated property will depend upon the may be counted as cost sharing or
purpose of the grant or subgrant, as matching. If any part of the donated
follows: property was acquired with Federal
335
§ 31.25 40 CFR Ch. I (7–1–00 Edition)
funds, only the non-federal share of the (e) Royalties. Income from royalties
property may be counted as cost shar- and license fees for copyrighted mate-
ing or matching. rial, patents, and inventions developed
(g) Appraisal of real property. In some by a grantee or subgrantee is program
cases under paragraphs (d), (e) and (f) income only if the revenues are specifi-
of this section, it will be necessary to cally identified in the grant agreement
establish the market value of land or a or Federal agency regulations as pro-
building or the fair rental rate of land gram income. (See § 31.34.)
or of space in a building. In these cases, (f) Property. Proceeds from the sale of
the Federal agency may require the real property or equipment will be han-
market value or fair rental value be set dled in accordance with the require-
by an independent appraiser, and that ments of §§ 31.31 and 31.32.
the value or rate be certified by the (g) Use of program income. Program
grantee. This requirement will also be income shall be deducted from outlays
imposed by the grantee on subgrantees. which may be both Federal and non-
Federal as described below, unless the
§ 31.25 Program income. Federal agency regulations or the
grant agreement specify another alter-
(a) General. Grantees are encouraged
native (or a combination of the alter-
to earn income to defray program
natives). In specifying alternatives, the
costs. Program income includes income
Federal agency may distinguish be-
from fees for services performed, from
tween income earned by the grantee
the use or rental of real or personal and income earned by subgrantees and
property acquired with grant funds, between the sources, kinds, or amounts
from the sale of commodities or items of income. When Federal agencies au-
fabricated under a grant agreement, thorize the alternatives in paragraphs
and from payments of principal and in- (g) (2) and (3) of this section, program
terest on loans made with grant funds. income in excess of any limits stipu-
Except as otherwise provided in regula- lated shall also be deducted from out-
tions of the Federal agency, program lays.
income does not include interest on (1) Deduction. Ordinarily program in-
grant funds, rebates, credits, discounts, come shall be deducted from total al-
refunds, etc. and interest earned on lowable costs to determine the net al-
any of them. lowable costs. Program income shall be
(b) Definition of program income. Pro- used for current costs unless the Fed-
gram income means gross income re- eral agency authorizes otherwise. Pro-
ceived by the grantee or subgrantee di- gram income which the grantee did not
rectly generated by a grant supported anticipate at the time of the award
activity, or earned only as a result of shall be used to reduce the Federal
the grant agreement during the grant agency and grantee contributions rath-
period. ‘‘During the grant period’’ is er than to increase the funds com-
the time between the effective date of mitted to the project.
the award and the ending date of the (2) Addition. When authorized, pro-
award reflected in the final financial gram income may be added to the
report. funds committed to the grant agree-
(c) Cost of generating program income. ment by the Federal agency and the
If authorized by Federal regulations or grantee. The program income shall be
the grant agreement, costs incident to used for the purposes and under the
the generation of program income may conditions of the grant agreement.
be deducted from gross income to de- (3) Cost sharing or matching. When au-
termine program income. thorized, program income may be used
(d) Governmental revenues. Taxes, spe- to meet the cost sharing or matching
cial assessments, levies, fines, and requirement of the grant agreement.
other such revenues raised by a grantee The amount of the Federal grant award
or subgrantee are not program income remains the same.
unless the revenues are specifically (h) Income after the award period.
identified in the grant agreement or There are no Federal requirements gov-
Federal agency regulations as program erning the disposition of program in-
income. come earned after the end of the award
336
period (i.e., until the ending date of the after receipt of the audit report in in-
final financial report, see paragraph (a) stance of noncompliance with Federal
of this section), unless the terms of the laws and regulations;
agreement or the Federal agency regu- (4) Consider whether subgrantee au-
lations provide otherwise. dits necessitate adjustment of the
grantee’s own records; and
§ 31.26 Non-Federal audit. (5) Require each subgrantee to permit
(a) Basic rule. Grantees and sub- independent auditors to have access to
grantees are responsible for obtaining the records and financial statements.
audits in accordance with the Single (c) Auditor selection. In arranging for
Audit Act Amendments of 1996 (31 audit services, § 31.36 shall be followed.
U.S.C. 7501–7507) and revised OMB Cir- [53 FR 8075, 8087, Mar. 11, 1988, as amended at
cular A–133, ‘‘Audits of States, Local 62 FR 45939, 45944, Aug. 29, 1997]
Governments, and Non-Profit Organi-
zations.’’ The audits shall be made by CHANGES, PROPERTY, AND SUBAWARDS
an independent auditor in accordance
with generally accepted government § 31.30 Changes.
auditing standards covering financial (a) General. Grantees and subgrantees
audits. are permitted to rebudget within the
(b) Subgrantees. State or local govern- approved direct cost budget to meet
ments, as those terms are defined for unanticipated requirements and may
purposes of the Single Audit Act make limited program changes to the
Amendments of 1996, that provide Fed- approved project. However, unless
eral awards to a subgrantee, which ex- waived by the awarding agency, certain
pends $300,000 or more (or other types of post-award changes in budgets
amount as specified by OMB) in Fed- and projects shall require the prior
eral awards in a fiscal year, shall: written approval of the awarding agen-
(1) Determine whether State or local cy.
subgrantees have met the audit re- (b) Relation to cost principles. The ap-
quirements of the Act and whether sub- plicable cost principles (see § 31.22) con-
grantees covered by OMB Circular A– tain requirements for prior approval of
110, ‘‘Uniform Administrative Require- certain types of costs. Except where
ments for Grants and Agreements with waived, those requirements apply to all
Institutions of Higher Education, Hos- grants and subgrants even if para-
pitals, and Other Non-Profit Organiza- graphs (c) through (f) of this section do
tions,’’ have met the audit require- not.
ments of the Act. Commercial contrac- (c) Budget changes. (1) Nonconstruction
tors (private for-profit and private and projects. Except as stated in other regu-
governmental organizations) providing lations or an award document, grantees
goods and services to State and local or subgrantees shall obtain the prior
governments are not required to have a approval of the awarding agency when-
single audit performed. State and local ever any of the following changes is an-
governments should use their own pro- ticipated under a nonconstruction
cedures to ensure that the contractor award:
has complied with laws and regulations (i) Any revision which would result
affecting the expenditure of Federal in the need for additional funding.
funds; (ii) Unless waived by the awarding
(2) Determine whether the sub- agency, cumulative transfers among di-
grantee spent Federal assistance funds rect cost categories, or, if applicable,
provided in accordance with applicable among separately budgeted programs,
laws and regulations. This may be ac- projects, functions, or activities which
complished by reviewing an audit of exceed or are expected to exceed ten
the subgrantee made in accordance percent of the current total approved
with the Act, Circular A–110, or budget, whenever the awarding agen-
through other means (e.g., program recy’s share exceeds $100,000.
views) if the subgrantee has not had (iii) Transfer of funds allotted for
such an audit; training allowances (i.e., from direct
(3) Ensure that appropriate correc- payments to trainees to other expense
tive action is taken within six months categories).
337
§ 31.31 40 CFR Ch. I (7–1–00 Edition)
(2) Construction projects. Grantees and ciples (see § 31.22) may be made by let-
subgrantees shall obtain prior written ter.
approval for any budget revision which (3) A request by a subgrantee for
would result in the need for additional prior approval will be addressed in
funds. writing to the grantee. The grantee
(3) Combined construction and non- will promptly review such request and
construction projects. When a grant or shall approve or disapprove the request
subgrant provides funding for both con- in writing. A grantee will not approve
struction and nonconstruction activi- any budget or project revision which is
ties, the grantee or subgrantee must inconsistent with the purpose or terms
obtain prior written approval from the and conditions of the Federal grant to
awarding agency before making any the grantee. If the revision, requested
fund or budget transfer from non- by the subgrantee would result in a
construction to construction or vice change to the grantee’s approved
versa. project which requires Federal prior
(d) Programmatic changes. Grantees or approval, the grantee will obtain the
subgrantees must obtain the prior ap- Federal agency’s approval before ap-
proval of the awarding agency when- proving the subgrantee’s request.
ever any of the following actions is an- § 31.31 Real property.
ticipated:
(1) Any revision of the scope or objec- (a) Title. Subject to the obligations
tives of the project (regardless of and conditions set forth in this section,
whether there is an associated budget title to real property acquired under a
revision requiring prior approval). grant or subgrant will vest upon acqui-
sition in the grantee or subgrantee re-
(2) Need to extend the period of avail-
spectively.
ability of funds.
(b) Use. Except as otherwise provided
(3) Changes in key persons in cases by Federal statutes, real property will
where specified in an application or a be used for the originally authorized
grant award. In research projects, a purposes as long as needed for that pur-
change in the project director or prin- poses, and the grantee or subgrantee
cipal investigator shall always require shall not dispose of or encumber its
approval unless waived by the award- title or other interests.
ing agency. (c) Disposition. When real property is
(4) Under nonconstruction projects, no longer needed for the originally au-
contracting out, subgranting (if authorized purpose, the grantee or sub-
thorized by law) or otherwise obtaining grantee will request disposition in-
the services of a third party to perform structions from the awarding agency.
activities which are central to the pur- The instructions will provide for one of
poses of the award. This approval re- the following alternatives:
quirement is in addition to the ap- (1) Retention of title. Retain title after
proval requirements of § 31.36 but does compensating the awarding agency.
not apply to the procurement of equip- The amount paid to the awarding agen-
ment, supplies, and general support cy will be computed by applying the
services. awarding agency’s percentage of par-
(e) Additional prior approval require- ticipation in the cost of the original
ments. The awarding agency may not purchase to the fair market value of
require prior approval for any budget the property. However, in those situa-
revision which is not described in para- tions where a grantee or subgrantee is
graph (c) of this section. disposing of real property acquired
(f) Requesting prior approval. (1) A re- with grant funds and acquiring replace-
quest for prior approval of any budget ment real property under the same pro-
revision will be in the same budget for- gram, the net proceeds from the dis-
mal the grantee used in its application position may be used as an offset to the
and shall be accompanied by a nar- cost of the replacement property.
rative justification for the proposed re- (2) Sale of property. Sell the property
vision. and compensate the awarding agency.
(2) A request for a prior approval The amount due to the awarding agen-
under the applicable Federal cost prin- cy will be calculated by applying the
338
awarding agency’s percentage of par- by the awarding agency. User fees

ticipation in the cost of the original should be considered if appropriate.
purchase to the proceeds of the sale (3) Notwithstanding the encourage-
after deduction of any actual and rea- ment in § 31.25(a) to earn program in-
sonable selling and fixing-up expenses. come, the grantee or subgrantee must
If the grant is still active, the net pro- not use equipment acquired with grant
ceeds from sale may be offset against funds to provide services for a fee to
the original cost of the property. When compete unfairly with private compa-
a grantee or subgrantee is directed to nies that provide equivalent services,
sell property, sales procedures shall be unless specifically permitted or con-
followed that provide for competition templated by Federal statute.
to the extent practicable and result in (4) When acquiring replacement
the highest possible return. equipment, the grantee or subgrantee
(3) Transfer of title. Transfer title to may use the equipment to be replaced
the awarding agency or to a third- as a trade-in or sell the property and
party designated/approved by the use the proceeds to offset the cost of
awarding agency. The grantee or sub- the replacement property, subject to
grantee shall be paid an amount cal- the approval of the awarding agency.
culated by applying the grantee or sub-
(d) Management requirements. Proce-
grantee’s percentage of participation
dures for managing equipment (includ-
in the purchase of the real property to
ing replacement equipment), whether
the current fair market value of the
acquired in whole or in part with grant
property.
funds, until disposition takes place
§ 31.32 Equipment. will, as a minimum, meet the following
requirements:
(a) Title. Subject to the obligations
(1) Property records must be main-
and conditions set forth in this section,
tained that include a description of the
title to equipment acquired under a
property, a serial number or other
grant or subgrant will vest upon acqui-
identification number, the source of
sition in the grantee or subgrantee re-
property, who holds title, the acquisi-
spectively.
tion date, and cost of the property, per-
(b) States. A State will use, manage,
centage of Federal participation in the
and dispose of equipment acquired
cost of the property, the location, use
under a grant by the State in accord-
and condition of the property, and any
ance with State laws and procedures.
ultimate disposition data including the
Other grantees and subgrantees will
date of disposal and sale price of the
follow paragraphs (c) through (e) of
property.
this section.
(c) Use. (1) Equipment shall be used (2) A physical inventory of the prop-
by the grantee or subgrantee in the erty must be taken and the results rec-
program or project for which it was ac- onciled with the property records at
quired as long as needed, whether or least once every two years.
not the project or program continues (3) A control system must be devel-
to be supported by Federal funds. When oped to ensure adequate safeguards to
no longer needed for the original pro- prevent loss, damage, or theft of the
gram or project, the equipment may be property. Any loss, damage, or theft
used in other activities currently or shall be investigated.
previously supported by a Federal (4) Adequate maintenance procedures
agency. must be developed to keep the property
(2) The grantee or subgrantee shall in good condition.
also make equipment available for use (5) If the grantee or subgrantee is au-
on other projects or programs cur- thorized or required to sell the prop-
rently or previously supported by the erty, proper sales procedures must be
Federal Government, providing such established to ensure the highest pos-
use will not interfere with the work on sible return.
the projects or program for which it (e) Disposition. When original or re-
was originally acquired. First pref- placement equipment acquired under a
erence for other use shall be given to grant or subgrant is no longer needed
other programs or projects supported for the original project or program or
339
§ 31.33 40 CFR Ch. I (7–1–00 Edition)
for other activities currently or pre- centage of participation in the pur-

viously supported by a Federal agency, chase to the current fair market value
disposition of the equipment will be of the property.
made as follows:
(1) Items of equipment with a current § 31.33 Supplies.
per-unit fair market value of less than (a) Title. Title to supplies acquired
$5,000 may be retained, sold or other- under a grant or subgrant will vest,
wise disposed of with no further obliga- upon acquisition, in the grantee or sub-
tion to the awarding agency. grantee respectively.
(2) Items of equipment with a current (b) Disposition. If there is a residual
per unit fair market value in excess of inventory of unused supplies exceeding
$5,000 may be retained or sold and the $5,000 in total aggregate fair market
awarding agency shall have a right to value upon termination or completion
an amount calculated by multiplying of the award, and if the supplies are
the current market value or proceeds not needed for any other federally
from sale by the awarding agency’s sponsored programs or projects, the
share of the equipment. grantee or subgrantee shall com-
(3) In cases where a grantee or sub- pensate the awarding agency for its
grantee fails to take appropriate dis- share.
position actions, the awarding agency
may direct the grantee or subgrantee § 31.34 Copyrights.
to take excess and disposition actions.
The Federal awarding agency re-
(f) Federal equipment. In the event a
serves a royalty-free, nonexclusive, and
grantee or subgrantee is provided fed-
irrevocable license to reproduce, pub-
erally-owned equipment:
lish or otherwise use, and to authorize
(1) Title will remain vested in the
others to use, for Federal Government
Federal Government.
purposes:
(2) Grantees or subgrantees will man-
age the equipment in accordance with (a) The copyright in any work devel-
Federal agency rules and procedures, oped under a grant, subgrant, or con-
and submit an annual inventory list- tract under a grant or subgrant; and
ing. (b) Any rights of copyright to which
(3) When the equipment is no longer a grantee, subgrantee or a contractor
needed, the grantee or subgrantee will purchases ownership with grant sup-
request disposition instructions from port.
the Federal agency.
§ 31.35 Subawards to debarred and
(g) Right to transfer title. The Federal suspended parties.
awarding agency may reserve the right
to transfer title to the Federal Govern- Grantees and subgrantees must not
ment or a third party named by the make any award or permit any award
awarding agency when such a third (subgrant or contract) at any tier to
party is otherwise eligible under exist- any party which is debarred or sus-
ing statutes. Such transfers shall be pended or is otherwise excluded from or
subject to the following standards: ineligible for participation in Federal
(1) The property shall be identified in assistance programs under Executive
the grant or otherwise made known to Order 12549, ‘‘Debarment and Suspen-
the grantee in writing. sion.’’
(2) The Federal awarding agency
shall issue disposition instruction § 31.36 Procurement.
within 120 calendar days after the end (a) States. When procuring property
of the Federal support of the project and services under a grant, a State will
for which it was acquired. If the Fed- follow the same policies and procedures
eral awarding agency fails to issue dis- it uses for procurements from its non-
position instructions within the 120 Federal funds. The State will ensure
calendar-day period the grantee shall that every purchase order or other con-
follow 31.32(e). tract includes any clauses required by
(3) When title to equipment is trans- Federal statutes and executive orders
ferred, the grantee shall be paid an and their implementing regulations.
amount calculated by applying the per- Other grantees and subgrantees will
340
follow paragraphs (b) through (i) in posed procurements to avoid purchase

this section. of unnecessary or duplicative items.
(b) Procurement standards. (1) Grant- Consideration should be given to con-
ees and subgrantees will use their own solidating or breaking out procure-
procurement procedures which reflect ments to obtain a more economical
applicable State and local laws and purchase. Where appropriate, an anal-
regulations, provided that the procure- ysis will be made of lease versus pur-
ments conform to applicable Federal chase alternatives, and any other ap-
law and the standards identified in this propriate analysis to determine the
section. most economical approach.
(2) Grantees and subgrantees will (5) To foster greater economy and ef-
maintain a contract administration ficiency, grantees and subgrantees are
system which ensures that contractors encouraged to enter into State and
perform in accordance with the terms, local intergovernmental agreements
conditions, and specifications of their for procurement or use of common
contracts or purchase orders. goods and services.
(3) Grantees and subgrantees will (6) Grantees and subgrantees are en-
maintain a written code of standards of couraged to use Federal excess and sur-
conduct governing the performance of plus property in lieu of purchasing new
their employees engaged in the award equipment and property whenever such
and administration of contracts. No use is feasible and reduces project
employee, officer or agent of the grant- costs.
ee or subgrantee shall participate in se- (7) Grantees and subgrantees are en-
lection, or in the award or administra- couraged to use value engineering
tion of a contract supported by Federal clauses in contracts for construction
funds if a conflict of interest, real or projects of sufficient size to offer rea-
apparent, would be involved. Such a sonable opportunities for cost reduc-
conflict would arise when: tions. Value engineering is a system-
(i) The employee, officer or agent, atic and creative anaylsis of each con-
(ii) Any member of his immediate tract item or task to ensure that its es-
family, sential function is provided at the
(iii) His or her partner, or overall lower cost.
(iv) An organization which employs, (8) Grantees and subgrantees will
or is about to employ, any of the make awards only to responsible con-
above, has a financial or other interest tractors possessing the ability to per-
in the firm selected for award. The form successfully under the terms and
grantee’s or subgrantee’s officers, em- conditions of a proposed procurement.
ployees or agents will neither solicit Consideration will be given to such
nor accept gratuities, favors or any- matters as contractor integrity, com-
thing of monetary value from contrac- pliance with public policy, record of
tors, potential contractors, or parties past performance, and financial and
to subagreements. Grantee and sub- technical resources.
grantees may set minimum rules where (9) Grantees and subgrantees will
the financial interest is not substantial maintain records sufficient to detail
or the gift is an unsolicited item of the significant history of a procure-
nominal intrinsic value. To the extent ment. These records will include, but
permitted by State or local law or reg- are not necessarily limited to the fol-
ulations, such standards or conduct lowing: rationale for the method of
will provide for penalties, sanctions, or procurement, selection of contract
other disciplinary actions for viola- type, contractor selection or rejection,
tions of such standards by the grant- and the basis for the contract price.
ee’s and subgrantee’s officers, employ- (10) Grantees and subgrantees will
ees, or agents, or by contractors or use time and material type contracts
their agents. The awarding agency may only—
in regulation provide additional prohi- (i) After a determination that no
bitions relative to real, apparent, or other contract is suitable, and
potential conflicts of interest. (ii) If the contract includes a ceiling
(4) Grantee and subgrantee proce- price that the contractor exceeds at its
dures will provide for a review of pro- own risk.
341
§ 31.36 40 CFR Ch. I (7–1–00 Edition)
(11) Grantees and subgrantees alone (v) Organizational conflicts of inter-

will be responsible, in accordance with est,
good administrative practice and sound (vi) Specifying only a ‘‘brand name’’
business judgment, for the settlement product instead of allowing ‘‘an equal’’
of all contractual and administrative product to be offered and describing
issues arising out of procurements. the performance of other relevant re-
These issues include, but are not lim- quirements of the procurement, and
ited to source evaluation, protests, dis- (vii) Any arbitrary action in the pro-
putes, and claims. These standards do curement process.
not relieve the grantee or subgrantee (2) Grantees and subgrantees will
of any contractual responsibilities conduct procurements in a manner
under its contracts. Federal agencies that prohibits the use of statutorily or
will not substitute their judgment for administratively imposed in-State or
that of the grantee or subgrantee un- local geographical preferences in the
less the matter is primarily a Federal evaluation of bids or proposals, except
concern. Violations of law will be rein those cases where applicable Federal
ferred to the local, State, or Federal statutes expressly mandate or encour-
authority having proper jurisdiction. age geographic preference. Nothing in
(12) Grantees and subgrantees will this section preempts State licensing
have protest procedures to handle and laws. When contracting for architec-
resolve disputes relating to their pro- tural and engineering (A/E) services,
curements and shall in all instances geographic location may be a selection
disclose information regarding the pro- criteria provided its application leaves
test to the awarding agency. A an appropriate number of qualified
protestor must exhaust all administra- firms, given the nature and size of the
tive remedies with the grantee and sub- project, to compete for the contract.
grantee before pursuing a protest with (3) Grantees will have written selec-
the Federal agency. Reviews of pro- tion procedures for procurement trans-
tests by the Federal agency will be lim- actions. These procedures will ensure
ited to: that all solicitations:
(i) Incorporate a clear and accurate
(i) Violations of Federal law or regu-
description of the technical require-
lations and the standards of this sec-
ments for the material, product, or
tion (violations of State or local law
service to be procured. Such descrip-
will be under the jurisdiction of State
tion shall not, in competitive procure-
or local authorities) and
ments, contain features which unduly
(ii) Violations of the grantee’s or sub-
restrict competition. The description
grantee’s protest procedures for failure may include a statement of the quali-
to review a complaint or protest. Pro- tative nature of the material, product
tests received by the Federal agency or service to be procured, and when
other than those specified above will be necessary, shall set forth those min-
referred to the grantee or subgrantee. imum essential characteristics and
(c) Competition. (1) All procurement standards to which it must conform if
transactions will be conducted in a it is to satisfy its intended use. De-
manner providing full and open com- tailed product specifications should be
petition consistent with the standards avoided if at all possible. When it is
of § 31.36. Some of the situations con- impractical or uneconomical to make a
sidered to be restrictive of competition clear and accurate description of the
include but are not limited to: technical requirements, a ‘‘brand name
(i) Placing unreasonable require- or equal’’ description may be used as a
ments on firms in order for them to means to define the performance or
qualify to do business, other salient requirements of a pro-
(ii) Requiring unnecessary experience curement. The specific features of the
and excessive bonding, named brand which must be met by
(iii) Noncompetitive pricing practices offerors shall be clearly stated; and
between firms or between affiliated (ii) Identify all requirements which
companies, the offerors must fulfill and all other
(iv) Noncompetitive awards to con- factors to be used in evaluating bids or
sultants that are on retainer contracts, proposals.
342
(4) Grantees and subgrantees will en- proposals must contain the following
sure that all prequalified lists of per- ‘‘Buy American’’ provision: In accord-
sons, firms, or products which are used ance with section 215 of the Clean
in acquiring goods and services are cur- Water Act (33 U.S.C. 1251 et seq.) and
rent and include enough qualified implementing EPA regulations, the
sources to ensure maximum open and contractor agrees that preference will
free competition. Also, grantees and be given to domestic construction ma-
subgrantees will not preclude potential terials by the contractor, subcontrac-
bidders from qualifying during the so- tors, materialmen and suppliers in the
licitation period. performance of this subagreement.
(5) Construction grants awarded (d) Methods of procurement to be fol-
under Title II of the Clean Water Act lowed—(1) Procurement by small purchase
are subject to the following ‘‘Buy procedures. Small purchase procedures
American’’ requirements in paragraphs are those relatively simple and infor-
(c)(5) (i)–(iii) of this section. Section mal procurement methods for securing
215 of the Clean Water Act requires services, supplies, or other property
that contractors give preference to the that do not cost more than the sim-
use of domestic material in the con- plified acquisition threshold fixed at 41
struction of EPA-funded treatment U.S.C. 403(11) (currently set at $100,000).
works. If small purchase procedures are used,
(i) Contractors must use domestic price or rate quotations shall be ob-
construction materials in preference to tained from an adequate number of
nondomestic material if it is priced no qualified sources.
more than 6 percent higher than the (2) Procurement by sealed bids (for-
bid or offered price of the nondomestic mal advertising). Bids are publicly so-
material, including all costs of delivery licited and a firm-fixed-price contract
to the construction site and any appli- (lump sum or unit price) is awarded to
cable duty, whether or not assessed. the responsible bidder whose bid, con-
The grantee will normally base the forming with all the material terms
computations on prices and costs in ef- and conditions of the invitation for
fect on the date of opening bids or pro- bids, is the lowest in price. The sealed
posals. bid method is the preferred method for
(ii) The award official may waive the procuring construction, if the condi-
Buy American provision based on fac- tions in 31.36(d)(2)(i) apply.
tors the award official considers rel-
(i) In order for sealed bidding to be
evant, including:
feasible, the following conditions
(A) Such use is not in the public in-
should be present:
terest;
(A) A complete, adequate, and real-
(B) The cost is unreasonable;
istic specification or purchase descrip-
(C) The Agency’s available resources
tion is available;
are not sufficient to implement the
provision, subject to the Deputy Ad- (B) Two or more responsible bidders
ministrator’s concurrence; are willing and able to compete effec-
(D) The articles, materials or sup- tively and for the business; and
plies of the class or kind to be used or (C) The procurement lends itself to a
the articles, materials or supplies from firm fixed price contract and the selec-
which they are manufactured are not tion of the successful bidder can be
mined, produced or manufactured in made principally on the basis of price.
the United States in sufficient and rea- (ii) If sealed bids are used, the fol-
sonably available commerical quan- lowing requirements apply:
tities or satisfactory quality for the (A) The invitation for bids will be
particular project; or publicly advertised and bids shall be
(E) Application of this provision is solicited from an adequate number of
contrary to multilateral government known suppliers, providing them suffi-
procurement agreements, subject to cient time prior to the date set for
the Deputy Administrator’s concur- opening the bids;
rence. (B) The invitation for bids, which
(iii) All bidding documents, subagree- will include any specifications and per-
ments, and, if appropriate, requests for tinent attachments, shall define the
343
§ 31.36 40 CFR Ch. I (7–1–00 Edition)
items or services in order for the bidder of services though A/E firms are a po-
to properly respond; tential source to perform the proposed
(C) All bids will be publicly opened at effort.
the time and place prescribed in the in- (4) Procurement by noncompetitive
vitation for bids; proposals is procurement through solic-
(D) A firm fixed-price contract award itation of a proposal from only one
will be made in writing to the lowest source, or after solicitation of a num-
responsive and responsible bidder. ber of sources, competition is deter-
Where specified in bidding documents, mined inadequate.
factors such as discounts, transpor- (i) Procurement by noncompetitive
tation cost, and life cycle costs shall be proposals may be used only when the
considered in determining which bid is award of a contract is infeasible under
lowest. Payment discounts will only be small purchase procedures, sealed bids
used to determine the low bid when or competitive proposals and one of the
prior experience indicates that such following circumstances applies:
discounts are usually taken advantage (A) The item is available only from a
of; and single source;
(E) Any or all bids may be rejected if (B) The public exigency or emergency
there is a sound documented reason. for the requirement will not permit a
(3) Procurement by competitive pro- delay resulting from competitive solic-
posals. The technique of competitive itation;
proposals is normally conducted with (C) The awarding agency authorizes
more than one source submitting an noncompetitive proposals; or
offer, and either a fixed-price or cost-
(D) After solicitation of a number of
reimbursement type contract is award-
sources, competition is determined in-
ed. It is generally used when conditions
adequate.
are not appropriate for the use of
(ii) Cost analysis, i.e., verifying the
sealed bids. If this method is used, the
proposed cost data, the projections of
following requirements apply:
the data, and the evaluation of the spe-
(i) Requests for proposals will be pub-
cific elements of costs and profits, is
licized and identify all evaluation fac-
required.
tors and their relative importance. Any
response to publicized requests for pro- (iii) Grantees and subgrantees may
posals shall be honored to the max- be required to submit the proposed pro-
imum extent practical; curement to the awarding agency for
(ii) Proposals will be solicited from pre-award review in accordance with
an adequate number of qualified paragraph (g) of this section.
sources; (e) Contracting with small and minority
(iii) Grantees and subgrantees will firms, women’s business enterprise and
have a method for conducting tech- labor surplus area firms. (1) The grantee
nical evaluations of the proposals re- and subgrantee will take all necessary
ceived and for selecting awardees; affirmative steps to assure that minor-
(iv) Awards will be made to the re- ity firms, women’s business enter-
sponsible firm whose proposal is most prises, and labor surplus area firms are
advantageous to the program, with used when possible.
price and other factors considered; and (2) Affirmative steps shall include:
(v) Grantees and subgrantees may (i) Placing qualified small and minor-
use competitive proposal procedures ity businesses and women’s business
for qualifications-based procurement of enterprises on solicitation lists;
architectural/engineering (A/E) profes- (ii) Assuring that small and minority
sional services whereby competitors’ businesses, and women’s business en-
qualifications are evaluated and the terprises are solicited whenever they
most qualified competitor is selected, are potential sources;
subject to negotiation of fair and rea- (iii) Dividing total requirements,
sonable compensation. The method, when economically feasible, into small-
where price is not used as a selection er tasks or quantities to permit max-
factor, can only be used in procure- imum participation by small and mi-
ment of A/E professional services. It nority business, and women’s business
cannot be used to purchase other types enterprises;
344
(iv) Establishing delivery schedules, (3) Costs or prices based on estimated

where the requirement permits, which costs for contracts under grants will be
encourage participation by small and allowable only to the extent that costs
minority business, and women’s busi- incurred or cost estimates included in
ness enterprises; negotiated prices are consistent with
(v) Using the services and assistance Federal cost principles (see § 31.22).
of the Small Business Administration, Grantees may reference their own cost
and the Minority Business Develop- principles that comply with the appli-
ment Agency of the Department of cable Federal cost principles.
Commerce; and (4) The cost plus a percentage of cost
(vi) Requiring the prime contractor, and percentage of construction cost
if subcontracts are to be let, to take methods of contracting shall not be
the affirmative steps listed in para-
used.
graphs (e)(2) (i) through (v) of this sec-
(g) Awarding agency review. (1) Grant-
tion.
(f) Contract cost and price. (1) Grant- ees and subgrantees must make avail-
ees and subgrantees must perform a able, upon request of the awarding
cost or price analysis in connection agency, technical specifications on pro-
with every procurement action includ- posed procurements where the award-
ing contract modifications. The meth- ing agency believes such review is
od and degree of analysis is dependent needed to ensure that the item and/or
on the facts surrounding the particular service specified is the one being pro-
procurement situation, but as a start- posed for purchase. This review gen-
ing point, grantees must make inde- erally will take place prior to the time
pendent estimates before receiving bids the specification is incorporated into a
or proposals. A cost analysis must be solicitation document. However, if the
performed when the offeror is required grantee or subgrantee desires to have
to submit the elements of his esti- the review accomplished after a solici-
mated cost, e.g., under professional, tation has been developed, the award-
consulting, and architectural engineering agency may still review the speci-
ing services contracts. A cost analysis fications, with such review usually lim-
will be necessary when adequate price ited to the technical aspects of the pro-
competition is lacking, and for sole posed purchase.
source procurements, including con- (2) Grantees and subgrantees must on
tract modifications or change orders, request make available for awarding
unless price resonableness can be es- agency pre-award review procurement
tablished on the basis of a catalog or documents, such as requests for pro-
market price of a commercial product posals or invitations for bids, inde-
sold in substantial quantities to the pendent cost estimates, etc. when:
general public or based on prices set by (i) A grantee’s or subgrantee’s pro-
law or regulation. A price analysis will curement procedures or operation fails
be used in all other instances to deter- to comply with the procurement stand-
mine the reasonableness of the pro-
ards in this section; or
posed contract price.
(ii) The procurement is expected to
(2) Grantees and subgrantees will ne-
gotiate profit as a separate element of exceed the simplified acquisition
the price for each contract in which threshold and is to be awarded without
there is no price competition and in all competition or only one bid or offer is
cases where cost analysis is performed. received in response to a solicitation;
To establish a fair and reasonable prof- or
it, consideration will be given to the (iii) The procurement, which is ex-
complexity of the work to be per- pected to exceed the simplified acquisi-
formed, the risk borne by the con- tion threshold, specifies a ‘‘brand
tractor, the contractor’s investment, name’’ product; or
the amount of subcontracting, the (iv) The proposed award is more than
quality of its record of past perform- the simplified acquisition threshold
ance, and industry profit rates in the and is to be awarded to other than the
surrounding geographical area for apparent low bidder under a sealed bid
similar work. procurement; or
345
§ 31.36 40 CFR Ch. I (7–1–00 Edition)
(v) A proposed contract modification (2) A performance bond on the part of

changes the scope of a contract or in- the contractor for 100 percent of the con-
creases the contract amount by more tract price. A ‘‘performance bond’’ is
than the simplified acquisition thresh- one executed in connection with a con-
old. tract to secure fulfillment of all the
(3) A grantee or subgrantee will be contractor’s obligations under such
exempt from the pre-award review in contract.
paragraph (g)(2) of this section if the (3) A payment bond on the part of the
awarding agency determines that its contractor for 100 percent of the contract
procurement systems comply with the price. A ‘‘payment bond’’ is one exe-
standards of this section. cuted in connection with a contract to
(i) A grantee or subgrantee may re- assure payment as required by law of
quest that its procurement system be all persons supplying labor and mate-
reviewed by the awarding agency to de- rial in the execution of the work pro-
termine whether its system meets vided for in the contract.
these standards in order for its system (i) Contract provisions. A grantee’s
to be certified. Generally, these re- and subgrantee’s contracts must con-
views shall occur where there is a contain provisions in paragraph (i) of this
tinuous high-dollar funding, and third- section. Federal agencies are permitted
party contracts are awarded on a reg- to require changes, remedies, changed
ular basis. conditions, access and records reten-
(ii) A grantee or subgrantee may self- tion, suspension of work, and other
certify its procurement system. Such clauses approved by the Office of Fed-
self-certification shall not limit the eral Procurement Policy.
awarding agency’s right to survey the (1) Administrative, contractual, or
system. Under a self-certification pro- legal remedies in instances where con-
cedure, awarding agencies may wish to tractors violate or breach contract
rely on written assurances from the terms, and provide for such sanctions
grantee or subgrantee that it is com- and penalties as may be appropriate.
plying with these standards. A grantee (Contracts more than the simplified ac-
or subgrantee will cite specific proce- quisition threshold)
dures, regulations, standards, etc., as (2) Termination for cause and for
being in compliance with these require- convenience by the grantee or sub-
ments and have its system available grantee including the manner by which
for review. it will be effected and the basis for set-
(h) Bonding requirements. For con- tlement. (All contracts in excess of
struction or facility improvement con- $10,000)
tracts or subcontracts exceeding the (3) Compliance with Executive Order
simplified acquisition threshold, the 11246 of September 24, 1965, entitled
awarding agency may accept the bond- ‘‘Equal Employment Opportunity,’’ as
ing policy and requirements of the amended by Executive Order 11375 of
grantee or subgrantee provided the October 13, 1967, and as supplemented
awarding agency has made a deter- in Department of Labor regulations (41
mination that the awarding agency’s CFR chapter 60). (All construction con-
interest is adequately protected. If tracts awarded in excess of $10,000 by
such a determination has not been grantees and their contractors or sub-
made, the minimum requirements shall grantees)
be as follows: (4) Compliance with the Copeland
(1) A bid guarantee from each bidder ‘‘Anti-Kickback’’ Act (18 U.S.C. 874) as
equivalent to five percent of the bid price. supplemented in Department of Labor
The ‘‘bid guarantee’’ shall consist of a regulations (29 CFR part 3). (All con-
firm commitment such as a bid bond, tracts and subgrants for construction
certified check, or other negotiable in- or repair)
strument accompanying a bid as assur- (5) Compliance with the Davis-Bacon
ance that the bidder will, upon accept- Act (40 U.S.C. 276a to 276a–7) as supple-
ance of his bid, execute such contrac- mented by Department of Labor regu-
tual documents as may be required lations (29 CFR part 5). (Construction
within the time specified. contracts in excess of $2000 awarded by
346
grantees and subgrantees when re- grantees or by a grantee’s contractors

quired by Federal grant program legis- or subcontractors to the maximum
lation) daily rate for a GS–18. (Grantees may,
(6) Compliance with Sections 103 and however, pay consultants more than
107 of the Contract Work Hours and this amount). This limitation applies
Safety Standards Act (40 U.S.C. 327–330) to consultation services of designated
as supplemented by Department of individuals with specialized skills who
Labor regulations (29 CFR part 5). are paid at a daily or hourly rate. This
(Construction contracts awarded by rate does not include transportation
grantees and subgrantees in excess of and subsistence costs for travel per-
$2000, and in excess of $2500 for other formed; grantees will pay these in ac-
contracts which involve the employ- cordance with their normal travel re-
ment of mechanics or laborers) imbursement practices. (Pub. L. 99–
(7) Notice of awarding agency re- 591).
quirements and regulations pertaining
(2) Subagreements with firms for
to reporting.
services which are awarded using the
(8) Notice of awarding agency re-
quirements and regulations pertaining procurement requirements in this part
to patent rights with respect to any are not affected by this limitation.
discovery or invention which arises or (k) Use of the same architect or engi-
is developed in the course of or under neer during construction. (1) If the
such contract. grantee is satisfied with the qualifica-
(9) Awarding agency requirements tions and performance of the architect
and regulations pertaining to copy- or engineer who provided any or all of
rights and rights in data. the facilities planning or design serv-
(10) Access by the grantee, the sub- ices for a waste-water treatment works
grantee, the Federal grantor agency, project and wishes to retain that firm
the Comptroller General of the United or individual during construction of
States, or any of their duly authorized the project, it may do so without fur-
representatives to any books, docu- ther public notice and evaluation of
ments, papers, and records of the con- qualifications, provided:
tractor which are directly pertinent to (i) The grantee received a facilities
that specific contract for the purpose planning (Step 1) or design grant (Step
of making audit, examination, ex- 2), and selected the architect or engi-
cerpts, and transcriptions. neer in accordance with EPA’s procure-
(11) Retention of all required records ment regulations in effect when EPA
for three years after grantees or sub- awarded the grant; or
grantees make final payments and all (ii) The award official approves non-
other pending matters are closed. competitive procurement under
(12) Compliance with all applicable § 31.36(d)(4) for reasons other than sim-
standards, orders, or requirements ply using the same individual or firm
issued under section 306 of the Clean that provided facilities planning or de-
Air Act (42 U.S.C. 1857(h)), section 508 sign services for the project; or
of the Clean Water Act (33 U.S.C. 1368),
(iii) The grantee attests that:
Executive Order 11738, and Environ-
mental Protection Agency regulations (A) The initial request for proposals
(40 CFR part 15). (Contracts, sub- clearly stated the possibility that the
contracts, and subgrants of amounts in firm or individual selected could be
excess of $100,000) awarded a subagreement for services
(13) Mandatory standards and policies during construction; and
relating to energy efficiency which are (B) The firm or individual was se-
contained in the State energy con- lected for facilities planning or design
servation plan issued in compliance services in accordance with procedures
with the Energy Policy and Conserva- specified in this section.
tion Act (Pub. L. 94–163, 89 Stat. 871). (C) No employee, officer or agent of
(j) Payment to consultants. (1) EPA the grantee, any member of their im-
will limit its participation in the sal- mediate families, or their partners
ary rate (excluding overhead) paid to have financial or other interest in the
individual consultants retained by firm selected for award; and
347
§ 31.37 40 CFR Ch. I (7–1–00 Edition)
(D) None of the grantee’s officers, them by Federal statutes and regula-
employees or agents solicited or actions.
cepted gratuities, favors or anything of (c) Exceptions. By their own terms,
monetary value from contractors or certain provisions of this part do not
other parties to subagreements. apply to the award and administration
(2) However, if the grantee uses the of subgrants:
procedures in paragraph (k)(1) of this (1) Section 31.10;
section to retain an architect or engi- (2) Section 31.11;
neer, any Step 3 subagreements be- (3) The letter-of-credit procedures
tween the architect or engineer and the specified in Treasury Regulations at 31
grantee must meet all of the other pro- CFR part 205, cited in § 31.21; and
curement provisions in § 31.36. (4) Section 31.50.
[53 FR 8068 and 8087, Mar. 11, 1988, and REPORTS, RECORDS, RETENTION, AND
amended at 53 FR 8075, Mar. 11, 1988; 60 FR
19639, 19644, Apr. 19, 1995]
ENFORCEMENT
§ 31.40 Monitoring and reporting pro-

§ 31.37 Subgrants. gram performance.
(a) States. States shall follow State (a) Monitoring by grantees. Grantees
law and procedures when awarding and are responsible for managing the day-
administering subgrants (whether on a to-day operations of grant and
cost reimbursement or fixed amount subgrant supported activities. Grantees
basis) of financial assistance to local must monitor grant and subgrant sup-
and Indian tribal governments. States ported activities to assure compliance
shall: with applicable Federal requirements
(1) Ensure that every subgrant in- and that performance goals are being
cludes any clauses required by Federal achieved. Grantee monitoring must
statute and executive orders and their cover each program, function or activ-
implementing regulations; ity.
(2) Ensure that subgrantees are (b) Nonconstruction performance re-
aware of requirements imposed upon ports. The Federal agency may, if it de-
them by Federal statute and regula- cides that performance information
tion; available from subsequent applications
(3) Ensure that a provision for com- contains sufficient information to
pliance with § 31.42 is placed in every meet its programmatic needs, require
cost reimbursement subgrant; and the grantee to submit a performance
(4) Conform any advances of grant report only upon expiration or termi-
funds to subgrantees substantially to nation of grant support. Unless waived
the same standards of timing and by the Federal agency this report will
amount that apply to cash advances by be due on the same date as the final Fi-
Federal agencies. nancial Status Report.
(b) All other grantees. All other grant- (1) Grantees shall submit annual per-
ees shall follow the provisions of this formance reports unless the awarding
part which are applicable to awarding agency requires quarterly or semi-an-
agencies when awarding and admin- nual reports. However, performance re-
istering subgrants (whether on a cost ports will not be required more fre-
reimbursement or fixed amount basis) quently than quarterly. Annual reports
of financial assistance to local and In- shall be due 90 days after the grant
dian tribal governments. Grantees year, quarterly or semi-annual reports
shall: shall be due 30 days after the reporting
(1) Ensure that every subgrant in- period. The final performance report
cludes a provision for compliance with will be due 90 days after the expiration
this part; or termination of grant support. If a
(2) Ensure that every subgrant in- justified request is submitted by a
cludes any clauses required by Federal grantee, the Federal agency may ex-
statute and executive orders and their tend the due date for any performance
implementing regulations; and report. Additionally, requirements for
(3) Ensure that subgrantees are unnecessary performance reports may
aware of requirements imposed upon be waived by the Federal agency.
348
(2) Performance reports will contain, report required by this part if not need-
for each grant, brief information on the ed.
following: (2) The grantee may waive any per-
(i) A comparison of actual accom- formance report from a subgrantee
plishments to the objectives estab- when not needed. The grantee may ex-
lished for the period. Where the output tend the due date for any performance
of the project can be quantified, a com- report from a subgrantee if the grantee
putation of the cost per unit of output will still be able to meet its perform-
may be required if that information ance reporting obligations to the Fed-
will be useful. eral agency.
(ii) The reasons for slippage if estab-
lished objectives were not met. § 31.41 Financial reporting.
(iii) Additional pertinent information (a) General. (1) Except as provided in
including, when appropriate, analysis paragraphs (a) (2) and (5) of this sec-
and explanation of cost overruns or tion, grantees will use only the forms
high unit costs. specified in paragraphs (a) through (e)
(3) Grantees will not be required to of this section, and such supple-
submit more than the original and two mentary or other forms as may from
copies of performance reports. time to time be authorized by OMB,
(4) Grantees will adhere to the stand- for:
ards in this section in prescribing per- (i) Submitting financial reports to
formance reporting requirements for Federal agencies, or
subgrantees. (ii) Requesting advances or reim-
(c) Construction performance reports. bursements when letters of credit are
For the most part, on-site technical in- not used.
spections and certified percentage-of- (2) Grantees need not apply the forms
completion data are relied on heavily prescribed in this section in dealing
by Federal agencies to monitor with their subgrantees. However,
progress under construction grants and grantees shall not impose more burden-
subgrants. The Federal agency will re- some requirements on subgrantees.
quire additional formal performance (3) Grantees shall follow all applica-
reports only when considered nec- ble standard and supplemental Federal
essary, and never more frequently than agency instructions approved by OMB
quarterly. to the extent required under the Paper-
(d) Significant developments. Events work Reduction Act of 1980 for use in
may occur between the scheduled per- connection with forms specified in
formance reporting dates which have paragraphs (b) through (e) of this sec-
significant impact upon the grant or tion. Federal agencies may issue sub-
subgrant supported activity. In such stantive supplementary instructions
cases, the grantee must inform the only with the approval of OMB. Federal
Federal agency as soon as the following agencies may shade out or instruct the
types of conditions become known: grantee to disregard any line item that
(1) Problems, delays, or adverse con- the Federal agency finds unnecessary
ditions which will materially impair for its decisionmaking purposes.
the ability to meet the objective of the (4) Grantees will not be required to
award. This disclosure must include a submit more than the original and two
statement of the action taken, or con- copies of forms required under this
templated, and any assistance needed part.
to resolve the situation. (5) Federal agencies may provide
(2) Favorable developments which en- computer outputs to grantees to expe-
able meeting time schedules and objec- dite or contribute to the accuracy of
tives sooner or at less cost than antici- reporting. Federal agencies may accept
pated or producing more beneficial re- the required information from grantees
sults than originally planned. in machine usable format or computer
(e) Federal agencies may make site printouts instead of prescribed forms.
visits as warranted by program needs. (6) Federal agencies may waive any
(f) Waivers, extensions. (1) Federal report required by this section if not
agencies may waive any performance needed.
349
§ 31.41 40 CFR Ch. I (7–1–00 Edition)
(7) Federal agencies may extend the matic data processing equipment pro-
due date of any financial report upon vided that the information to be sub-
receiving a justified request from a mitted is not changed in substance.
grantee. (2) Forecasts of Federal cash require-
(b) Financial Status Report—(1) Form. ments. Forecasts of Federal cash re-
Grantees will use Standard Form 269 or quirements may be required in the
269A, Financial Status Report, to re- ‘‘Remarks’’ section of the report.
port the status of funds for all non- (3) Cash in hands of subgrantees. When
construction grants and for construc- considered necessary and feasible by
tion grants when required in accord- the Federal agency, grantees may be
ance with § 31.41(e)(2)(iii). required to report the amount of cash
(2) Accounting basis. Each grantee will advances in excess of three days’ needs
report program outlays and program in the hands of their subgrantees or
income on a cash or accrual basis as contractors and to provide short nar-
prescribed by the awarding agency. If rative explanations of actions taken by
the Federal agency requires accrual in- the grantee to reduce the excess bal-
formation and the grantee’s accounting ances.
records are not normally kept on the (4) Frequency and due date. Grantees
accrual basis, the grantee shall not be must submit the report no later than 15
required to convert its accounting sys- working days following the end of each
tem but shall develop such accrual in- quarter. However, where an advance ei-
formation through and analysis of the ther by letter of credit or electronic
documentation on hand. transfer of funds is authorized at an
(3) Frequency. The Federal agency annualized rate of one million dollars
may prescribe the frequency of the re- or more, the Federal agency may re-
port for each project or program. How- quire the report to be submitted within
ever, the report will not be required 15 working days following the end of
more frequently than quarterly. If the each month.
Federal agency does not specify the (d) Request for advance or reimburse-
frequency of the report, it will be sub- ment—(1) Advance payments. Requests
mitted annually. A final report will be for Treasury check advance payments
required upon expiration or termi- will be submitted on Standard Form
nation of grant support. 270, Request for Advance or Reimburse-
(4) Due date. When reports are re- ment. (This form will not be used for
quired on a quarterly or semiannual drawdowns under a letter of credit,
basis, they will be due 30 days after the electronic funds transfer or when
reporting period. When required on an Treasury check advance payments are
annual basis, they will be due 90 days made to the grantee automatically on
after the grant year. Final reports will a predetermined basis.)
be due 90 days after the expiration or (2) Reimbursements. Requests for reim-
termination of grant support. bursement under nonconstruction
(c) Federal Cash Transactions Report— grants will also be submitted on Stand-
(1) Form. (i) For grants paid by letter or ard Form 270. (For reimbursement re-
credit, Treasury check advances or quests under construction grants, see
electronic transfer of funds, the grant- paragraph (e)(1) of this section.)
ee will submit the Standard Form 272, (3) The frequency for submitting pay-
Federal Cash Transactions Report, and ment requests is treated in § 31.41(b)(3).
when necessary, its continuation sheet, (e) Outlay report and request for reim-
Standard Form 272a, unless the terms bursement for construction programs. (1)
of the award exempt the grantee from Grants that support construction ac-
this requirement. tivities paid by reimbursement meth-
(ii) These reports will be used by the od.
Federal agency to monitor cash ad- (i) Requests for reimbursement under
vanced to grantees and to obtain dis- construction grants will be submitted
bursement or outlay information for on Standard Form 271, Outlay Report
each grant from grantees. The format and Request for Reimbursement for
of the report may be adapted as appro- Construction Programs. Federal agen-
priate when reporting is to be accom- cies may, however, prescribe the Re-
plished with the assistance of auto- quest for Advance or Reimbursement
350
form, specified in § 31.41(d), instead of the starting date specified in paragraph

this form. (c) of this section.
(ii) The frequency for submitting re- (2) If any litigation, claim, negotia-
imbursement requests is treated in tion, audit or other action involving
§ 31.41(b)(3). the records has been started before the
(2) Grants that support construction ac- expiration of the 3-year period, the
tivities paid by letter of credit, electronic records must be retained until comple-
funds transfer or Treasury check ad- tion of the action and resolution of all
vance. (i) When a construction grant is issues which arise from it, or until the
paid by letter of credit, electronic end of the regular 3-year period, which-
funds transfer or Treasury check ad- ever is later.
vances, the grantee will report its out- (3) To avoid duplicate recordkeeping,
lays to the Federal agency using awarding agencies may make special
Standard Form 271, Outlay Report and arrangements with grantees and sub-
Request for Reimbursement for Con- grantees to retain any records which
struction Programs. The Federal agen- are continuously needed for joint use.
cy will provide any necessary special The awarding agency will request
instruction. However, frequency and transfer of records to its custody when
due date shall be governed by § 31.41(b) it determines that the records possess
(3) and (4). long-term retention value. When the
(ii) When a construction grant is paid records are transferred to or main-
by Treasury check advances based on tained by the Federal agency, the 3-
periodic requests from the grantee, the year retention requirement is not ap-
advances will be requested on the form plicable to the grantee or subgrantee.
specified in § 31.41(d). (c) Starting date of retention period—(1)
(iii) The Federal agency may sub- General. When grant support is contin-
stitute the Financial Status Report ued or renewed at annual or other in-
specified in § 31.41(b) for the Outlay Re- tervals, the retention period for the
port and Request for Reimbursement records of each funding period starts on
for Construction Programs. the day the grantee or subgrantee sub-
mits to the awarding agency its single
(3) Accounting basis. The accounting
or last expenditure report for that pe-
basis for the Outlay Report and Re-
riod. However, if grant support is con-
quest for Reimbursement for Construc-
tinued or renewed quarterly, the reten-
tion Programs shall be governed by
tion period for each year’s records
§ 31.41(b)(2).
starts on the day the grantee submits
§ 31.42 Retention and access require- its expenditure report for the last quar-
ments for records. ter of the Federal fiscal year. In all
other cases, the retention period starts
(a) Applicability. (1) This section ap- on the day the grantee submits its
plies to all financial and programmatic final expenditure report. If an expendi-
records, supporting documents, statis- ture report has been waived, the reten-
tical records, and other records of tion period starts on the day the report
grantees or subgrantees which are: would have been due.
(i) Required to be maintained by the (2) Real property and equipment
terms of this part, program regulations records. The retention period for real
or the grant agreement, or property and equipment records starts
(ii) Otherwise reasonably considered from the date of the disposition or re-
as pertinent to program regulations or placement or transfer at the direction
the grant agreement. of the awarding agency.
(2) This section does not apply to (3) Records for income transactions
records maintained by contractors or after grant or subgrant support. In some
subcontractors. For a requirement to cases grantees must report income
place a provision concerning records in after the period of grant support.
certain kinds of contracts, see Where there is such a requirement, the
§ 31.36(i)(10). retention period for the records per-
(b) Length of retention period. (1) Ex- taining to the earning of the income
cept as otherwise provided, records starts from the end of the grantee’s fis-
must be retained for three years from cal year in which the income is earned.
351
§ 31.43 40 CFR Ch. I (7–1–00 Edition)
(4) Indirect cost rate proposals, cost al- § 31.43 Enforcement.

locations plans, etc. This paragraph ap-
(a) Remedies for noncompliance. If a
plies to the following types of docu- grantee or subgrantee materially fails
ments, and their supporting records: to comply with any term of an award,
indirect cost rate computations or pro- whether stated in a Federal statute or
posals, cost allocation plans, and any regulation, an assurance, in a State
similar accounting computations of plan or application, a notice of award,
the rate at which a particular group of or elsewhere, the awarding agency may
costs is chargeable (such as computer take one or more of the following ac-
usage chargeback rates or composite tions, as appropriate in the cir-
fringe benefit rates). cumstances:
(i) If submitted for negotiation. If the (1) Temporarily withhold cash pay-
proposal, plan, or other computation is ments pending correction of the defi-
required to be submitted to the Federal ciency by the grantee or subgrantee or
Government (or to the grantee) to form more severe enforcement action by the
the basis for negotiation of the rate, awarding agency,
then the 3-year retention period for its (2) Disallow (that is, deny both use of
supporting records starts from the date funds and matching credit for) all or
of such submission. part of the cost of the activity or ac-
(ii) If not submitted for negotiation. If tion not in compliance,
the proposal, plan, or other computa- (3) Wholly or partly suspend or ter-
tion is not required to be submitted to minate the current award for the
the Federal Government (or to the grantee’s or subgrantee’s program,
grantee) for negotiation purposes, then (i) EPA can also wholly or partly
the 3-year retention period for the pro- annul the current award for the grant-
posal plan, or computation and its sup- ee’s or subgrantee’s program,
porting records starts from end of the (ii) [Reserved]
fiscal year (or other accounting period) (4) Withhold further awards for the
covered by the proposal, plan, or other program, or
computation. (5) Take other remedies that may be
(d) Substitution of microfilm. Copies legally available.
made by microfilming, photocopying, (b) Hearings, appeals. In taking an en-
or similar methods may be substituted forcement action, the awarding agency
for the original records. will provide the grantee or subgrantee
an opportunity for such hearing, ap-
(e) Access to records—(1) Records of
peal, or other administrative pro-
grantees and subgrantees. The awarding
ceeding to which the grantee or sub-
agency and the Comptroller General of
grantee is entitled under any statute
the United States, or any of their au-
or regulation applicable to the action
thorized representatives, shall have the involved.
right of access to any pertinent books,
(c) Effects of suspension and termi-
documents, papers, or other records of nation. Costs of grantee or subgrantee
grantees and subgrantees which are resulting from obligations incurred by
pertinent to the grant, in order to the grantee or subgrantee during a sus-
make audits, examinations, excerpts, pension or after termination of an
and transcripts. award are not allowable unless the
(2) Expiration of right of access. The awarding agency expressly authorizes
rights of access in this section must them in the notice of suspension or ter-
not be limited to the required reten- mination or subsequently. Other grant-
tion period but shall last as long as the ee or subgrantee costs during suspen-
records are retained. sion or after termination which are
(f) Restrictions on public access. The necessary and not reasonably avoidable
Federal Freedom of Information Act (5 are allowable if:
U.S.C. 552) does not apply to records (1) The costs result from obligations
Unless required by Federal, State, or which were properly incurred by the
local law, grantees and subgrantees are grantee or subgrantee before the effec-
not required to permit public access to tive date of suspension or termination,
their records. are not in anticipation of it, and, in the
352
case of a termination, are Subpart D—After-the-Grant

noncancellable, and, Requirements
(2) The costs would be allowable if
the award were not suspended or ex- § 31.50 Closeout.
pired normally at the end of the fund- (a) General. The Federal agency will
ing period in which the termination close out the award when it determines
takes effect. that all applicable administrative ac-
(d) Relationship to Debarment and Sus- tions and all required work of the
pension. The enforcement remedies grant has been completed.
identified in this section, including (b) Reports. Within 90 days after the
suspension and termination, do not expiration or termination of the grant,
preclude grantee or subgrantee from the grantee must submit all financial,
being subject to ‘‘Debarment and Sus- performance, and other reports re-
pension’’ under E.O. 12549 (see § 31.35). quired as a condition of the grant.
Upon request by the grantee, Federal
[53 FR 8068 and 8087, Mar. 11, 1988, as amend-
ed at 53 FR 8076, Mar. 11, 1988]
agencies may extend this timeframe.
These may include but are not limited
§ 31.44 Termination for convenience. to:
(1) Final performance or progress re-
Except as provided in § 31.43 awards port.
may be terminated in whole or in part (2) Financial Status Report (SF 269)
only as follows: or Outlay Report and Request for Re-
(a) By the awarding agency with the imbursement for Construction Pro-
consent of the grantee or subgrantee in grams (SF–271) (as applicable.)
which case the two parties shall agree (3) Final request for payment (SF–
upon the termination conditions, in- 270) (if applicable).
cluding the effective date and in the (4) Invention disclosure (if applica-
case of partial termination, the portion ble).
to be terminated, or (5) Federally-owned property report:
(b) By the grantee or subgrantee In accordance with § 31.32(f), a grantee
upon written notification to the award- must submit an inventory of all feder-
ing agency, setting forth the reasons ally owned property (as distinct from
for such termination, the effective property acquired with grant funds) for
date, and in the case of partial termi- which it is accountable and request dis-
nation, the portion to be terminated. position instructions from the Federal
However, if, in the case of a partial ter- agency of property no longer needed.
mination, the awarding agency deter- (c) Cost adjustment. The Federal agen-
mines that the remaining portion of cy will, within 90 days after receipt of
the award will not accomplish the pur- reports in paragraph (b) of this section,
poses for which the award was made, make upward or downward adjust-
the awarding agency may terminate ments to the allowable costs.
the award in its entirety under either (d) Cash adjustments. (1) The Federal
§ 31.43 or paragraph (a) of this section. agency will make prompt payment to
the grantee for allowable reimbursable
§ 31.45 Quality assurance. costs.
If the grantee’s project involves envi- (2) The grantee must immediately re-
ronmentally related measurements or fund to the Federal agency any balance
data generation, the grantee shall de- of unobligated (unencumbered) cash
velop and implement quality assurance advanced that is not authorized to be
practices consisting of policies, proce- retained for use on other grants.
dures, specifications, standards, and § 31.51 Later disallowances and adjust-
documentation sufficient to produce ments.
data of quality adequate to meet
The closeout of a grant does not af-
project objectives and to minimize loss
fect:
of data due to out-of-control conditions
(a) The Federal agency’s right to dis-
or malfunctions.
allow costs and recover funds on the
[53 FR 8076, Mar. 11, 1988] basis of a later audit or other review;
353
§ 31.52 40 CFR Ch. I (7–1–00 Edition)
(b) The grantee’s obligation to return trator responsible for the assistance
any funds due as a result of later re- program.
funds, corrections, or other trans- (2) For final decisions issued by a Re-
actions; gional disputes decision official, the re-
(c) Records retention as required in quest for review shall be filed with the
§ 31.42; Regional Administrator. If the Re-
(d) Property management require- gional Administrator issued the final
ments in §§ 31.31 and 31.32; and decision, the request for reconsider-
(e) Audit requirements in § 31.26. ation shall be filed with the Regional
§ 31.52 Collection of amounts due. Administrator.
(d) The request shall include:
(a) Any funds paid to a grantee in ex-
(1) A copy of the EPA disputes deci-
cess of the amount to which the grant-
sion official’s final decision;
ee is finally determined to be entitled
under the terms of the award con- (2) A statement of the amount in dis-
stitute a debt to the Federal Govern- pute;
ment. If not paid within a reasonable (3) A description of the issues in-
period after demand, the Federal agen- volved; and
cy may reduce the debt by: (4) A concise statement of the objec-
(1) Making an adminstrative offset tions to the final decision.
against other requests for reimburse- (e) The disputant(s) may be rep-
ments, resented by counsel and may submit
(2) Withholding advance payments documentary evidence and briefs for
otherwise due to the grantee, or inclusion in a written record.
(3) Other action permitted by law. (f) Disputants are entitled to an in-
(b) Except where otherwise provided formal conference with EPA officials.
by statutes or regulations, the Federal (g) Disputants are entitled to a writ-
agency will charge interest on an over-
ten decision from the appropriate Re-
due debt in accordance with the Fed-
gional or Assistant Administrator.
eral Claims Collection Standards (4
CFR Ch. II). The date from which inter- (h) A decision by the Assistant Ad-
est is computed is not extended by liti- ministrator to confirm the final deci-
gation or the filing of any form of ap- sion of a Headquarters disputes deci-
peal. sion official will constitute the final
Agency action.
Subpart E—Entitlement [Reserved] (i) A decision by the Regional Admin-
istrator to confirm the Regional dis-
putes decision official’s decision will
Subpart F—Disputes constitute the final Agency action.
§ 31.70 Disputes. However, a petition for discretionary
review by the Assistant Administrator
(a) Disagreements should be resolved
responsible for the assistance program
at the lowest level possible.
may be filed within 30 calendar days of
(b) If an agreement cannot be
the Regional Administrator’s decision.
reached, the EPA disputes decision of-
The petition shall be sent to the As-
ficial will provide a written final deci-
sion. The EPA disputes decision offi- sistant Administrator by registered
cial is the individual designated by the mail, return receipt requested, and
award official to resolve disputes con- shall include:
cerning assistance agreements. (1) A copy of the Regional Adminis-
(c) The disputes decision official’s de- trator’s decision; and
cision will constitute final agency ac- (2) A concise statement of the objec-
tion unless a request for review is filed tions to the decision.
by registered mail, return receipt re- (j) If the Assistant Administrator de-
quested, within 30 calendar days of the cides not to review the Regional Ad-
date of the decision. ministrator’s decision, the Assistant
(1) For final decisions issued by an Administrator will advise the dispu-
EPA disputes decision official at Head- tant(s) in writing that the Regional
quarters, the request for review shall Administrator’s decision remains the
be filed with the Assistant Adminis- final Agency action.
354
(k) If the Assistant Administrator de- cies, procedures and guidelines to implement
cides to review the Regional Adminis- the Act. It specifies that the Director shall
trator’s decision, the review will gen- designate ‘‘cognizant’’ Federal agencies, de-
termine criteria for making appropriate
erally be limited to the written record
charges to Federal programs for the cost of
on which the Regional Administrator’s audits, and provide procedures to assure that
decision was based. The Assistant Ad- small firms or firms owned and controlled by
ministrator may allow the disputant(s) disadvantaged individuals have the oppor-
to submit briefs in support of the peti- tunity to participate in contracts for single
tion for review and may provide an op- audits.
portunity for an informal conference in 4. Policy. The Single Audit Act requires the
order to clarify technical or legal following:
issues. After reviewing the Regional a. State or local governments that receive
$100,000 or more a year in Federal financial
Administrator’s decision, the Assistant assistance shall have an audit made in ac-
Administrator will issue a written de- cordance with this Circular.
cision which will then become the final b. State or local governments that receive
Agency action. between $25,000 and $100,000 a year shall have
(l) Reviews may not be requested of: an audit made in accordance with this Cir-
(1) Decisions on requests for excep- cular, or in accordance with Federal laws
tions under § 31.6; and regulations governing the programs they
(2) Bid protest decisions under participate in.
§ 31.36(b)(12); c. State or local governments that receive
less than $25,000 a year shall be exempt from
(3) National Environmental Policy compliance with the Act and other Federal
Act decisions under part 6; audit requirements. These State and local
(4) Advanced wastewater treatment governments shall be governed by audit re-
decisions of the Administrator; and quirements prescribed by State or local law
(5) Policy decisions of the EPA Audit or regulation.
Resolution Board. d. Nothing in this paragraph exempts State
or local governments from maintaining
[53 FR 8076, Mar. 11, 1988] records of Federal financial assistance or
from providing access to such records to Fed-
APPENDIX A TO PART 31—AUDIT RE- eral agencies, as provided for in Federal law
QUIREMENTS FOR STATE AND LOCAL or in Circular A–102, ‘‘Uniform requirements
GOVERNMENT RECIPIENTS for grants to State or local governments.’’
5. Definitions. For the purposes of this Cir-
EXECUTIVE OFFICE OF THE PRESIDENT cular the following definitions from the Sin-
Office of Management and Budget gle Audit Act apply:
a. Cognizant agency means the Federal
Circular No. A–128 agency assigned by the Office of Manage-
ment and Budget to carry out the respon-
April 12, 1985 sibilities described in paragraph 11 of this
To the Heads of Executive Departments and Circular.
Establishments. b. Federal financial assistance means assist-
Subject: Audits of State and Local Govern- ance provided by a Federal agency in the
ments. form of grants, contracts, cooperative agree-
1. Purpose. This Circular is issued pursuant ments, loans, loan guarantees, property, in-
to the Single Audit Act of 1984, Public Law terest subsidies, insurance, or direct appro-
98–502. It establishes audit requirements for priations, but does not include direct Federal
State and local governments that receive cash assistance to individuals. It includes
Federal aid, and defines Federal responsibil- awards received directly from Federal agen-
ities for implementing and monitoring those cies, or indirectly through other units of
requirements. State and local governments.
2. Supersession. The Circular supersedes At- c. Federal agency has the same meaning as
tachment P, ‘‘Audit Requirements,’’ of Cir- the term agency in section 551(1) of Title 5,
cular A–102, ‘‘Uniform requirements for United States Code.
grants to State and local governments.’’ d. Generally accepted accounting principles
3. Background. The Single Audit Act builds has the meaning specified in the generally
upon earlier efforts to improve audits of Fed- accepted government auditing standards.
eral aid programs. The Act requires State or e. Generally accepted government auditing
local governments that receive $100,000 or standards means the Standards for Audit of
more a year in Federal funds to have an Government Organizations, Programs, Activi-
audit made for that year. Section 7505 of the ties, and Functions, developed by the Comp-
Act requires the Director of the Office of troller General, dated February 27, 1981.
Management and Budget to prescribe poli- f. Independent auditor means:
355
(1) A State or local government auditor the option of that government, it may cover
who meets the independence standards speci- departments, agencies or establishments
fied in generally accepted government audit- that received, expended, or otherwise admin-
ing standards; or istered Federal financial assistance during
(2) A public accountant who meets such the year. However, if a State or local govern-
independence standards. ment receives $25,000 or more in General
g. Internal controls means the plan of orga- Revenue Sharing Funds in a fiscal year, it
nization and methods and procedures adopt- shall have an audit of its entire operations.
ed by management to ensure that: A series of audits of individual departments,
(1) Resource use is consistent with laws, agencies, and establishments for the same
regulations, and policies; fiscal year may be considered a single audit.
(2) Resources are safeguarded against c. Public hospitals and public colleges and
waste, loss, and misuse; and
universities may be excluded from State and
(3) Reliable data are obtained, maintained,
local audits and the requirements of this Cir-
and fairly disclosed in reports.
cular. However, if such entities are excluded,
h. Indian tribe means any Indian tribe,
audits of these entities shall be made in ac-
band, nations, or other organized group or
community, including any Alaskan Native cordance with statutory requirements and
village or regional or village corporations (as the provisions of Circular A–110. ‘‘Uniform
defined in, or established under, the Alaskan requirements for grants to universities, hos-
Native Claims Settlement Act) that is recog- pitals, and other nonprofit organizations.’’
nized by the United States as eligible for the d. The auditor shall determine whether:
special programs and services provided by (1) The financial statements of the govern-
the United States to Indians because of their ment, department, agency or establishment
status as Indians. present fairly its financial position and the
i. Local government means any unit of local results of its financial operations in accord-
government within a State, including a ance with generally accepted accounting
county, a borough, municipality, city, town, principles:
township, parish, local public authority, spe- (2) The organization has internal account-
cial district, school district, intrastate dis- ing and other control systems to provide rea-
trict, council of governments, and any other sonable assurance that it is managing Fed-
instrumentality of local government. eral financial assistance programs in compli-
j. Major Federal Assistance Program, as de- ance with applicable laws and regulations;
fined by Pub. L. 98–502, is described in the and
Attachment to this Circular. (3) The organization has complied with
k. Public accountants means those individ- laws and regulations that may have material
uals who meet the qualification standards effect on its financial statements and on
included in generally accepted government each major Federal assistance program.
auditing standards for personnel performing
7. Frequency of audit. Audits shall be made
government audits.
annually unless the State or local govern-
l. State means any State of the United
ment has, by January 1, 1987, a constitu-
States, the District of Columbia, the Com-
tional or statutory requirement for less fre-
monwealth of Puerto Rico, the Virgin Is-
quent audits. For those governments, the
lands, Guam, American Samoa, the Com-
monwealth of the Northern Mariana Islands, cognizant agency shall permit biennial au-
and the Trust Territory of the Pacific Is- dits, covering both years, if the government
lands, any instrumentality thereof, and any so requests. It shall also honor requests for
multi-State, regional, or interstate entity biennial audits by governments that have an
that has governmental functions and any In- administrative policy calling for audits less
dian tribe. frequent than annual, but only for fiscal
m. Subrecipient means any person or gov- years beginning before January 1, 1987.
ernment department, agency, or establish- 8. Internal control and compliance reviews.
ment that receives Federal financial assist- The Single Audit Act requires that the inde-
ance to carry out a program through a State pendent auditor determine and report on
or local government, but does not include an whether the organization has internal con-
individual that is a beneficiary of such a pro- trol systems to provide reasonable assurance
gram. A subrecipient may also be a direct re- that it is managing Federal assistance pro-
cipient of Federal financial assistance. grams in compliance with applicable laws
6. Scope of audit. The Single Audit Act pro- and regulations.
vides that: a. Internal control review. In order to pro-
a. The audit shall be made by an inde- vide this assurance the auditor must make a
pendent auditor in accordance with gen- study and evaluation of internal control sys-
erally accepted government auditing stand- tems used in administering Federal assist-
ards covering financial and compliance au- ance programs. The study and evaluation
dits. must be made whether or not the auditor in-
b. The audit shall cover the entire oper- tends to place reliance on such systems. As
ations of a State or local government or, at part of this review, the auditor shall:
356
(1) Test whether these internal control sys- ascertained by referring to the Compliance
tems are functioning in accordance with pre- Supplement for Single Audits of State and Local
scribed procedures. Governments, issued by OMB and available
(2) Examine the recipient’s system for from the Government Printing Office. For
monitoring subrecipients and obtaining and those programs not covered in the Compli-
acting on subrecipient audit reports. ance Supplement, the auditor may ascertain
b. Compliance review. The law also requires compliance requirements by researching the
the auditor to determine whether the organi- statutes, regulations, and agreements gov-
zation has complied with laws and regula- erning individual programs.
tions that may have a material effect on (3) Transactions related to other Federal
each major Federal assistance program. assistance programs that are selected in con-
(1) In order to determine which major pro- nection with examinations of financial state-
grams are to be tested for compliance, State ments and evaluations of internal controls
and local governments shall identify in their shall be tested for compliance with Federal
accounts all Federal funds received and ex- laws and regulations that apply to such
pended and the programs under which they transactions.
were received. This shall include funds re- 9. Subrecipients. State or local governments
ceived directly from Federal agencies and that receive Federal financial assistance and
through other State and local governments. provide $25,000 or more of it in a fiscal year
(2) The review must include the selection to a subrecipient shall:
and testing of a representative number of a. Determine whether State or local sub-
charges from each major Federal assistance recipients have met the audit requirements
program. The selection and testing of trans- of this Circular and whether subrecipients
actions shall be based on the auditor’s pro- covered by Circular A–110. ‘‘Uniform require-
fessional judgment considering such factors ments for grants to universities, hospitals,
as the amount of expenditures for the pro- and other nonprofit organizations,’’ have
gram and the individual awards; the newness met that requirement;
of the program or changes in its conditions; b. Determine whether the subrecipient
prior experience with the program, particu- spent Federal assistance funds provided in
larly as revealed in audits and other evalua- accordance with applicable laws and regula-
tions (e.g., inspections program reviews); the tions. This may be accomplished by review-
extent to which the program is carried out ing an audit of the subrecipient made in ac-
through subrecipients; the extent to which cordance with this Circular, Circular A–110,
the program contracts for goods or services; or through other means (e.g., program re-
the level to which the program is already views) if the subrecipient has not yet had
subject to program reviews or other forms of such an audit;
independent oversight; the adequacy of the c. Ensure that appropriate corrective ac-
controls for ensuring compliance; the expec- tion is taken within six months after receipt
tation of adherence or lack of adherence to of the audit report in instances of non-
the applicable laws and regulations; and the compliance with Federal laws and regula-
potential impact of adverse findings. tions;
(a) In making the test of transactions, the d. Consider whether subrecipient audits ne-
auditor shall determine whether. cessitate adjustment of the recipient’s own
records; and
—The amounts reported as expenditures e. Require each subrecipient to permit
were for allowable services, and independent auditors to have access to the
—The records show that those who received records and financial statements as nec-
services or benefits were eligible to receive essary to comply with this Circular.
them. 10. Relation to other audit requirements. The
(b) In addition to transaction testing, the Single Audit Act provides that an audit
auditor shall determine whether: made in accordance with this Circular shall
—Matching requirements, levels of effort and be in lieu of any financial or financial com-
earmarking limitations were met, pliance audit required under individual Fed-
—Federal financial reports and claims for eral assistance programs. To the extent that
advances and reimbursements contain in- a single audit provides Federal agencies with
formation that is supported by the books information and assurance they need to
and records from which the basic financial carry out their overall responsibilities, they
statements have been prepared, and shall rely upon and use such information.
—Amounts claimed or used for matching However, a Federal agency shall make any
were determined in accordance with OMB additional audits which are necessary to
Circular A–87, ‘‘Cost principles for State carry out its responsibilities under Federal
and local governments,’’ and Attachment law and regulation. Any additional Federal
F of Circular A–102, ‘‘Uniform require- audit effort shall be planned and carried out
ments for grants to State and local govern- in such a way as to avoid duplication.
ments.’’ a. The provisions of this Circular do not
(c) The principal compliance requirements limit the authority of Federal agencies to
of the largest Federal aid programs may be make, or contract for audits and evaluations
357
of Federal financial assistance programs, nor ferred to appropriate professional bodies for
do they limit the authority of any Federal disciplinary action.
agency Inspector General or other Federal (6) Coordinate, to the extent practicable,
audit official. audits made by or for Federal agencies that
b. The provisions of this Circular do not are in addition to the audits made pursuant
authorize any State or local government or to this Circular, so that the additional au-
subrecipient thereof to constrain Federal dits build up such audits.
agencies, in any manner, from carrying out (7) Oversee the resolution of audit findings
additional audits. that affect the programs of more than one
c. A Federal agency that makes or con- agency.
tracts for audits in additon to the audits 12. Illegal acts or irregularities. If the auditor
made by recipients pursuant to this Circular becomes aware of illegal acts or other irreg-
shall, consistent with other applicable laws ularities, prompt notice shall be given to re-
and regulations, arrange for funding the cost cipient management officials above the level
of such additional audits. Such additional of involvement. (See also program 13(a)(3)
audits include economy and efficiency au- below for the auditor’s reporting responsibil-
dits, program results audits, and program ities.) The recipient, in turn, shall promptly
evaluations. notify the cognizant agency of the illegal
11. Cognizant agency responsibilities. The acts or irregularities and of proposed and ac-
Single Audit Act provides for congnizant tual actions, if any. Illegal acts and irreg-
Federal agencies to oversee the implementa- ularities include such matters as conflicts of
tion of this Circular. interest, falsification of records or reports,
a. The Office of Management and Budget and misappropriations of funds or other as-
will assign cognizant agencies for States and sets.
their subdivisions and larger local govern- 13. Audit Reports. Audit reports must be
ments and their subdivisions. Other Federal prepared at the completion of the audit. Re-
agencies may participate with an assigned ports serve many needs of State and local
cognizant agency, in order to fulfill the cog- governments as well as meeting the require-
nizant responsibilities. Smaller governments ments of the Single Audit Act.
not assigned a cognizant agency will be a. The audit report shall state that the
under the general oversight of the Federal audit was made in accordance with the pro-
agency that provides them the most funds visions of this Circular. The report shall be
whether directly or indirectly. made up of at least:
b. A cognizant agency shall have the fol-
(1) The auditor’s report on financial state-
lowing responsibilities:
ments and on a schedule of Federal assist-
(1) Ensure that audits are made and re- ance; the financial statements; and a sched-
ports are received in a timely manner and in ule of Federal assistance, showing the total
accordance with the requirements of this expenditures for each Federal assitance pro-
Circular. gram as identified in the Catalog of Federal
(2) Provide technical advice and liaison to Domestic Assistance. Federal programs or
State and local governments and inde- grants that have not been assigned a catalog
pendent auditors. number shall be identified under the caption
(3) Obtain or make quality control reviews ‘‘other Federal assistance.’’
of selected audits made by non-Federal audit (2) The author’s report on the study and
organizations, and provide the results, when evaluation of internal control systems must
appropriate, to other interested organiza- identify the organization’s significant inter-
tions. nal accounting controls, and those controls
(4) Promptly inform other affected Federal designed to provide reasonable assurance
agencies and appropriate Federal law en- that Federal programs are being managed in
forcement officials of any reported illegal compliance with laws and regulations. It
acts or irregularities. They should also in- must also identify the controls that were
form State or local law enforcement and evaluated, the controls that were not evalu-
prosecuting authorities, if not advised by the ated, and the material weaknesses identified
recipient, of any violation of law within as a result of the evaluation.
their jurisdiction.
(3) The auditor’s report on compliance con-
(5) Advise the recipient of audits that have
taining:
been found not to have met the requirements
set forth in this Circular. In such instances, —A statement of positive assurance with re-
the recipient will be expected to work with spect to those items tested for compliance,
the auditor to take corrective action. If cor- including compliance with law and regula-
rective action is not taken, the cognizant tions pertaining to financial reports and
agency shall notify the recipient and Federal claims for advances and reimbursements;
awarding agencies of the facts and make rec- —Negative assurance on those items not
ommendations for followup action. Major in- tested;
adequacies or repetitive substandard per- —A summary of all instances of noncompli-
formance of independent auditors shall be re- ance; and
358
—An identification of total amounts ques- 15. Audit workpapers and reports. Work-
tioned, if any, for each Federal assistance papers and reports shall be retained for a
award, as a result of noncompliance. minimum of three years from the date of the
b. The three parts of the audit report may audit report, unless the auditor is notified in
be bound into a single report, or presented at writing by the cognizant agency to extend
the same time as separate documents. the retention period. Audit workpapers shall
c. All fraud abuse, or illegal acts or indica- be made available upon request to the cog-
tions of such acts, including all questioned nizant agency or its designee or the General
costs found as the result of these acts that Accounting Office, at the completion of the
auditors become aware of, should normally audit.
be covered in a separate written report sub- 16. Audit Costs. The cost of audits made in
mitted in accordance with paragraph 13f. accordance with the provisions of this Cir-
d. In addition to the audit report, the re- cular are allowable charges to Federal as-
cipient shall provide comments on the find- sistance programs.
ings and recommendations in the report, in- a. The charges may be considered a direct
cluding a plan for corrective action taken or cost or an allocated indirect cost, deter-
planned and comments on the status of cor- mined in accordance with the provision of
rective action taken on prior findings. If cor- Circular A–87, ‘‘Cost principles for State and
rective action is not necessary, a statement local governments.’’
describing the reason it is not should accom- b. Generally, the percentage of costs
pany the audit report. charged to Federal assistance programs for a
e. The reports shall be made available by single audit shall not exceed the percentage
the State or local government for public in- that Federal funds expended represent of
spection within 30 days after the completion total funds expended by the recipient during
of the audit. the fiscal year. The percentage may be ex-
f. In accordance with generally accepted ceeded, however, if appropriate documenta-
government audit standards, reports shall be tion demonstrates higher actual cost.
submitted by the auditor to the organization 17. Sanctions. The Single Audit Act pro-
audited and to those requiring or arranging vides that no cost may be charged to Federal
for the audit. In addition, the recipient shall assistance programs for audits required by
submit copies of the reports to each Federal the Act that are not made in accordance
department or agency that provided Federal with this Circular. In cases of continued in-
assistance funds to the recipient. Sub- ability or unwillingness to have a proper
recipients shall submit copies to recipients audit, Federal agencies must consider other
that provided them Federal assistance funds. appropriate sanctions including:
The reports shall be sent within 30 days after —Withholding a percentage of assistance
the completion of the audit, but no later
payments until the audit its completed
than one year after the end of the audit pe-
satisfactorily,
riod unless a longer period is agreed to with
—Withholding or disallowing overhead costs,
the cognizant agency.
and
g. Recipients of more than $100,000 in Fed-
—Suspending the Federal assistance agree-
eral funds shall submit one copy of the audit
ment until the audit is made.
report within 30 days after issuance to a cen-
tral clearinghouse to be designated by the 18. Auditor Selection. In arranging for audit
Office of Management and Budget. The clear- services State and local governments shall
inghouse will keep completed audits on file follow the procurement standards prescribed
and follow up with State and local govern- by Attachment O of Circular A–102, ‘‘Uni-
ments that have not submitted required form requirements for grants to State and
audit reports. local governments.’’ The standards provide
h. Recipients shall keep audit reports on that while recipients are encouraged to enter
file for three years from their issuance. into intergovernmental agreements for audit
14. Audit Resolution. As provided in para- and other services, analysis should be made
graph 11, the cognizant agency shall be re- to determine whether it would be more eco-
sponsible for monitoring the resolution of nomical to purchase the services from pri-
audit findings that affect the programs of vate firms. In instances where use of such
more than one Federal agency. Resolution of intergovernmental agreements are required
findings that relate to the programs of a sin- by State statutes (e.g., audit services) these
gle Federal agency will be the responsibility statutes will take precedence.
of the recipient and that agency. Alternate 19. Small and Minority Audit Firms. Small
arrangements may be made on a case-by- audit firms and audit firms owned and con-
case basis by agreement among the agencies trolled by socially and economically dis-
concerned. advantaged individuals shall have the max-
Resolution shall be made within six imum practicable opportunity to participate
months after receipt of the report by the in contracts awarded to fulfill the require-
Federal departments and agencies. Correc- ments of this Circular. Recipients of Federal
tive action should proceed as rapidly as pos- assistance shall take the following steps to
sible. further this goal:
359
a. Assure that small audit firms and audit ATTACHMENT—CIRCULAR A–128
firms owned and controlled by socially and
economically disadvantaged individuals are Definition of Major Program as Provided in
used to the fullest extent practicable. Pub. L. 96–502
b. Make information on forthcoming op- Major Federal Assistance Program, for State
portunities available and arrange time- and local governments having Federal assist-
frames for the audit so as to encourage and ance expenditures between $100,000 and
facilitate participation by small audit firms $100,000,000, means any program for which
and audit firms owned and controlled by so- Federal expenditures during the applicable
cially and economically disadvantaged indi- year exceed the larger of $308,000, or 3 per-
viduals. cent of such total expenditures.
c. Consider in the contract process whether Where total expenditures of Federal assist-
firms competing for larger audits intend to ance exceed $100,000,000, the following cri-
subcontract with small audit firms and audit teria apply:
firms owned and controlled by socially and
economically disadvantaged individuals. Total expenditures of Federal financial Major Federal as-
d. Encourage contracting with small audit assistance for all programs sistance program
firms or audit firms owned and controlled by means any program
More than But less than that exceeds
socially and economically disadvantaged in-
dividuals which have traditionally audited $100 million .......... $1 billion ............. $3 million.
government programs and, in such cases $1 billion ............... $2 billion ............. $4 million.
where this is not possible, assure that these $2 billion ............... $3 billion ............. $7 million.
firms are given consideration for audit sub- $3 billion ............... $4 billion ............. $10 million.
$4 billion ............... $5 billion ............. $13 million.
contracting opportunities. $5 billion ............... $6 billion ............. $16 million.
e. Encourage contracting with consortiums $6 billion ............... $7 billion ............. $19 million.
of small audit firms as described in para- Over $7 billion ...... ............................. $20 million.
graph (a) above when a contract is too large
for an individual small audit firm or audit
firm owned and controlled by socially and [51 FR 6353, Feb. 21, 1986. Redesignated at 53
economically disadvantaged individuals. FR 8076, Mar. 11, 1988]
f. Use the services and assistance, as appro-
priate, of such organizations as the Small PART 32—GOVERNMENTWIDE DE-
Business Administration in the solicitation
and utilization of small audit firms or audit
BARMENT AND SUSPENSION
firms owned and controlled by socially and (NONPROCUREMENT) AND
economically disadvantaged individuals. GOVERNMENTWIDE REQUIRE-
20. Reporting. Each Federal agency will re- MENTS FOR DRUG-FREE WORK-
port to the Director of OMB on or before
March 1, 1987, and annually thereafter on the
PLACE (GRANTS); CLEAN AIR
effectiveness of State and local governments ACT AND CLEAN WATER ACT IN-
in carrying out the provisions of this Cir- ELIGIBILITY OF FACILITIES IN PER-
cular. The report must identify each State or FORMANCE OF FEDERAL CON-
local government or Indian tribe that, in the
opinion of the agency, is failing to comply
TRACTS, GRANTS AND LOANS
with the Circular.
21. Regulations. Each Federal agency shall Subpart A—General
include the provisions of this Circular in its
Sec.
regulations implementing the Single Audit
32.100 Purpose.
Act.
32.105 Definitions.
22. Effective date. This Circular is effective
32.110 Coverage.
upon publication and shall apply to fiscal
32.115 Policy.
years of State and local governments that
begin after December 31, 1984. Earlier imple-
Subpart B—Effect of Action
mentation is encouraged. However, until it is
implemented, the audit provisions of Attach- 32.200 Debarment or suspension.
ment P to Circular A–102 shall continue to be 32.205 Ineligible persons.
observed. 32.210 Voluntary exclusion.
23. Inquiries, All questions or inquiries 32.215 Exception provision.
should be addressed to Financial Manage- 32.220 Continuation of covered transactions.
ment Division, Office of Management and 32.225 Failure to adhere to restrictions.
Budget, telephone number 202/395–3993.
24. Sunset review date. This Circular shall Subpart C—Debarment
have an independent policy review to ascer-
tain its effectiveness three years from the 32.300 General.
date of issuance. 32.305 Causes for debarment.
DAVID A. STOCKMAN, 32.310 Procedures.
Director. 32.311 Investigation and referral.
360
32.312 Notice of proposed debarment. Subpart A—General
32.313 Opportunity to contest proposed de-
barment.
§ 32.100 Purpose.
32.314 Debarring official’s decision.
32.315 Settlement and voluntary exclusion. (a) Executive Order (E.O.) 12549 pro-
32.320 Period of debarment. vides that, to the extent permitted by
32.321 Reinstatement of facility eligibility. law, Executive departments and agen-
32.325 Scope of debarment.
32.335 Appeal. cies shall participate in a government-
wide system for nonprocurement debar-
Subpart D—Suspension ment and suspension. A person who is
debarred or suspended shall be excluded
32.400 General. from Federal financial and non-
32.405 Causes for suspension.
32.410 Procedures.
financial assistance and benefits under
32.411 Notice of suspension. Federal programs and activities. De-
32.412 Opportunity to contest suspension. barment or suspension of a participant
32.413 Suspending official’s decision. in a program by one agency shall have
32.415 Period of suspension. governmentwide effect.
32.420 Scope of suspension. (b) These regulations implement sec-
32.430 Appeal.
tion 3 of E.O. 12549 and the guidelines
Subpart E—Responsibilities of GSA, Agency promulgated by the Office of Manage-
and Participants ment and Budget under section 6 of the
E.O. by:
32.500 GSA responsibilities. (1) Prescribing the programs and ac-
32.505 EPA responsibilities. tivities that are covered by the govern-
32.510 Participants’ responsibilities.
mentwide system;
Subpart F—Drug-Free Workplace (2) Prescribing the governmentwide
Requirements (Grants) criteria and governmentwide minimum
due process procedures that each agen-
32.600 Purpose. cy shall use;
32.605 Definitions.
32.610 Coverage. (3) Providing for the listing of
32.615 Grounds for suspension of payments, debarred and suspended participants,
suspension or termination of grants, or participants declared ineligible (see
suspension or debarment. definition of ‘‘ineligible’’ in § 32.105),
32.620 Effect of violation. and participants who have voluntarily
32.625 Exception provision. excluded themselves from participation
32.630 Certification requirements and proce- in covered transactions;
dures.
32.635 Reporting of and employee sanctions (4) Setting forth the consequences of
for convictions of criminal drug offenses. a debarment, suspension, determina-
APPENDIX A TO PART 32—CERTIFICATION RE- tion of ineligibility, or voluntary ex-
GARDING DEBARMENT, SUSPENSION, AND clusion; and
OTHER RESPONSIBILITY MATTERS—PRI- (5) Offering such other guidance as
MARY COVERED TRANSACTIONS necessary for the effective implementa-
APPENDIX B TO PART 32—CERTIFICATION RE- tion and administration of the govern-
GARDING DEBARMENT, SUSPENSION, INELI-
mentwide system.
GIBILITY AND VOLUNTARY EXCLUSION—
LOWER TIER COVERED TRANSACTIONS (c) These regulations also implement
APPENDIX C TO PART 32—CERTIFICATION RE- Executive Order 12689 (3 CFR, 1989
GARDING DRUG-FREE WORKPLACE RE- Comp., p. 235) and 31 U.S.C. 6101 note
QUIREMENTS (Public Law 103–355, sec. 2455, 108 Stat.
AUTHORITY: E.O. 12549; 41 U.S.C. 701 et seq.; 3327) by—
7 U.S.C. 136 et seq.; 15 U.S.C. 2601 et seq.; 20 (1) Providing for the inclusion in the
U.S.C. 4011 et seq.; 33 U.S.C. 1251 et seq.; 42 List of Parties Excluded from Federal Pro-
U.S.C. 300f, 4901, 6901, 7401, 9801 et seq.; E.O. curement and Nonprocurement Programs
12689; E.O. 11738; Pub. L. 103–355 § 2455. all persons proposed for debarment,
SOURCE: 53 FR 19196, 19204, May 26, 1988, un- debarred or suspended under the Fed-
less otherwise noted. eral Acquisition Regulation, 48 CFR
CROSS REFERENCE: See also Office of Man- part 9, subpart 9.4; persons against
agement and Budget notice published at 55 which governmentwide exclusions have
FR 21679, May 25, 1990, and at 60 FR 33036, been entered under this part; and per-
June 26, 1995. sons determined to be ineligible; and
361
§ 32.105 40 CFR Ch. I (7–1–00 Edition)
(2) Setting forth the consequences of performance of a Federal contract, sub-

a debarment, suspension, determina- contract, loan, assistance award or
tion of ineligibility, or voluntary ex- covered transaction. Such ineligibility
clusion. commences upon conviction of a facil-
(d) Although these regulations cover ity owner, lessee, or supervisor for a
the listing of ineligible participants violation of section 113 of the CAA or
and the effect of such listing, they do section 309(c) of the CWA, which viola-
not prescribe policies and procedures tion occurred at the facility. The ineli-
governing declarations of ineligibility. gibility of the facility continues until
(e) Facilities ineligible to provide such time as the EPA Debarring Offi-
goods, materials, or services under cial certifies that the condition giving
Federal contracts, loans or assistance, rise to the CAA or CWA criminal con-
pursuant to Section 306 of the Clean viction has been corrected.
Air Act (CAA) or Section 508 of the Civil judgment. The disposition of a
Clean Water Act (CWA) are excluded in civil action by any court of competent
accordance with the terms of those jurisdiction, whether entered by ver-
statutes. Reinstatement of a CAA or
dict, decision, settlement, stipulation,
CWA ineligible facility may be re-
or otherwise creating a civil liability
quested in accordance with the proce-
for the wrongful acts complained of; or
dures at § 32.321.
a final determination of liability under
[60 FR 33040, 33059, June 26, 1995, as amended the Program Fraud Civil Remedies Act
at 61 FR 28756, June 6, 1996] of 1988 (31 U.S.C. 3801–12).
Conviction. A judgment of conviction
of a criminal offense by any court of
The following definitions apply to competent jurisdiction, whether en-
this part: tered upon a verdict or a plea, includ-
Adequate evidence. Information suffi- ing a plea of nolo contendere.
cient to support the reasonable belief Debarment. An action taken by a de-
that a particular act or omission has barring official in accordance with
occurred. these regulations to exclude a person
Affiliate. Persons are affiliates of from participating in covered trans-
each other if, directly or indirectly, ei- actions. A person so excluded is
ther one controls or has the power to ‘‘debarred.’’
control the other, or, a third person
Debarring official. An official author-
controls or has the power to control
ized to impose debarment. The debar-
both. Indicia of control include, but are
ring official is either:
not limited to: interlocking manage-
ment or ownership, identity of inter- (1) The agency head, or
ests among family members, shared fa- (2) An official designated by the
cilities and equipment, common use of agency head.
employees, or a business entity orga- EPA. Environmental Protection
nized following the suspension or de- Agency.
barment of a person which has the Facility. Any building, plant, installa-
same or similar management, owner- tion, structure, mine, vessel, floating
ship, or principal employees as the sus- craft, location or site of operations at
pended, debarred, ineligible, or volun- which, or from which, a Federal con-
tarily excluded person. tract, subcontract, loan, assistance
Agency. Any executive department, award or covered transaction is to be
military department or defense agency performed. Where a location or site of
or other agency of the executive operations contains or includes more
branch, excluding the independent reg- than one building, plant, installation
ulatory agencies. or structure, the entire location or site
Agency head. Administrator of the shall be deemed the facility unless oth-
Environmental Protection Agency. erwise limited by EPA.
CAA or CWA ineligibility. The status Indictment. Indictment for a criminal
of a facility which, as provided in sec- offense. An information or other filing
tion 306 of the Clean Air Act (CAA) and by competent authority charging a
section 508 of the Clean Water Act criminal offense shall be given the
(CWA), is ineligible to be used in the same effect as an indictment.
362
Ineligible. Excluded from participa- Person. Any individual, corporation,

tion in Federal nonprocurement pro- partnership, association, unit of gov-
grams pursuant to a determination of ernment or legal entity, however orga-
ineligibility under statutory, executive nized, except: foreign governments or
order, or regulatory authority, other foreign governmental entities, public
than Executive Order 12549 and its international organizations, foreign
agency implementing regulations; for government owned (in whole or in part)
exemple, excluded pursuant to the or controlled entities, and entities con-
Davis-Bacon Act and its implementing sisting wholly or partially of foreign
regulations, the equal employment op- governments or foreign governmental
portunity acts and executive orders, or entities.
the environmental protection acts and Preponderance of the evidence. Proof
executive orders. A person is ineligible by information that, compared with
where the determination of ineligi- that opposing it, leads to the conclu-
bility affects such person’s eligibility sion that the fact at issue is more prob-
to participate in more than one cov- ably true than not.
ered transaction. Principal. Officer, director, owner,
Legal proceedings. Any criminal pro- partner, key employee, or other person
ceeding or any civil judicial proceeding within a participant with primary
to which the Federal Government or a management or supervisory respon-
State or local government or quasi- sibilities; or a person who has a critical
governmental authority is a party. The influence on or substantive control
term includes appeals from such pro- over a covered transaction, whether or
ceedings. not employed by the participant. Per-
List of Parties Excluded from Federal sons who have a critical influence on or
Procurement and Nonprocurement Pro- substantive control over a covered
grams. A list compiled, maintained and transaction are:
distributed by the General Services Ad-
(1) Principal investigators.
ministration (GSA) containing the
(2) Bid and proposal estimators and
names and other information about
preparers.
persons who have been debarred, sus-
pended, or voluntarily excluded under Proposal. A solicited or unsolicited
Executive Orders 12549 and 12689 and bid, application, request, invitation to
these regulations or 48 CFR part 9, sub- consider or similar communication by
part 9.4, persons who have been pro- or on behalf of a person seeking to par-
posed for debarment under 48 CFR part ticipate or to receive a benefit, directly
9, subpart 9.4, and those persons who or indirectly, in or under a covered
have been determined to be ineligible. transaction.
Notice. A written communication Respondent. A person against whom a
served in person or sent by certified debarment or suspension action has
mail, return receipt requested, or its been initiated.
equivalent, to the last known address State. Any of the States of the United
of a party, its identified counsel, its States, the District of Columbia, the
agent for service of process, or any Commonwealth of Puerto Rico, any
partner, officer, director, owner, or territory or possession of the United
joint venturer of the party. Notice, if States, or any agency of a State, exclu-
undeliverable, shall be considered to sive of institutions of higher education,
have been received by the addressee hospitals, and units of local govern-
five days after being properly sent to ment. A State instrumentality will be
the last address known by the agency. considered part of the State govern-
Participant. Any person who submits ment if it has a written determination
a proposal for, enters into, or reason- from a State government that such
ably may be expected to enter into a State considers that instrumentality
covered transaction. This term also in- to be an agency of the State govern-
cludes any person who acts on behalf of ment.
or is authorized to commit a partici- Suspending official. An official au-
pant in a covered transaction as an thorized to impose suspension. The sus-
agent or representative of another par- pending official is either:
ticipant. (1) The agency head, or
363
§ 32.110 40 CFR Ch. I (7–1–00 Edition)
(2) An official designated by the (A) Any transaction between a par-

agency head. ticipant and a person other than a pro-
Suspension. An action taken by a sus- curement contract for goods or serv-
pending official in accordance with ices, regardless of type, under a pri-
these regulations that immediately ex- mary covered transaction.
cludes a person from participating in (B) Any procurement contract for
covered transactions for a temporary goods or services between a participant
period, pending completion of an inves- and a person, regardless of type, ex-
tigation and such legal, debarment, or pected to equal or exceed the Federal
Program Fraud Civil Remedies Act procurement small purchase threshold
proceedings as may ensue. A person so fixed at 10 U.S.C. 2304(g) and 41 U.S.C.
excluded is ‘‘suspended.’’ 253(g) (currently $25,000) under a pri-
Voluntary exclusion or voluntarily ex- mary covered transaction.
cluded. A status of nonparticipation or (C) Any procurement contract for
limited participation in covered trans- goods or services between a participant
actions assumed by a person pursuant and a person under a covered trans-
to the terms of a settlement. action, regardless of amount, under
[53 FR 19196, 19204, May 26, 1988, as amended which that person will have a critical
at 53 FR 19196, May 26, 1988; 59 FR 50692, Oct. influence on or substantive control
5, 1994; 60 FR 33040, 33059, June 26, 1995; 61 FR over that covered transaction. Such
28756, June 6, 1996; 62 FR 47149, Sept. 8, 1997] persons are:
(1) Principal investigators.
§ 32.110 Coverage.
(2) Providers of federally-required
(a) These regulations apply to all per- audit services.
sons who have participated, are cur- (2) Exceptions. The following trans-
rently participating or may reasonably actions are not covered:
be expected to participate in trans- (i) Statutory entitlements or manda-
actions under Federal nonprocurement tory awards (but not subtier awards
programs. For purposes of these regula- thereunder which are not themselves
tions such transactions will be referred mandatory), including deposited funds
to as ‘‘covered transactions.’’ insured by the Federal Government;
(1) Covered transaction. For purposes
(ii) Direct awards to foreign govern-
of these regulations, a covered trans-
ments or public international organiza-
action is a primary covered transaction
tions, or transactions with foreign gov-
or a lower tier covered transaction.
ernments or foreign governmental en-
Covered transactions at any tier need
tities, public international organiza-
not involve the transfer of Federal
tions, foreign government owned (in
funds.
whole or in part) or controlled entities,
(i) Primary covered transaction. Except
entities consisting wholly or partially
as noted in paragraph (a)(2) of this sec-
of foreign governments or foreign gov-
tion, a primary covered transaction is
ernmental entities;
any nonprocurement transaction be-
tween an agency and a person, regard- (iii) Benefits to an individual as a
less of type, including: grants, coopera- personal entitlement without regard to
tive agreements, scholarships, fellow- the individual’s present responsibility
ships, contracts of assistance, loans, (but benefits received in an individual’s
loan guarantees, subsidies, insurance, business capacity are not excepted);
payments for specified use, donation (iv) Federal employment;
agreements and any other nonprocure- (A) For the purpose of this para-
ment transactions between a Federal graph, no transactions under EPA as-
agency and a person. Primary covered sistance programs are deemed to be
transactions also include those trans- pursuant to agency-recognized emer-
actions specially designated by the gencies or disasters.
U.S. Department of Housing and Urban (B) [Reserved]
Development in such agency’s regula- (v) Transactions pursuant to national
tions governing debarment and suspen- or agency-recognized emergencies or
sion. disasters;
(ii) Lower tier covered transaction. A (vi) Incidental benefits derived from
lower tier covered transaction is: ordinary governmental operations; and
364
(vii) Other transactions where the ap- Executive Order 12549 and these regula-
plication of these regulations would be tions, are appropriate means to imple-
prohibited by law. ment this policy.
(b) Relationship to other sections. This (b) Debarment and suspension are se-
section describes the types of trans- rious actions which shall be used only
actions to which a debarment or sus- in the public interest and for the Fed-
pension under the regulations will eral Government’s protection and not
apply. Subpart B, ‘‘Effect of Action,’’ for purposes of punishment. Agencies
§ 32.200, ‘‘Debarment or suspension,’’ may impose debarment or suspension
sets forth the consequences of a debar- for the causes and in accordance with
ment or suspension. Those con- the procedures set forth in these regu-
sequences would obtain only with relations.
spect to participants and principals in (c) When more than one agency has
the covered transactions and activities an interest in the proposed debarment
described in § 32.110(a). Sections 32.325, or suspension of a person, consider-
‘‘Scope of debarment,’’ and 32.420, ation shall be given to designating one
‘‘Scope of suspension,’’ govern the ex- agency as the lead agency for making
tent to which a specific participant or the decision. Agencies are encouraged
organizational elements of a partici- to establish methods and procedures
pant would be automatically included for coordinating their debarment or
within a debarment or suspension ac- suspension actions.
tion, and the conditions under which (d) It is EPA policy to exercise its au-
affiliates or persons associated with a thority to reinstate CAA or CWA ineli-
participant may also be brought within gible facilities in a manner which is
the scope of the action. consistent with the policies in para-
(c) Relationship to Federal procurement graphs (a) and (b) of this section.
activities. In accordance with E.O. 12689
and section 2455 of Public Law 103–355, [53 FR 19196, 19204, May 26, 1988, as amended
any debarment, suspension, proposed at 53 FR 19197, May 26, 1988; 61 FR 28757, June
debarment or other governmentwide 6, 1996]
exclusion initiated under the Federal
Acquisition Regulation (FAR) on or Subpart B—Effect of Action
after August 25, 1995 shall be recog-
nized by and effective for Executive § 32.200 Debarment or suspension.
Branch agencies and participants as an (a) Primary covered transactions. Ex-
exclusion under this regulation. Simi- cept to the extent prohibited by law,
larly, any debarment, suspension or persons who are debarred or suspended
other governmentwide exclusion initi- shall be excluded from primary covered
ated under this regulation on or after transactions as either participants or
August 25, 1995 shall be recognized by principals throughout the Executive
and effective for those agencies as a de- Branch of the Federal Government for
barment or suspension under the FAR. the period of their debarment, suspen-
(d) Except as provided in § 32.215 of sion, or the period they are proposed
this part, Federal agencies shall not for debarment under 48 CFR part 9,
use a CAA or CWA ineligible facility in subpart 9.4. Accordingly, no agency
the performance of any Federal con- shall enter into primary covered trans-
tract, subcontract, loan, assistance actions with such excluded persons
award or covered transaction. during such period, except as permitted
[53 FR 19196, 19204, May 26, 1988, as amended pursuant to § 32.215.
at 53 FR 19197, May 26, 1988; 60 FR 33041, (b) Lower tier covered transactions. Ex-
33059, June 26, 1995; 61 FR 28757, June 6, 1996] cept to the extent prohibited by law,
persons who have been proposed for de-
§ 32.115 Policy. barment under 48 CFR part 9, subpart
(a) In order to protect the public in- 9.4, debarred or suspended shall be ex-
terest, it is the policy of the Federal cluded from participating as either
Government to conduct business only participants or principals in all lower
with responsible persons. Debarment tier covered transactions (see
and suspension are discretionary ac- § 32.110(a)(1)(ii)) for the period of their
tions that, taken in accordance with exclusion.
365
§ 32.205 40 CFR Ch. I (7–1–00 Edition)
(c) Exceptions. Debarment or suspen- the reason(s) for deviating from the
sion does not affect a person’s eligi- Presidential policy established by Ex-
bility for— ecutive Order 12549 and § 32.200. How-
(1) Statutory entitlements or manda- ever, in accordance with the Presi-
tory awards (but not subtier awards dent’s stated intention in the Execu-
thereunder which are not themselves tive Order, exceptions shall be granted
mandatory), including deposited funds only infrequently. Exceptions shall be
insured by the Federal Government; reported in accordance with § 32.505(a).
(2) Direct awards to foreign govern- (b) Any agency head, or authorized
ments or public international organiza- designee, may except any Federal con-
tions, or transactions with foreign gov- tract, subcontract, loan, assistance
ernments or foreign governmental en- award or covered transaction, individ-
tities, public international organiza- ually or as a class, in whole or in part,
tions, foreign government owned (in from the prohibitions otherwise appli-
whole or in part) or controlled entities, cable by reason of a CAA or CWA ineli-
and entities consisting wholly or par- gibility. The agency head granting the
tially of foreign governments or for- exception shall notify the EPA Debar-
eign governmental entities; ring Official of the exception as soon,
(3) Benefits to an individual as a per- before or after granting the exception,
sonal entitlement without regard to as may be practicable. The justifica-
the individual’s present responsibility tion for such an exception, or any re-
(but benefits received in an individual’s newal thereof, shall fully describe the
business capacity are not excepted); purpose of the contract or covered
(4) Federal employment; transaction, and show why the para-
(5) Transactions pursuant to national mount interest of the United States re-
or agency-recognized emergencies or quires the exception.
disasters; (c) The EPA Debarring Official is the
(6) Incidental benefits derived from official authorized to grant exceptions
ordinary governmental operations; and under this section for EPA.
(7) Other transactions where the ap- [61 FR 28757, June 6, 1996]
plication of these regulations would be
prohibited by law. § 32.220 Continuation of covered trans-
[60 FR 33041, 33059, June 26, 1995]
actions.
(a) Notwithstanding the debarment,
§ 32.205 Ineligible persons. suspension, proposed debarment under
Persons who are ineligible, as defined 48 CFR part 9, subpart 9.4, determina-
in § 32.105(i), are excluded in accordance tion of ineligibility, or voluntary ex-
with the applicable statutory, execu- clusion of any person by an agency,
tive order, or regulatory authority. agencies and participants may con-
tinue covered transactions in existence
§ 32.210 Voluntary exclusion. at the time the person was debarred,
Persons who accept voluntary exclu- suspended, proposed for debarment
sions under § 32.315 are excluded in ac- under 48 CFR part 9, subpart 9.4, de-
cordance with the terms of their settle- clared ineligible, or voluntarily ex-
ments. EPA shall, and participants cluded. A decision as to the type of ter-
may, contact the original action agen- mination action, if any, to be taken
cy to ascertain the extent of the exclu- should be made only after thorough re-
sion. view to ensure the propriety of the pro-
posed action.
§ 32.215 Exception provision. (b) Agencies and participants shall
not renew or extend covered trans-
(a) EPA may grant an exception per-
actions (other than no-cost time exten-
mitting a debarred, suspended, or vol-
sions) with any person who is debarred,
untarily excluded person, or a person
suspended, proposed for debarment
proposed for debarment under 48 CFR
under 48 CFR part 9, subpart 9.4, ineli-
part 9, subpart 9.4, to participate in a
gible or voluntary excluded, except as
particular covered transaction upon a
provided in § 32.215.
written determination by the agency
head or an authorized designee stating [60 FR 33041, 33059, June 26, 1995]
366
§ 32.225 Failure to adhere to restric- public or private agreement or trans-

tions. action;
(a) Except as permitted under § 32.215 (2) Violation of Federal or State anti-
or § 32.220, a participant shall not trust statutes, including those pro-
knowingly do business under a covered scribing price fixing between competi-
transaction with a person who is— tors, allocation of customers between
(1) Debarred or suspended; competitors, and bid rigging;
(2) Proposed for debarment under 48 (3) Commission of embezzlement,
CFR part 9, subpart 9.4; or theft, forgery, bribery, falsification or
(3) Ineligible for or voluntarily ex- destruction of records, making false
cluded from the covered transaction. statements, receiving stolen property,
(b) Violation of the restriction under making false claims, or obstruction of
paragraph (a) of this section may re- justice; or
sult in disallowance of costs, annul- (4) Commission of any other offense
ment or termination of award, issuance indicating a lack of business integrity
of a stop work order, debarment or sus- or business honesty that seriously and
pension, or other remedies as appro- directly affects the present responsi-
priate. bility of a person.
(c) A participant may rely upon the (b) Violation of the terms of a public
certification of a prospective partici- agreement or transaction so serious as
pant in a lower tier covered trans- to affect the integrity of an agency
action that it and its principals are not program, such as:
debarred, suspended, proposed for de-
(1) A willful failure to perform in ac-
barment under 48 CFR part 9, subpart
9.4, ineligible, or voluntarily excluded cordance with the terms of one or more
from the covered transaction (See ap- public agreements or transactions;
pendix B of these regulations), unless it (2) A history of failure to perform or
knows that the certification is erro- of unsatisfactory performance of one or
neous. An agency has the burden of more public agreements or trans-
proof that a participant did knowingly actions; or
do business with a person that filed an (3) A willful violation of a statutory
erroneous certification. or regulatory provision or requirement
applicable to a public agreement or
[60 FR 33041, 33059, June 26, 1995]
transaction.
(c) Any of the following causes:
Subpart C—Debarment (1) A nonprocurement debarment by
§ 32.300 General. any Federal agency taken before Octo-
ber 1, 1988, the effective date of these
The debarring official may debar a regulations, or a procurement debar-
person for any of the causes in § 32.305, ment by any Federal agency taken pur-
using procedures established in §§ 32.310
suant to 48 CFR subpart 9.4;
through 32.314. The existence of a cause
(2) Knowingly doing business with a
for debarment, however, does not nec-
essarily require that the person be debarred, suspended, ineligible, or vol-
debarred; the seriousness of the per- untarily excluded person, in connection
son’s acts or omissions and any miti- with a covered transaction, except as
gating factors shall be considered in permitted in §§ 32.215 or 32.220;
making any debarment decision. (3) Failure to pay a single substantial
debt, or a number of outstanding debts
§ 32.305 Causes for debarment. (including disallowed costs and over-
Debarment may be imposed in ac- payments, but not including sums owed
cordance with the provisions of §§ 32.300 the Federal Government under the In-
through 32.314 for: ternal Revenue Code) owed to any Fed-
(a) Conviction of or civil judgment eral agency or instrumentality, pro-
for: vided the debt is uncontested by the
(1) Commission of fraud or a criminal debtor or, if contested, provided that
offense in connection with obtaining, the debtor’s legal and administrative
attempting to obtain, or performing a remedies have been exhausted;
367
§ 32.310 40 CFR Ch. I (7–1–00 Edition)
(4) Violation of a material provision and argument in opposition to the pro-

of a voluntary exclusion agreement en- posed debarment.
tered into under § 32.315 or of any set- (1) If the respondent desires a hear-
tlement of a debarment or suspension ing, it shall submit a written request
action; or to the debarring official within the 30-
(5) Violation of any requirement of day period following receipt of the no-
subpart F of this part, relating to pro- tice of proposed debarment.
viding a drug-free workplace, as set (2) [Reserved]
forth in § 32.615 of this part. (b) Additional proceedings as to dis-
(d) Any other cause of so serious or puted material facts. (1) In actions not
compelling a nature that it affects the based upon a conviction or civil judg-
present responsibility of a person. ment, if the debarring official finds
[53 FR 19196, 19204, May 26, 1988, as amended
that the respondent’s submission in op-
at 54 FR 4962, Jan. 31, 1989] position raises a genuine dispute over
facts material to the proposed debar-
§ 32.310 Procedures. ment, respondent(s) shall be afforded
EPA shall process debarment actions an opportunity to appear with a rep-
as informally as practicable, consistent resentative, submit documentary evi-
with the principles of fundamental dence, present witnesses, and confront
fairness, using the procedures in any witness the agency presents.
§§ 32.311 through 32.314. (2) A transcribed record of any addi-
tional proceedings shall be made avail-
§ 32.311 Investigation and referral. able at cost to the respondent, upon re-
quest, unless the respondent and the
Information concerning the existence
agency, by mutual agreement, waive
of a cause for debarment from any
the requirement for a transcript.
source shall be promptly reported, in-
vestigated, and referred, when appro- [53 FR 19196, 19204, May 26, 1988, as amended
priate, to the debarring official for con- at 53 FR 19197, May 26, 1988]
sideration. After consideration, the de-
§ 32.314 Debarring official’s decision.
barring official may issue a notice of
proposed debarment. (a) No additional proceedings necessary.
In actions based upon a conviction or
§ 32.312 Notice of proposed debarment. civil judgment, or in which there is no
A debarment proceeding shall be ini- genuine dispute over material facts,
tiated by notice to the respondent the debarring official shall make a de-
advising: cision on the basis of all the informa-
(a) That debarment is being con- tion in the administrative record, in-
sidered; cluding any submission made by the re-
(b) Of the reasons for the proposed spondent. The decision shall be made
debarment in terms sufficient to put within 45 days after receipt of any in-
the respondent on notice of the con- formation and argument submitted by
duct or transaction(s) upon which it is the respondent, unless the debarring
based; official extends this period for good
(c) Of the cause(s) relied upon under cause.
§ 32.305 for proposing debarment; (b) Additional proceedings necessary.
(d) Of the provisions of § 32.311 (1) In actions in which additional pro-
through § 32.314, and any other EPA ceedings are necessary to determine
procedures, if applicable, governing de- disputed material facts, written find-
barment decisionmaking; and ings of fact shall be prepared. The de-
(e) Of the potential effect of a debar- barring official shall base the decision
ment. on the facts as found, together with
any information and argument sub-
§ 32.313 Opportunity to contest pro- mitted by the respondent and any
posed debarment. other information in the administra-
(a) Submission in opposition. Within 30 tive record.
days after receipt of the notice of pro- (2) The debarring official may refer
posed debarment, the respondent may disputed material facts to another offi-
submit, in person, in writing, or cial for findings of fact. The debarring
through a representative, information official may reject any such findings,
368
in whole or in part, only after specifi- sponsibility, as well as any other mat-
cally determining them to be arbitrary ter regarding the conditions giving rise
and capricious or clearly erroneous. to alleged CAA or CWA violations in
(3) The debarring official’s decision anticipation of entry of a plea, judg-
shall be made after the conclusion of ment or conviction. If, at any time, it
the proceedings with respect to dis- is in the interest of the United States
puted facts. to conclude such matters pursuant to a
(c)(1) Standard of proof. In any debar- comprehensive settlement agreement,
ment action, the cause for debarment the EPA Debarring Official may con-
must be established by a preponderance clude the debarment and ineligibility
of the evidence. Where the proposed de- matters as part of any such settlement,
barment is based upon a conviction or so long as he or she certifies that the
civil judgment, the standard shall be condition giving rise to the CAA or
deemed to have been met. CWA violation has been corrected.
(2) Burden of proof. The burden of
[53 FR 19196, 19204, May 26, 1988, as amended
proof is on the agency proposing debar-
at 53 FR 19197, May 26, 1988; 61 FR 28757, June
ment. 6, 1996]
(d) Notice of debarring official’s deci-
sion. (1) If the debarring official decides § 32.320 Period of debarment.
to impose debarment, the respondent
shall be given prompt notice: (a) Debarment shall be for a period
(i) Referring to the notice of proposed commensurate with the seriousness of
debarment; the cause(s). If a suspension precedes a
(ii) Specifying the reasons for debar- debarment, the suspension period shall
ment; be considered in determining the de-
(iii) Stating the period of debarment, barment period.
including effective dates; and (1) Debarment for causes other than
(iv) Advising that the debarment is those related to a violation of the re-
effective for covered transactions quirements of subpart F of this part
throughout the executive branch of the generally should not exceed three
Federal Government unless an agency years. Where circumstances warrant, a
head or an authorized designee makes longer period of debarment may be im-
the determination referred to in posed.
§ 32.215. (2) In the case of a debarment for a
(2) If the debarring official decides violation of the requirements of sub-
not to impose debarment, the respond- part F of this part (see § 32.305(c)(5)),
ent shall be given prompt notice of the period of debarment shall not ex-
that decision. A decision not to impose ceed five years.
debarment shall be without prejudice (b) The debarring official may extend
to a subsequent imposition of debar- an existing debarment for an addi-
ment by any other agency. tional period, if that official deter-
mines that an extension is necessary to
§ 32.315 Settlement and voluntary ex- protect the public interest. However, a
clusion. debarment may not be extended solely
(a) When in the best interest of the on the basis of the facts and cir-
Government, EPA may, at any time, cumstances upon which the initial de-
settle a debarment or suspension ac- barment action was based. If debar-
tion. ment for an additional period is deter-
(1) The debarring and suspending offi- mined to be necessary, the procedures
cial is the official authorized to settle of §§ 32.311 through 32.314 shall be fol-
debarment or suspension actions. lowed to extend the debarment.
(2) [Reserved] (c) The respondent may request the
(b) If a participant and the agency debarring official to reverse the debar-
agree to a voluntary exclusion of the ment decision or to reduce the period
participant, such voluntary exclusion or scope of debarment. Such a request
shall be entered on the Nonpro- shall be in writing and supported by
curement List (see subpart E). documentation. The debarring official
(c) The EPA Debarring Official may may grant such a request for reasons
consider matters regarding present re- including, but not limited to:
369
§ 32.321 40 CFR Ch. I (7–1–00 Edition)
(1) Newly discovered material evi- (1) Conduct imputed to participant. The
dence; fraudulent, criminal or other seriously
(2) Reversal of the conviction or civil improper conduct of any officer, direc-
judgment upon which the debarment tor, shareholder, partner, employee, or
was based; other individual associated with a par-
(3) Bona fide change in ownership or ticipant may be imputed to the partici-
management; pant when the conduct occurred in con-
(4) Elimination of other causes for nection with the individual’s perform-
which the debarment was imposed; or ance of duties for or on behalf of the
(5) Other reasons the debarring offi- participant, or with the participant’s
cial deems appropriate. knowledge, approval, or acquiescence.
The participant’s acceptance of the
[53 FR 19196, 19204, May 26, 1988, as amended benefits derived from the conduct shall
at 54 FR 4962, Jan. 31, 1989] be evidence of such knowledge, ap-
proval, or acquiescence.
§ 32.321 Reinstatement of facility eligi-
bility. (2) Conduct imputed to individuals asso-
ciated with participant. The fraudulent,
(a) A written petition to reinstate criminal, or other seriously improper
the eligibility of a CAA or CWA ineli- conduct of a participant may be im-
gible facility may be submitted to the puted to any officer, director, share-
EPA Debarring Official. The petitioner holder, partner, employee, or other in-
bears the burden of providing sufficient dividual associated with the partici-
information and documentation to es- pant who participated in, knew of, or
tablish, by a preponderance of the evi- had reason to know of the participant’s
dence, that the condition giving rise to conduct.
the CAA or CWA conviction has been
(3) Conduct of one participant imputed
corrected. If the material facts set
to other participants in a joint venture.
forth in the petition are disputed, and
The fraudulent, criminal, or other seri-
the Debarring Official denies the peti-
ously improper conduct of one partici-
tion, the petitioner shall be afforded
pant in a joint venture, grant pursuant
the opportunity to have additional pro-
to a joint application, or similar ar-
ceedings as provided in § 32.314(b).
rangement may be imputed to other
(b) A decision by the EPA Debarring
participants if the conduct occurred for
Official denying a petition for rein-
or on behalf of the joint venture, grant
statement may be appealed under
pursuant to a joint application, or
§ 32.335.
similar arrangement may be imputed
[61 FR 28757, June 6, 1996] to other participants if the conduct oc-
curred for or on behalf of the joint ven-
§ 32.325 Scope of debarment. ture, grant pursuant to a joint applica-
(a) Scope in general. (1) Debarment of tion, or similar arrangement or with
a person under these regulations con- the knowledge, approval, or acquies-
stitutes debarment of all its divisions cence of these participants. Acceptance
and other organizational elements of the benefits derived from the con-
from all covered transactions, unless duct shall be evidence of such knowl-
the debarment decision is limited by edge, approval, or acquiescence.
its terms to one or more specifically
identified individuals, divisions or § 32.335 Appeal.
other organizational elements or to (a) The debarment determination
specific types of transactions. under § 32.314 shall be final. However,
(2) The debarment action may in- any party to the action may request
clude any affiliate of the participant the Director, Office of Grants and De-
that is specifically named and given barment (OGD Director), to review the
notice of the proposed debarment and findings of the Debarring Official by
an opportunity to respond (see §§ 32.311 filing a request with the OGD Director
through 32.314). within 30 calendar days of the party’s
(b) Imputing conduct. For purposes of receipt of the debarment determina-
determining the scope of debarment, tion, or its reconsideration. The re-
conduct may be imputed as follows: quest must be in writing and set forth
370
the specific reasons why relief should § 32.405 Causes for suspension.
be granted.
(a) Suspension may be imposed in ac-
(b) A review under this section shall cordance with the provisions of §§ 32.400
be at the discretion of the OGD Direc- through 32.413 upon adequate evidence:
tor. If a review is granted, the debar- (1) To suspect the commission of an
ring official may stay the effective offense listed in § 32.305(a); or
date of a debarment order pending res- (2) That a cause for debarment under
olution of the appeal. If a debarment is § 32.305 may exist.
stayed, the stay shall be automatically (b) Indictment shall constitute ade-
lifted if the OGD Director affirms the quate evidence for purposes of suspen-
debarment. sion actions.
(c) The review shall be based solely
upon the record. The OGD Director § 32.410 Procedures.
may set aside a determination only if (a) Investigation and referral. Informa-
it is found to be arbitrary, capricious, tion concerning the existence of a
and abuse of discretion, or based upon cause for suspension from any source
a clear error of law. shall be promptly reported, inves-
(d) The OGD Director’s subsequent tigated, and referred, when appro-
determination shall be in writing and priate, to the suspending official for
mailed to all parties. consideration. After consideration, the
(e) A determination under § 32.314 or a suspending official may issue a notice
review under this section shall not be of suspension.
subject to a dispute or a bid protest (b) Decisionmaking process. EPA shall
under parts 30, 31 or 33 of this sub- process suspension actions as infor-
chapter. mally as practicable, consistent with
principles of fundamental fairness,
[53 FR 19197, May 26, 1988, as amended at 59
using the procedures in § 32.411 through
FR 50693, Oct. 5, 1994; 62 FR 47149, Sept. 8,
§ 32.413.
1997]
§ 32.411 Notice of suspension.
Subpart D—Suspension When a respondent is suspended, no-
§ 32.400 General. tice shall immediately be given:
(a) That suspension has been im-
(a) The suspending official may sus- posed;
pend a person for any of the causes in (b) That the suspension is based on
§ 32.405 using procedures established in an indictment, conviction, or other
§§ 32.410 through 32.413. adequate evidence that the respondent
(b) Suspension is a serious action to has committed irregularities seriously
be imposed only when: reflecting on the propriety of further
(1) There exists adequate evidence of Federal Government dealings with the
one or more of the causes set out in respondent;
§ 32.405, and (c) Describing any such irregularities
(2) Immediate action is necessary to in terms sufficient to put the respond-
protect the public interest. ent on notice without disclosing the
(c) In assessing the adequacy of the Federal Government’s evidence;
evidence, the agency should consider (d) Of the cause(s) relied upon under
how much information is available, § 32.405 for imposing suspension;
how credible it is given the cir- (e) That the suspension is for a tem-
cumstances, whether or not important porary period pending the completion
allegations are corroborated, and what of an investigation or ensuing legal, de-
inferences can reasonably be drawn as barment, or Program Fraud Civil Rem-
a result. This assessment should in- edies Act proceedings;
clude an examination of basic docu- (f) Of the provisions of § 32.411
ments such as grants, cooperative through § 32.413 and any other EPA pro-
agreements, loan authorizations, and cedures, if applicable, governing sus-
pension decisionmaking; and
contracts.
(g) Of the effect of the suspension.
371
§ 32.412 40 CFR Ch. I (7–1–00 Edition)
§ 32.412 Opportunity to contest sus- (a) No additional proceedings necessary.

pension. In actions: based on an indictment,
(a) Submission in opposition. Within 30 conviction, or civil judgment; in which
there is no genuine dispute over mate-
days after receipt of the notice of sus-
rial facts; or in which additional pro-
pension, the respondent may submit, in
ceedings to determine disputed mate-
person, in writing, or through a rep-
rial facts have been denied on the basis
resentative, information and argument
of Department of Justice advice, the
in opposition to the suspension.
suspending official shall make a deci-
(1) If the respondent desires a hear- sion on the basis of all the information
ing, it shall submit a written request in the administrative record, including
to the suspending official within the 30- any submission made by the respond-
day period following receipt of the no- ent. The decision shall be made within
tice of suspension. 45 days after receipt of any information
(2) [Reserved] and argument submitted by the re-
(b) Additional proceedings as to dis- spondent, unless the suspending official
puted material facts. (1) If the sus- extends this period for good cause.
pending official finds that the respond- (b) Additional proceedings necessary.
ent’s submission in opposition raises a (1) In actions in which additional pro-
genuine dispute over facts material to ceedings are necessary to determine
the suspension, respondent(s) shall be disputed material facts, written find-
afforded an opportunity to appear with ings of fact shall be prepared. The sus-
a representative, submit documentary pending official shall base the decision
evidence, present witnesses, and con- on the facts as found, together with
front any witness the agency presents, any information and argument sub-
unless: mitted by the respondent and any
(i) The action is based on an indict- other information in the administra-
ment, conviction or civil judgment, or tive record.
(ii) A determination is made, on the (2) The suspending official may refer
basis of Department of Justice advice, matters involving disputed material
that the substantial interests of the facts to another official for findings of
Federal Government in pending or con- fact. The suspending official may re-
templated legal proceedings based on ject any such findings, in whole or in
the same facts as the suspension would part, only after specifically deter-
be prejudiced. mining them to be arbitrary or capri-
(2) A transcribed record of any addi- cious or clearly erroneous.
tional proceedings shall be prepared (c) Notice of suspending official’s deci-
and made available at cost to the re- sion. Prompt written notice of the sus-
spondent, upon request, unless the re- pending official’s decision shall be sent
spondent and the agency, by mutual to the respondent.
agreement, waive the requirement for a § 32.415 Period of suspension.
transcript.
(a) Suspension shall be for a tem-
[53 FR 19196, 19204, May 26, 1988, as amended porary period pending the completion
at 53 FR 19197, May 26, 1988] of an investigation or ensuing legal, de-
barment, or Program Fraud Civil Rem-
§ 32.413 Suspending official’s decision. edies Act proceedings, unless termi-
The suspending official may modify nated sooner by the suspending official
or terminate the suspension (for exam- or as provided in paragraph (b) of this
ple, see § 32.320(c) for reasons for reduc- section.
ing the period or scope of debarment) (b) If legal or administrative pro-
or may leave it in force. However, a de- ceedings are not initiated within 12
cision to modify or terminate the sus- months after the date of the suspension
pension shall be without prejudice to notice, the suspension shall be termi-
the subsequent imposition of suspen- nated unless an Assistant Attorney
sion by any other agency or debarment General or United States Attorney re-
by any agency. The decision shall be quests its extension in writing, in
rendered in accordance with the fol- which case it may be extended for an
lowing provisions: additional six months. In no event may
372
a suspension extend beyond 18 months, Subpart E—Responsibilities of GSA,

unless such proceedings have been ini- Agency and Participants
tiated within that period.
(c) The suspending official shall no- § 32.500 GSA responsibilities.
tify the Department of Justice of an
(a) In accordance with the OMB
impending termination of a suspension,
guidelines, GSA shall compile, main-
at least 30 days before the 12-month pe-
tain, and distribute a list of all persons
riod expires, to give that Department
who have been debarred, suspended, or
an opportunity to request an exten-
voluntarily excluded by agencies under
sion.
Executive Order 12549 and these regula-
§ 32.420 Scope of suspension. tions, and those who have been deter-
mined to be ineligible.
The scope of a suspension is the same (b) At a minimum, this list shall in-
as the scope of a debarment (see dicate:
§ 32.325), except that the procedures of (1) The names and addresses of all
§§ 32.410 through 32.413 shall be used in debarred, suspended, ineligible, and
imposing a suspension. voluntarily excluded persons, in alpha-
betical order, with cross-references
§ 32.430 Appeal.
when more than one name is involved
(a) The suspension determination in a single action;
under § 32.413 shall be final. However, (2) The type of action;
any party to the action may request (3) The cause for the action;
the Director, Office of Grants and De- (4) The scope of the action;
barment (OGD Director), to review the (5) Any termination date for each
findings of the suspending official by listing; and
filing a request with the OGD Director (6) The agency and name and tele-
within 30 calendar days of the party’s phone number of the agency point of
receipt of the suspension determina- contact for the action.
tion, or its reconsideration. The re-
quest must be in writing and set forth § 32.505 EPA responsibilities.
the specific reasons why relief should (a) The agency shall provide GSA
be granted. with current information concerning
(b) A review under this section shall debarments, suspension, determina-
be at the discretion of the OGD Direc- tions of ineligibility, and voluntary ex-
tor. If a review is granted, the sus- clusions it has taken. Until February
pending official may stay the effective 18, 1989, the agency shall also provide
date of a suspension order pending res- GSA and OMB with information con-
olution of appeal. If a suspension is cerning all transactions in which EPA
stayed, the stay shall be automatically has granted exceptions under § 32.215
lifted if the OGD Director affirms the permitting participation by debarred,
suspension. suspended, or voluntarily excluded per-
(c) The review shall be based solely sons.
upon the record. The OGD Director (b) Unless an alternative schedule is
may set aside a determination only if agreed to by GSA, the agency shall ad-
it is found to be arbitrary, capricious, vise GSA of the information set forth
an abuse of discretion, or based upon a in § 32.500(b) and of the exceptions
clear error of law. granted under § 32.215 within five work-
(d) The OGD Director’s subsequent ing days after taking such actions.
determination shall be in writing and (c) The agency shall direct inquiries
mailed to all parties. concerning listed persons to the agency
(e) A determination under § 32.413 or a that took the action.
review under this section shall not be (d) Agency officials shall check the
subject to a dispute or a bid protest Nonprocurement List before entering
under parts 30, 31, or 33 of this sub- covered transactions to determine
chapter. whether a participant in a primary
[53 FR 19197, May 26, 1988, as amended at 59 transaction is debarred, suspended, in-
FR 50693, Oct. 5, 1994; 62 FR 47149, Sept. 8, eligible, or voluntarily excluded (Tel.
1997] #).
373
§ 32.510 40 CFR Ch. I (7–1–00 Edition)
(e) Agency officials shall check the (c) Changed circumstances regarding
Nonprocurement List before approving certification. A participant shall provide
principals or lower tier participants immediate written notice to EPA if at
where agency approval of the principal any time the participant learns that
or lower tier participant is required its certification was erroneous when
under the terms of the transaction, to submitted or has become erroneous by
determine whether such principals or reason of changed circumstances. Par-
participants are debarred, suspended, ticipants in lower tier covered trans-
ineligible, or voluntarily excluded. actions shall provide the same updated
notice to the participant to which it
§ 32.510 Participants’ responsibilities. submitted its proposals.
(a) Certification by participants in pri-
mary covered transactions. Each partici- Subpart F—Drug-Free Workplace
pant shall submit the certification in Requirements (Grants)
appendix A to this part for it and its
principals at the time the participant SOURCE: 55 FR 21688, 21701, May 25, 1990, un-
submits its proposal in connection with less otherwise noted.
a primary covered transaction, except
that States need only complete such § 32.600 Purpose.
certification as to their principals. (a) The purpose of this subpart is to
Participants may decide the method carry out the Drug-Free Workplace Act
and frequency by which they determine of 1988 by requiring that—
the eligibility of their principals. In (1) A grantee, other than an indi-
addition, each participant may, but is vidual, shall certify to the agency that
not required to, check the Nonprocure- it will provide a drug-free workplace;
ment List for its principals (Tel. #). (2) A grantee who is an individual
Adverse information on the certifi- shall certify to the agency that, as a
cation will not necessarily result in de- condition of the grant, he or she will
nial of participation. However, the cer- not engage in the unlawful manufac-
tification, and any additional informa- ture, distribution, dispensing, posses-
tion pertaining to the certification sion or use of a controlled substance in
submitted by the participant, shall be conducting any activity with the
considered in the administration of grant.
covered transactions. (b) Requirements implementing the
(b) Certification by participants in Drug-Free Workplace Act of 1988 for
lower tier covered transactions. (1) Each contractors with the agency are found
participant shall require participants at 48 CFR subparts 9.4, 23.5, and 52.2.
in lower tier covered transactions to
include the certification in appendix B § 32.605 Definitions.
to this part for it and its principals in (a) Except as amended in this sec-
any proposal submitted in connection tion, the definitions of § 32.105 apply to
with such lower tier covered trans- this subpart.
actions. (b) For purposes of this subpart—
(2) A participant may rely upon the (1) Controlled substance means a con-
certification of a prospective partici- trolled substance in schedules I
pant in a lower tier covered trans- through V of the Controlled Substances
action that it and its principals are not Act (21 U.S.C. 812), and as further de-
debarred, suspended, ineligible, or vol- fined by regulation at 21 CFR 1308.11
untarily excluded from the covered through 1308.15;
transaction by any Federal agency, un- (2) Conviction means a finding of guilt
less it knows that the certification is (including a plea of nolo contendere) or
erroneous. Participants may decide the imposition of sentence, or both, by any
method and frequency by which they judicial body charged with the respon-
determine the eligiblity of their prin- sibility to determine violations of the
cipals. In addition, a participant may, Federal or State criminal drug stat-
but is not required to, check the Non- utes;
procurement List for its principals and (3) Criminal drug statute means a Fed-
for participants (Tel. #). eral or non-Federal criminal statute
374
involving the manufacture, distribu- any veterans’ benefits to individuals,

tion, dispensing, use, or possession of i.e., any benefit to veterans, their fami-
any controlled substance; lies, or survivors by virtue of the serv-
(4) Drug-free workplace means a site ice of a veteran in the Armed Forces of
for the performance of work done in the United States;
connection with a specific grant at (8) Grantee means a person who ap-
which employees of the grantee are plies for or receives a grant directly
prohibited from engaging in the unlaw- from a Federal agency (except another
ful manufacture, distribution, dis- Federal agency);
pensing, possession, or use of a con- (9) Individual means a natural person;
trolled substance; (10) State means any of the States of
(5) Employee means the employee of a the United States, the District of Co-
grantee directly engaged in the per-
lumbia, the Commonwealth of Puerto
formance of work under the grant, in-
Rico, any territory or possession of the
cluding:
United States, or any agency of a
(i) All direct charge employees;
State, exclusive of institutions of high-
(ii) All indirect charge employees, un-
er education, hospitals, and units of
less their impact or involvement is in-
local government. A State instrumen-
significant to the performance of the
grant; and, tality will be considered part of the
(iii) Temporary personnel and con- State government if it has a written
sultants who are directly engaged in determination from a State govern-
the performance of work under the ment that such State considers the in-
grant and who are on the grantee’s strumentality to be an agency of the
payroll. State government.
This definition does not include work- § 32.610 Coverage.
ers not on the payroll of the grantee
(e.g., volunteers, even if used to meet a (a) This subpart applies to any grant-
matching requirement; consultants or ee of the agency.
independent contractors not on the (b) This subpart applies to any grant,
payroll; or employees of subrecipients except where application of this sub-
or subcontractors in covered work- part would be inconsistent with the
places); international obligations of the United
(6) Federal agency or agency means States or the laws or regulations of a
any United States executive depart- foreign government. A determination
ment, military department, govern- of such inconsistency may be made
ment corporation, government con- only by the agency head or his/her des-
trolled corporation, any other estab- ignee.
lishment in the executive branch (in- (c) The provisions of subparts A, B, C,
cluding the Executive Office of the D and E of this part apply to matters
President), or any independent regu- covered by this subpart, except where
latory agency; specifically modified by this subpart.
(7) Grant means an award of financial In the event of any conflict between
assistance, including a cooperative provisions of this subpart and other
agreement, in the form of money, or provisions of this part, the provisions
property in lieu of money, by a Federal of this subpart are deemed to control
agency directly to a grantee. The term with respect to the implementation of
grant includes block grant and entitle- drug-free workplace requirements con-
ment grant programs, whether or not cerning grants.
exempted from coverage under the
grants management government-wide § 32.615 Grounds for suspension of
common rule on uniform administra- payments, suspension or termi-
tive requirements for grants and coop- nation of grants, or suspension or
erative agreements. The term does not debarment.
include technical assistance that pro- A grantee shall be deemed in viola-
vides services instead of money, or tion of the requirements of this sub-
other assistance in the form of loans, part if the agency head or his or her of-
loan guarantees, interest subsidies, in- ficial designee determines, in writing,
surance, or direct appropriations; or that—
375
§ 32.620 40 CFR Ch. I (7–1–00 Edition)
(a) The grantee has made a false cer- cannot be delegated to any other offi-
tification under § 32.630; cial.
(b) With respect to a grantee other
than an individual— § 32.630 Certification requirements
and procedures.
(1) The grantee has violated the cer-
tification by failing to carry out the (a)(1) As a prior condition of being
requirements of paragraphs (A) (a)–(g) awarded a grant, each grantee shall
and/or (B) of the certification (Alter- make the appropriate certification to
nate I to appendix C) or the Federal agency providing the
(2) Such a number of employees of grant, as provided in appendix C to this
the grantee have been convicted of vio- part.
lations of criminal drug statutes for (2) Grantees are not required to make
violations occurring in the workplace a certification in order to continue re-
as to indicate that the grantee has ceiving funds under a grant awarded
failed to make a good faith effort to before March 18, 1989, or under a no-
provide a drug-free workplace. cost time extension of such a grant.
(c) With respect to a grantee who is However, the grantee shall make a one-
an individual— time drug-free workplace certification
(1) The grantee has violated the cer- for a non-automatic continuation of
tification by failing to carry out its re- such a grant made on or after March
quirements (Alternate II to appendix 18, 1989.
C); or (b) Except as provided in this section,
(2) The grantee is convicted of a all grantees shall make the required
criminal drug offense resulting from a certification for each grant. For man-
violation occurring during the conduct datory formula grants and entitle-
of any grant activity. ments that have no application proc-
ess, grantees shall submit a one-time
§ 32.620 Effect of violation. certification in order to continue re-
ceiving awards.
(a) In the event of a violation of this (c) A grantee that is a State may
subpart as provided in § 32.615, and in elect to make one certification in each
accordance with applicable law, the Federal fiscal year. States that pre-
grantee shall be subject to one or more viously submitted an annual certifi-
of the following actions: cation are not required to make a cer-
(1) Suspension of payments under the tification for Fiscal Year 1990 until
grant; June 30, 1990. Except as provided in
(2) Suspension or termination of the paragraph (d) of this section, this cer-
grant; and tification shall cover all grants to all
(3) Suspension or debarment of the State agencies from any Federal agen-
grantee under the provisions of this cy. The State shall retain the original
part. of this statewide certification in its
(b) Upon issuance of any final deci- Governor’s office and, prior to grant
sion under this part requiring debar- award, shall ensure that a copy is sub-
ment of a grantee, the debarred grant- mitted individually with respect to
ee shall be ineligible for award of any each grant, unless the Federal agency
grant from any Federal agency for a has designated a central location for
period specified in the decision, not to submission.
exceed five years (see § 32.320(a)(2) of (d)(1) The Governor of a State may
this part). exclude certain State agencies from
the statewide certification and author-
§ 32.625 Exception provision. ize these agencies to submit their own
The agency head may waive with re- certifications to Federal agencies. The
spect to a particular grant, in writing, statewide certification shall name any
a suspension of payments under a State agencies so excluded.
grant, suspension or termination of a (2) A State agency to which the
grant, or suspension or debarment of a statewide certification does not apply,
grantee if the agency head determines or a State agency in a State that does
that such a waiver would be in the pub- not have a statewide certification, may
lic interest. This exception authority elect to make one certification in each
376
Federal fiscal year. State agencies that ee shall do the following with respect
previously submitted a State agency to the employee who was convicted.
certification are not required to make (i) Take appropriate personnel action
a certification for Fiscal Year 1990 against the employee, up to and includ-
until June 30, 1990. The State agency ing termination, consistent with re-
shall retain the original of this State quirements of the Rehabilitation Act
agency-wide certification in its central of 1973, as amended; or
office and, prior to grant award, shall (ii) Require the employee to partici-
ensure that a copy is submitted indi- pate satisfactorily in a drug abuse as-
vidually with respect to each grant, sistance or rehabilitation program ap-
unless the Federal agency designates a proved for such purposes by a Federal,
central location for submission. State, or local health, law enforce-
(3) When the work of a grant is done ment, or other appropriate agency.
by more than one State agency, the (b) A grantee who is an individual
certification of the State agency di- who is convicted for a violation of a
rectly receiving the grant shall be criminal drug statute occurring during
deemed to certify compliance for all the conduct of any grant activity shall
workplaces, including those located in report the conviction, in writing, with-
other State agencies. in 10 calendar days, to his or her Fed-
(e)(1) For a grant of less than 30 days eral agency grant officer, or other des-
performance duration, grantees shall ignee, unless the Federal agency has
have this policy statement and pro- designated a central point for the re-
gram in place as soon as possible, but ceipt of such notices. Notification shall
in any case by a date prior to the date include the identification number(s)
on which performance is expected to be for each of the Federal agency’s af-
completed. fected grants.
(2) For a grant of 30 days or more per- (Approved by the Office of Management and
formance duration, grantees shall have Budget under control number 0991–0002)
this policy statement and program in
place within 30 days after award. APPENDIX A TO PART 32—CERTIFICATION
(3) Where extraordinary circum- REGARDING DEBARMENT, SUSPEN-
stances warrant for a specific grant, SION, AND OTHER RESPONSIBILITY
the grant officer may determine a dif- MATTERS—PRIMARY COVERED
ferent date on which the policy state- TRANSACTIONS
ment and program shall be in place. Instructions for Certification
§ 32.635 Reporting of and employee 1. By signing and submitting this proposal,
sanctions for convictions of crimi- the prospective primary participant is pro-
nal drug offenses. viding the certification set out below.
2. The inability of a person to provide the
(a) When a grantee other than an in- certification required below will not nec-
dividual is notified that an employee essarily result in denial of participation in
has been convicted for a violation of a this covered transaction. The prospective
criminal drug statute occurring in the participant shall submit an explanation of
workplace, it shall take the following why it cannot provide the certification set
actions: out below. The certification or explanation
(1) Within 10 calendar days of receiv- will be considered in connection with the de-
partment or agency’s determination whether
ing notice of the conviction, the grant-
to enter into this transaction. However, fail-
ee shall provide written notice, includ- ure of the prospective primary participant to
ing the convicted employee’s position furnish a certification or an explanation
title, to every grant officer, or other shall disqualify such person from participa-
designee on whose grant activity the tion in this transaction.
convicted employee was working, un- 3. The certification in this clause is a ma-
less a Federal agency has designated a terial representation of fact upon which reli-
central point for the receipt of such no- ance was placed when the department or
agency determined to enter into this trans-
tifications. Notification shall include
action. If it is later determined that the pro-
the identification number(s) for each of spective primary participant knowingly ren-
the Federal agency’s affected grants. dered an erroneous certification, in addition
(2) Within 30 calendar days of receiv- to other remedies available to the Federal
ing notice of the conviction, the grant- Government, the department or agency may
377
Pt. 32, App. B 40 CFR Ch. I (7–1–00 Edition)
terminate this transaction for cause or de- person in the ordinary course of business
fault. dealings.
4. The prospective primary participant 10. Except for transactions authorized
shall provide immediate written notice to under paragraph 6 of these instructions, if a
the department or agency to which this pro- participant in a covered transaction know-
posal is submitted if at any time the pro- ingly enters into a lower tier covered trans-
spective primary participant learns that its action with a person who is proposed for de-
certification was erroneous when submitted barment under 48 CFR part 9, subpart 9.4,
or has become erroneous by reason of suspended, debarred, ineligible, or volun-
changed circumstances. tarily excluded from participation in this
5. The terms covered transaction, debarred, transaction, in addition to other remedies
suspended, ineligible, lower tier covered trans- available to the Federal Government, the de-
action, participant, person, primary covered partment or agency may terminate this
transaction, principal, proposal, and volun- transaction for cause or default.
tarily excluded, as used in this clause, have
the meanings set out in the Definitions and Certification Regarding Debarment, Suspension,
Coverage sections of the rules implementing and Other Responsibility Matters—Primary
Executive Order 12549. You may contact the Covered Transactions
department or agency to which this proposal (1) The prospective primary participant
is being submitted for assistance in obtain- certifies to the best of its knowledge and be-
ing a copy of those regulations. lief, that it and its principals:
6. The prospective primary participant (a) Are not presently debarred, suspended,
agrees by submitting this proposal that, proposed for debarment, declared ineligible,
should the proposed covered transaction be or voluntarily excluded by any Federal de-
entered into, it shall not knowingly enter partment or agency;
into any lower tier covered transaction with (b) Have not within a three-year period
a person who is proposed for debarment preceding this proposal been convicted of or
under 48 CFR part 9, subpart 9.4, debarred, had a civil judgment rendered against them
suspended, declared ineligible, or voluntarily for commission of fraud or a criminal offense
excluded from participation in this covered in connection with obtaining, attempting to
transaction, unless authorized by the depart- obtain, or performing a public (Federal,
ment or agency entering into this trans- State or local) transaction or contract under
action. a public transaction; violation of Federal or
7. The prospective primary participant fur- State antitrust statutes or commission of
ther agrees by submitting this proposal that embezzlement, theft, forgery, bribery, fal-
it will include the clause titled ‘‘Certifi- sification or destruction of records, making
cation Regarding Debarment, Suspension, false statements, or receiving stolen prop-
Ineligibility and Voluntary Exclusion-Lower erty;
Tier Covered Transaction,’’ provided by the (c) Are not presently indicted for or other-
department or agency entering into this cov- wise criminally or civilly charged by a gov-
ered transaction, without modification, in ernmental entity (Federal, State or local)
all lower tier covered transactions and in all with commission of any of the offenses enu-
solicitations for lower tier covered trans- merated in paragraph (1)(b) of this certifi-
actions. cation; and
8. A participant in a covered transaction (d) Have not within a three-year period
may rely upon a certification of a prospec- preceding this application/proposal had one
tive participant in a lower tier covered or more public transactions (Federal, State
transaction that it is not proposed for debar- or local) terminated for cause or default.
ment under 48 CFR part 9, subpart 9.4, (2) Where the prospective primary partici-
debarred, suspended, ineligible, or volun- pant is unable to certify to any of the state-
tarily excluded from the covered trans- ments in this certification, such prospective
action, unless it knows that the certification participant shall attach an explanation to
is erroneous. A participant may decide the this proposal.
method and frequency by which it deter- [60 FR 33042, 33059, June 26, 1995]
mines the eligibility of its principals. Each
participant may, but is not required to, APPENDIX B TO PART 32—CERTIFICATION
check the List of Parties Excluded from Fed- REGARDING DEBARMENT, SUSPEN-
eral Procurement and Nonprocurement Pro-
SION, INELIGIBILITY AND VOLUNTARY
grams.
9. Nothing contained in the foregoing shall EXCLUSION—LOWER TIER COVERED
be construed to require establishment of a TRANSACTIONS
system of records in order to render in good
Instructions for Certification
faith the certification required by this
clause. The knowledge and information of a 1. By signing and submitting this proposal,
participant is not required to exceed that the prospective lower tier participant is pro-
which is normally possessed by a prudent viding the certification set out below.
378
Environmental Protection Agency Pt. 32, App. C
2. The certification in this clause is a ma- system of records in order to render in good
terial representation of fact upon which reli- faith the certification required by this
ance was placed when this transaction was clause. The knowledge and information of a
entered into. If it is later determined that participant is not required to exceed that
the prospective lower tier participant know- which is normally possessed by a prudent
ingly rendered an erroneous certification, in person in the ordinary course of business
addition to other remedies available to the dealings.
Federal Government the department or 9. Except for transactions authorized under
agency with which this transaction origi- paragraph 5 of these instructions, if a partic-
nated may pursue available remedies, includ- ipant in a covered transaction knowingly en-
ing suspension and/or debarment. ters into a lower tier covered transaction
3. The prospective lower tier participant with a person who is proposed for debarment
shall provide immediate written notice to under 48 CFR part 9, subpart 9.4, suspended,
the person to which this proposal is sub- debarred, ineligible, or voluntarily excluded
mitted if at any time the prospective lower from participation in this transaction, in ad-
tier participant learns that its certification dition to other remedies available to the
was erroneous when submitted or had be- Federal Government, the department or
come erroneous by reason of changed cir- agency with which this transaction origi-
cumstances. nated may pursue available remedies, includ-
4. The terms covered transaction, debarred, ing suspension and/or debarment.
suspended, ineligible, lower tier covered trans-
action, participant, person, primary covered Certification Regarding Debarment, Suspension,
transaction, principal, proposal, and volun- Ineligibility an Voluntary Exclusion—Lower
tarily excluded, as used in this clause, have Tier Covered Transactions
the meaning set out in the Definitions and (1) The prospective lower tier participant
Coverage sections of rules implementing Ex- certifies, by submission of this proposal, that
ecutive Order 12549. You may contact the neither it nor its principals is presently
person to which this proposal is submitted debarred, suspended, proposed for debarment,
for assistance in obtaining a copy of those declared ineligible, or voluntarily excluded
regulations. from participation in this transaction by any
5. The prospective lower tier participant Federal department or agency.
agrees by submitting this proposal that, (2) Where the prospective lower tier partic-
should the proposed covered transaction be ipant is unable to certify to any of the state-
entered into, it shall not knowingly enter ments in this certification, such prospective
into any lower tier covered transaction with participant shall attach an explanation to
a person who is proposed for debarment this proposal.
under 48 CFR part 9, subpart 9.4, debarred,
suspended, declared ineligible, or voluntarily [60 FR 33042, 33059, June 26, 1995]
excluded from participation in this covered
transaction, unless authorized by the depart- APPENDIX C TO PART 32—CERTIFICATION
ment or agency with which this transaction REGARDING DRUG-FREE WORKPLACE
originated. REQUIREMENTS
6. The prospective lower tier participant
further agrees by submitting this proposal Instructions for Certification
that it will include this clause titled ‘‘Cer- 1. By signing and/or submitting this appli-
tification Regarding Debarment, Suspension, cation or grant agreement, the grantee is
Ineligibility and Voluntary Exclusion-Lower providing the certification set out below.
Tier Covered Transaction,’’ without modi- 2. The certification set out below is a ma-
fication, in all lower tier covered trans- terial representation of fact upon which reli-
actions and in all solicitations for lower tier ance is placed when the agency awards the
covered transactions. grant. If it is later determined that the
7. A participant in a covered transaction grantee knowingly rendered a false certifi-
may rely upon a certification of a prospec- cation, or otherwise violates the require-
tive participant in a lower tier covered ments of the Drug-Free Workplace Act, the
transaction that it is not proposed for debar- agency, in addition to any other remedies
ment under 48 CFR part 9, subpart 9.4, available to the Federal Government, may
debarred, suspended, ineligible, or volun- take action authorized under the Drug-Free
tarily excluded from covered transactions, Workplace Act.
unless it knows that the certification is erro- 3. For grantees other than individuals, Al-
neous. A participant may decide the method ternate I applies.
and frequency by which it determines the 4. For grantees who are individuals, Alter-
eligibility of its principals. Each participant nate II applies.
may, but is not required to, check the List of 5. Workplaces under grants, for grantees
Parties Excluded from Federal Procurement other than individuals, need not be identified
and Nonprocurement Programs. on the certification. If known, they may be
8. Nothing contained in the foregoing shall identified in the grant application. If the
be construed to require establishment of a grantee does not identify the workplaces at
379
Pt. 32, App. C 40 CFR Ch. I (7–1–00 Edition)
the time of application, or upon award, if Certification Regarding Drug-Free Workplace
there is no application, the grantee must Requirements
keep the identity of the workplace(s) on file
in its office and make the information avail- Alternate I. (GRANTEES OTHER THAN
able for Federal inspection. Failure to iden- INDIVIDUALS)
tify all known workplaces constitutes a vio- A. The grantee certifies that it will or will
lation of the grantee’s drug-free workplace continue to provide a drug-free workplace
requirements. by:
6. Workplace identifications must include (a) Publishing a statement notifying em-
the actual address of buildings (or parts of ployees that the unlawful manufacture, dis-
buildings) or other sites where work under tribution, dispensing, possession, or use of a
the grant takes place. Categorical descrip- controlled substance is prohibited in the
tions may be used (e.g., all vehicles of a mass grantee’s workplace and specifying the ac-
transit authority or State highway depart- tions that will be taken against employees
ment while in operation, State employees in for violation of such prohibition;
each local unemployment office, performers (b) Establishing an ongoing drug-free
in concert halls or radio studios). awareness program to inform employees
7. If the workplace identified to the agency about—
changes during the performance of the grant, (1) The dangers of drug abuse in the work-
the grantee shall inform the agency of the place;
change(s), if it previously identified the (2) The grantee’s policy of maintaining a
workplaces in question (see paragraph five). drug-free workplace;
8. Definitions of terms in the Nonprocure- (3) Any available drug counseling, rehabili-
ment Suspension and Debarment common tation, and employee assistance programs;
rule and Drug-Free Workplace common rule and
apply to this certification. Grantees’ atten- (4) The penalties that may be imposed
tion is called, in particular, to the following upon employees for drug abuse violations oc-
definitions from these rules: curring in the workplace;
Controlled substance means a controlled (c) Making it a requirement that each em-
substance in Schedules I through V of the ployee to be engaged in the performance of
Controlled Substances Act (21 U.S.C. 812) and the grant be given a copy of the statement
as further defined by regulation (21 CFR required by paragraph (a);
1308.11 through 1308.15); (d) Notifying the employee in the state-
Conviction means a finding of guilt (includ- ment required by paragraph (a) that, as a
ing a plea of nolo contendere) or imposition condition of employment under the grant,
of sentence, or both, by any judicial body the employee will—
charged with the responsibility to determine (1) Abide by the terms of the statement;
violations of the Federal or State criminal and
drug statutes; (2) Notify the employer in writing of his or
Criminal drug statute means a Federal or her conviction for a violation of a criminal
non-Federal criminal statute involving the drug statute occurring in the workplace no
manufacture, distribution, dispensing, use, later than five calendar days after such con-
or possession of any controlled substance; viction;
Employee means the employee of a grantee (e) Notifying the agency in writing, within
directly engaged in the performance of work ten calendar days after receiving notice
under a grant, including: (i) All direct charge under paragraph (d)(2) from an employee or
employees; (ii) All indirect charge employees otherwise receiving actual notice of such
unless their impact or involvement is insig- conviction. Employers of convicted employ-
nificant to the performance of the grant; ees must provide notice, including position
and, (iii) Temporary personnel and consult- title, to every grant officer or other designee
ants who are directly engaged in the per- on whose grant activity the convicted em-
formance of work under the grant and who ployee was working, unless the Federal agen-
are on the grantee’s payroll. This definition cy has designated a central point for the re-
does not include workers not on the payroll ceipt of such notices. Notice shall include
of the grantee (e.g., volunteers, even if used the identification number(s) of each affected
to meet a matching requirement; consult- grant;
ants or independent contractors not on the (f) Taking one of the following actions,
grantee’s payroll; or employees of subrecipi- within 30 calendar days of receiving notice
ents or subcontractors in covered work- under paragraph (d)(2), with respect to any
places). employee who is so convicted—
380
(1) Taking appropriate personnel action Subpart C—Activities by Other Than Own
against such an employee, up to and includ- Employees
ing termination, consistent with the require-
ments of the Rehabilitation Act of 1973, as 34.300 Professional and technical services.
amended; or
(2) Requiring such employee to participate Subpart D—Penalties and Enforcement
satisfactorily in a drug abuse assistance or
rehabilitation program approved for such 34.400 Penalties.
purposes by a Federal, State, or local health, 34.405 Penalty procedures.
34.410 Enforcement.
law enforcement, or other appropriate agen-
cy;
Subpart E—Exemptions
(g) Making a good faith effort to continue
to maintain a drug-free workplace through 34.500 Secretary of Defense.
implementation of paragraphs (a), (b), (c),
(d), (e) and (f). Subpart F—Agency Reports
B. The grantee may insert in the space pro-
vided below the site(s) for the performance of 34.600 Semi-annual compilation.
work done in connection with the specific 34.605 Inspector General report.
grant: APPENDIX A TO PART 34—CERTIFICATION RE-
Place of Performance (Street address, city, GARDING LOBBYING
county, State, zip code) APPENDIX B TO PART 34—DISCLOSURE FORM
TO REPORT LOBBYING
llllllllllllllllllllllll
llllllllllllllllllllllll AUTHORITY: Section 319; Pub. L. 101–121 (31

llllllllllllllllllllllll U.S.C. 1352); 33 U.S.C. 1251 et seq.; 42 U.S.C.
7401 et seq.; 42 U.S.C. 6901 et seq.; 42 U.S.C. 300f
Check b if there are workplaces on file that
et seq.; 7 U.S.C. 136 et seq.; 15 U.S.C. 2601 et
are not identified here.
seq.; 42 U.S.C. 9601 et seq.; 20 U.S.C. 4011 et
Alternate II. (GRANTEES WHO ARE seq.; 33 U.S.C. 1401 et seq.
INDIVIDUALS) SOURCE: 55 FR 6737 and 6753, Feb. 26, 1990
(a) The grantee certifies that, as a condi- (interim), unless otherwise noted.
tion of the grant, he or she will not engage CROSS-REFERENCE: See also Office of Man-
in the unlawful manufacture, distribution, agement and Budget notice published at 54
dispensing, possession, or use of a controlled FR 52306, December 20, 1989.
substance in conducting any activity with
the grant;
(b) If convicted of a criminal drug offense
Subpart A—General
resulting from a violation occurring during
§ 34.100 Conditions on use of funds.
the conduct of any grant activity, he or she
will report the conviction, in writing, within (a) No appropriated funds may be ex-
10 calendar days of the conviction, to every pended by the recipient of a Federal
grant officer or other designee, unless the contract, grant, loan, or cooperative
Federal agency designates a central point for agreement to pay any person for influ-
the receipt of such notices. When notice is
encing or attempting to influence an
made to such a central point, it shall include
the identification number(s) of each affected officer or employee of any agency, a
grant. Member of Congress, an officer or em-
ployee of Congress, or an employee of a
[55 FR 21690, 21701, May 25, 1990] Member of Congress in connection with
any of the following covered Federal
PART 34—NEW RESTRICTIONS ON actions: the awarding of any Federal
LOBBYING contract, the making of any Federal
grant, the making of any Federal loan,
Subpart A—General the entering into of any cooperative
agreement, and the extension, continu-
Sec. ation, renewal, amendment, or modi-
34.100 Conditions on use of funds. fication of any Federal contract, grant,
34.105 Definitions. loan, or cooperative agreement.
34.110 Certification and disclosure. (b) Each person who requests or re-
ceives from an agency a Federal con-
Subpart B—Activities by Own Employees
tract, grant, loan, or cooperative
34.200 Agency and legislative liaison. agreement shall file with that agency a
34.205 Professional and technical services. certification, set forth in appendix A,
34.210 Reporting. that the person has not made, and will
381
§ 34.105 40 CFR Ch. I (7–1–00 Edition)
not make, any payment prohibited by (5) The extension, continuation, re-
paragraph (a) of this section. newal, amendment, or modification of
(c) Each person who requests or re- any Federal contract, grant, loan, or
ceives from an agency a Federal con- cooperative agreement.
tract, grant, loan, or a cooperative Covered Federal action does not in-
agreement shall file with that agency a clude receiving from an agency a com-
disclosure form, set forth in appendix mitment providing for the United
B, if such person has made or has
States to insure or guarantee a loan.
agreed to make any payment using
Loan guarantees and loan insurance
nonappropriated funds (to include prof-
its from any covered Federal action), are addressed independently within
which would be prohibited under para- this part.
graph (a) of this section if paid for with (c) Federal contract means an acquisi-
appropriated funds. tion contract awarded by an agency,
(d) Each person who requests or re- including those subject to the Federal
ceives from an agency a commitment Acquisition Regulation (FAR), and any
providing for the United States to in- other acquisition contract for real or
sure or guarantee a loan shall file with personal property or services not sub-
that agency a statement, set forth in ject to the FAR.
appendix A, whether that person has (d) Federal cooperative agreement
made or has agreed to make any pay- means a cooperative agreement en-
ment to influence or attempt to influ- tered into by an agency.
ence an officer or employee of any (e) Federal grant means an award of
agency, a Member of Congress, an offi- financial assistance in the form of
cer or employee of Congress, or an em-
money, or property in lieu of money,
ployee of a Member of Congress in con-
by the Federal Government or a direct
nection with that loan insurance or
appropriation made by law to any per-
guarantee.
son. The term does not include tech-
(e) Each person who requests or re-
nical assistance which provides serv-
ceives from an agency a commitment
providing for the United States to in- ices instead of money, or other assist-
sure or guarantee a loan shall file with ance in the form of revenue sharing,
that agency a disclosure form, set forth loans, loan guarantees, loan insurance,
in appendix B, if that person has made interest subsidies, insurance, or direct
or has agreed to make any payment to United States cash assistance to an in-
influence or attempt to influence an of- dividual.
ficer or employee of any agency, a (f) Federal loan means a loan made by
Member of Congress, an officer or em- an agency. The term does not include
ployee of Congress, or an employee of a loan guarantee or loan insurance.
Member of Congress in connection with (g) Indian tribe and tribal organization
that loan insurance or guarantee. have the meaning provided in section 4
of the Indian Self-Determination and
§ 34.105 Definitions. Education Assistance Act (25 U.S.C.
For purposes of this part: 450B). Alaskan Natives are included
(a) Agency, as defined in 5 U.S.C. under the definitions of Indian tribes in
552(f), includes Federal executive de- that Act.
partments and agencies as well as inde- (h) Influencing or attempting to influ-
pendent regulatory commissions and ence means making, with the intent to
Government corporations, as defined in influence, any communication to or ap-
31 U.S.C. 9101(1). pearance before an officer or employee
(b) Covered Federal action means any or any agency, a Member of Congress,
of the following Federal actions: an officer or employee of Congress, or
(1) The awarding of any Federal con- an employee of a Member of Congress
tract; in connection with any covered Federal
(2) The making of any Federal grant; action.
(3) The making of any Federal loan; (i) Loan guarantee and loan insurance
(4) The entering into of any coopera- means an agency’s guarantee or insur-
tive agreement; and, ance of a loan made by a person.
382
(j) Local government means a unit of erative agreement. The term excludes
government in a State and, if char- an Indian tribe, tribal organization, or
tered, established, or otherwise recog- any other Indian organization with re-
nized by a State for the performance of spect to expenditures specifically per-
a governmental duty, including a local mitted by other Federal law.
public authority, a special district, an (p) Regularly employed means, with
intrastate district, a council of govern- respect to an officer or employee of a
ments, a sponsor group representative person requesting or receiving a Fed-
organization, and any other instrumen- eral contract, grant, loan, or coopera-
tality of a local government. tive agreement or a commitment pro-
(k) Officer or employee of an agency in- viding for the United States to insure
cludes the following individuals who or guarantee a loan, an officer or em-
are employed by an agency:
ployee who is employed by such person
(1) An individual who is appointed to
for at least 130 working days within
a position in the Government under
one year immediately preceding the
title 5, U.S. Code, including a position
date of the submission that initiates
under a temporary appointment;
agency consideration of such person for
(2) A member of the uniformed serv-
ices as defined in section 101(3), title 37, receipt of such contract, grant, loan,
U.S. Code; cooperative agreement, loan insurance
(3) A special Government employee commitment, or loan guarantee com-
as defined in section 202, title 18, U.S. mitment. An officer or employee who is
Code; and, employed by such person for less than
(4) An individual who is a member of 130 working days within one year im-
a Federal advisory committee, as de- mediately preceding the date of the
fined by the Federal Advisory Com- submission that initiates agency con-
mittee Act, title 5, U.S. Code appendix sideration of such person shall be con-
2. sidered to be regularly employed as
(l) Person means an individual, cor- soon as he or she is employed by such
poration, company, association, au- person for 130 working days.
thority, firm, partnership, society, (q) State means a State of the United
State, and local government, regard- States, the District of Columbia, the
less of whether such entity is operated Commonwealth of Puerto Rico, a terri-
for profit or not for profit. This term tory or possession of the United States,
excludes an Indian tribe, tribal organi- an agency or instrumentality of a
zation, or any other Indian organiza- State, and a multi-State, regional, or
tion with respect to expenditures spe- interstate entity having governmental
cifically permitted by other Federal duties and powers.
law.
(m) Reasonable compensation means, § 34.110 Certification and disclosure.
with respect to a regularly employed (a) Each person shall file a certifi-
officer or employee of any person, com- cation, and a disclosure form, if re-
pensation that is consistent with the quired, with each submission that ini-
normal compensation for such officer tiates agency consideration of such
or employee for work that is not fur- person for:
nished to, not funded by, or not fur-
(1) Award of a Federal contract,
nished in cooperation with the Federal
grant, or cooperative agreement ex-
Government.
(n) Reasonable payment means, with ceeding $100,000; or
respect to professional and other tech- (2) An award of a Federal loan or a
nical services, a payment in an amount commitment providing for the United
that is consistent with the amount nor- States to insure or guarantee a loan
mally paid for such services in the pri- exceeding $150,000.
vate sector. (b) Each person shall file a certifi-
(o) Recipient includes all contractors, cation, and a disclosure form, if re-
subcontractors at any tier, and sub- quired, upon receipt by such person of:
grantees at any tier of the recipient of (1) A Federal contract, grant, or co-
funds received in connection with a operative agreement exceeding $100,000;
Federal contract, grant, loan, or coop- or
383
§ 34.200 40 CFR Ch. I (7–1–00 Edition)
(2) A Federal loan or a commitment arising from an erroneous representa-

providing for the United States to in- tion shall be borne solely by the tier
sure or guarantee a loan exceeding filing that representation and shall not
$150,000, be shared by any tier to which the er-
Unless such person previously filed a roneous representation is forwarded.
certification, and a disclosure form, if Submitting an erroneous certification
required, under paragraph (a) of this or disclosure constitutes a failure to
section. file the required certification or disclo-
(c) Each person shall file a disclosure sure, respectively. If a person fails to
form at the end of each calendar quar- file a required certification or disclo-
ter in which there occurs any event sure, the United States may pursue all
that requires disclosure or that materi- available remedies, including those au-
ally affects the accuracy of the infor- thorized by section 1352, title 31, U.S.
mation contained in any disclosure Code.
form previously filed by such person (g) For awards and commitments in
under paragraphs (a) or (b) of this sec- process prior to December 23, 1989, but
tion. An event that materially affects not made before that date, certifi-
the accuracy of the information re- cations shall be required at award or
ported includes: commitment, covering activities oc-
(1) A cumulative increase of $25,000 or curring between December 23, 1989, and
more in the amount paid or expected to the date of award or commitment.
be paid for influencing or attempting However, for awards and commitments
to influence a covered Federal action; in process prior to the December 23,
or 1989 effective date of these provisions,
(2) A change in the person(s) or indi- but not made before December 23, 1989,
vidual(s) influencing or attempting to disclosure forms shall not be required
influence a covered Federal action; or, at time of award or commitment but
(3) A change in the officer(s), em- shall be filed within 30 days.
ployee(s), or Member(s) contacted to (h) No reporting is required for an ac-
influence or attempt to influence a tivity paid for with appropriated funds
covered Federal action. if that activity is allowable under ei-
(d) Any person who requests or re- ther subpart B or C.
ceives from a person referred to in
paragraphs (a) or (b) of this section: Subpart B—Activities by Own
(1) A subcontract exceeding $100,000 Employees
at any tier under a Federal contract;
(2) A subgrant, contract, or sub- § 34.200 Agency and legislative liaison.
contract exceeding $100,000 at any tier (a) The prohibition on the use of ap-
under a Federal grant; propriated funds, in § 34.100 (a), does
(3) A contract or subcontract exceed- not apply in the case of a payment of
ing $100,000 at any tier under a Federal reasonable compensation made to an
loan exceeding $150,000; or, officer or employee of a person request-
(4) A contract or subcontract exceeding or receiving a Federal contract,
ing $100,000 at any tier under a Federal grant, loan, or cooperative agreement
cooperative agreement, if the payment is for agency and legis-
Shall file a certification, and a disclo- lative liaison activities not directly re-
sure form, if required, to the next tier lated to a covered Federal action.
above. (b) For purposes of paragraph (a) of
(e) All disclosure forms, but not cer- this section, providing any information
tifications, shall be forwarded from specifically requested by an agency or
tier to tier until received by the person Congress is allowable at any time.
referred to in paragraphs (a) or (b) of (c) For purposes of paragraph (a) of
this section. That person shall forward this section, the following agency and
all disclosure forms to the agency. legislative liaison activities are allow-
(f) Any certification or disclosure able at any time only where they are
form filed under paragraph (e) of this not related to a specific solicitation for
section shall be treated as a material any covered Federal action:
representation of fact upon which all (1) Discussing with an agency (in-
receiving tiers shall rely. All liability cluding individual demonstrations) the
384
qualities and characteristics of the per- vice and analysis directly applying any
son’s products or services, conditions professional or technical discipline.
or terms of sale, and service capabili- For example, drafting of a legal docu-
ties; and, ment accompanying a bid or proposal
(2) Technical discussions and other by a lawyer is allowable. Similarly,
activities regarding the application or technical advice provided by an engi-
adaptation of the person’s products or neer on the performance or operational
services for an agency’s use. capability of a piece of equipment ren-
(d) For purposes of paragraph (a) of dered directly in the negotiation of a
this section, the following agencies and contract is allowable. However, com-
legislative liaison activities are allow- munications with the intent to influ-
able only where they are prior to for- ence made by a professional (such as a
mal solicitation of any covered Federal licensed lawyer) or a technical person
action: (such as a licensed accountant) are not
(1) Providing any information not allowable under this section unless
specifically requested but necessary for they provide advice and analysis di-
an agency to make an informed deci- rectly applying their professional or
sion about initiation of a covered Fed- technical expertise and unless the ad-
eral action; vice or analysis is rendered directly
(2) Technical discussions regarding and solely in the preparation, submis-
the preparation of an unsolicited pro- sion or negotiation of a covered Fed-
posal prior to its official submission; eral action. Thus, for example, commu-
and, nications with the intent to influence
(3) Capability presentations by per- made by a lawyer that do not provide
sons seeking awards from an agency legal advice or analysis directly and
pursuant to the provisions of the Small solely related to the legal aspects of
Business Act, as amended by Public his or her client’s proposal, but gen-
Law 95–507 and other subsequent erally advocate one proposal over an-
amendments. other are not allowable under this sec-
(e) Only those activities expressly au- tion because the lawyer is not pro-
thorized by this section are allowable viding professional legal services.
under this section. Similarly, communications with the
§ 34.205 Professional and technical intent to influence made by an engi-
services. neer providing an engineering analysis
prior to the preparation or submission
(a) The prohibition on the use of ap- of a bid or proposal are not allowable
propriated funds, in § 34.100 (a), does under this section since the engineer is
not apply in the case of a payment of providing technical services but not di-
reasonable compensation made to an rectly in the preparation, submission
officer or employee of a person request- or negotiation of a covered Federal ac-
ing or receiving a Federal contract,
tion.
grant, loan, or cooperative agreement
(c) Requirements imposed by or pur-
or an extension, continuation, renewal,
suant to law as a condition for receiv-
amendment, or modification of a Fed-
eral contract, grant, loan, or coopera- ing a covered Federal award include
tive agreement if payment is for pro- those required by law or regulation, or
fessional or technical services rendered reasonably expected to be required by
directly in the preparation, submis- law or regulation, and any other re-
sion, or negotiation of any bid, pro- quirements in the actual award docu-
posal, or application for that Federal ments.
contract, grant, loan, or cooperative (d) Only those services expressly au-
agreement or for meeting requirements thorized by this section are allowable
imposed by or pursuant to law as a under this section.
condition for receiving that Federal
contract, grant, loan, or cooperative § 34.210 Reporting.
agreement. No reporting is required with respect
(b) For purposes of paragraph (a) of to payments of reasonable compensa-
this section, ‘‘professional and tech- tion made to regularly employed offi-
nical services’’ shall be limited to ad- cers or employees of a person.
385
§ 34.300 40 CFR Ch. I (7–1–00 Edition)
Subpart C—Activities by Other his or her client’s proposal, but gen-

Than Own Employees erally advocate one proposal over an-
other are not allowable under this sec-
§ 34.300 Professional and technical tion because the lawyer is not pro-
services. viding professional legal services.
(a) The prohibition on the use of ap- Similarly, communications with the
propriated funds, in § 34.100 (a), does intent to influence made by an engi-
not apply in the case of any reasonable neer providing an engineering analysis
payment to a person, other than an of- prior to the preparation or submission
ficer or employee of a person request- of a bid or proposal are not allowable
ing or receiving a covered Federal ac- under this section since the engineer is
tion, if the payment is for professional providing technical services but not di-
or technical services rendered directly rectly in the preparation, submission
in the preparation, submission, or ne- or negotiation of a covered Federal ac-
gotiation of any bid, proposal, or appli- tion.
cation for that Federal contract, grant, (d) Requirements imposed by or pur-
loan, or cooperative agreement or for suant to law as a condition for receiv-
meeting requirements imposed by or ing a covered Federal award include
pursuant to law as a condition for re- those required by law or regulation, or
ceiving that Federal contract, grant, reasonably expected to be required by
loan, or cooperative agreement. law or regulation, and any other re-
(b) The reporting requirements in quirements in the actual award docu-
§ 34.110 (a) and (b) regarding filing a dis- ments.
closure form by each person, if re- (e) Persons other than officers or em-
quired, shall not apply with respect to ployees of a person requesting or re-
professional or technical services ren- ceiving a covered Federal action in-
dered directly in the preparation, sub- clude consultants and trade associa-
mission, or negotiation of any commit- tions.
ment providing for the United States (f) Only those services expressly au-
to insure or guarantee a loan. thorized by this section are allowable
(c) For purposes of paragraph (a) of under this section.
this section, ‘‘professional and tech-
nical services’’ shall be limited to ad- Subpart D—Penalties and
vice and analysis directly applying any Enforcement
professional or technical discipline.
For example, drafting or a legal docu- § 34.400 Penalties.
ment accompanying a bid or proposal (a) Any person who makes an expend-
by a lawyer is allowable. Similarly, iture prohibited herein shall be subject
technical advice provided by an engi- to a civil penalty of not less than
neer on the performance or operational $10,000 and not more than $100,000 for
capability of a piece of equipment ren- each such expenditure.
dered directly in the negotiation of a (b) Any person who fails to file or
contract is allowable. However, com- amend the disclosure form (see appen-
munications with the intent to influ- dix B) to be filed or amended if re-
ence made by a professional (such as a quired herein, shall be subject to a civil
licensed lawyer) or a technical person penalty of not less than $10,000 and not
(such as a licensed accountant) are not more than $100,000 for each such fail-
allowable under this section unless ure.
they provide advice and analysis di- (c) A filing or amended filing on or
rectly applying their professional or after the date on which an administra-
technical expertise and unless the ad- tive action for the imposition of a civil
vice or analysis is rendered directly penalty is commenced does not prevent
and solely in the preparation, submis- the imposition of such civil penalty for
sion or negotiation of a covered Fed- a failure occurring before that date. An
eral action. Thus, for example, commu- administrative action is commenced
nications with the intent to influence with respect to a failure when an inves-
made by a lawyer that do not provide tigating official determines in writing
legal advice or analysis directly and to commence an investigation of an al-
solely related to the legal aspects of legation of such failure.
386
(d) In determining whether to impose (b) The Department of Defense may

a civil penalty, and the amount of any issue supplemental regulations to im-
such penalty, by reason of a violation plement paragraph (a) of this section.
by any person, the agency shall con-
sider the nature, circumstances, ex- Subpart F—Agency Reports
tent, and gravity of the violation, the
effect on the ability of such person to § 34.600 Semi-annual compilation.
continue in business, any prior viola- (a) The head of each agency shall col-
tions by such person, the degree of cul- lect and compile the disclosure reports
pability of such person, the ability of (see appendix B) and, on May 31 and
the person to pay the penalty, and such November 30 of each year, submit to
other matters as may be appropriate. the Secretary of the Senate and the
(e) First offenders under paragraphs Clerk of the House of Representatives a
(a) or (b) of this section shall be subject report containing a compilation of the
to a civil penalty of $10,000, absent ag- information contained in the disclo-
gravating circumstances. Second and sure reports received during the six-
subsequent offenses by persons shall be month period ending on March 31 or
subject to an appropriate civil penalty September 30, respectively, of that
between $10,000 and $100,000, as deter- year.
mined by the agency head or his or her (b) The report, including the com-
designee. pilation, shall be available for public
(f) An imposition of a civil penalty inspection 30 days after receipt of the
under this section does not prevent the report by the Secretary and the Clerk.
United States from seeking any other (c) Information that involves intel-
remedy that may apply to the same ligence matters shall be reported only
conduct that is the basis for the impo- to the Select Committee on Intel-
sition of such civil penalty. ligence of the Senate, the Permanent
Select Committee on Intelligence of
§ 34.405 Penalty procedures. the House of Representatives, and the
Agencies shall impose and collect Committees on Appropriations of the
civil penalties pursuant to the provi- Senate and the House of Representa-
sions of the Program Fraud and Civil tives in accordance with procedures
Remedies Act, 31 U.S.C. 3803 (except agreed to by such committees. Such in-
subsection (c)), 3804, 3805, 3806, 3807, formation shall not be available for
3808, and 3812, insofar as these provi- public inspection.
sions are not inconsistent with the re- (d) Information that is classified
quirements herein. under Executive Order 12356 or any suc-
cessor order shall be reported only to
§ 34.410 Enforcement. the Committee on Foreign Relations of
the Senate and the Committee on For-
The head of each agency shall take
eign Affairs of the House of Represent-
such actions as are necessary to ensure
atives or the Committees on Armed
that the provisions herein are vigor-
Services of the Senate and the House of
ously implemented and enforced in
Representatives (whichever such com-
that agency.
mittees have jurisdiction of matters
involving such information) and to the
Subpart E—Exemptions Committees on Appropriations of the
Senate and the House of Representa-
§ 34.500 Secretary of Defense. tives in accordance with procedures
(a) The Secretary of Defense may ex- agreed to by such committees. Such in-
empt, on a case-by-case basis, a cov- formation shall not be available for
ered Federal action from the prohibi- public inspection.
tion whenever the Secretary deter- (e) The first semi-annual compilation
mines, in writing, that such an exemp- shall be submitted on May 31, 1990, and
tion is in the national interest. The shall contain a compilation of the dis-
Secretary shall transmit a copy of each closure reports received from Decem-
such written exemption to Congress ber 23, 1989 to March 31, 1990.
immediately after making such a de- (f) Major agencies, designated by the
termination. Office of Management and Budget
387
§ 34.605 40 CFR Ch. I (7–1–00 Edition)
(OMB), are required to provide ma- APPENDIX A TO PART 34—CERTIFICATION

chine-readable compilations to the REGARDING LOBBYING
Secretary of the Senate and the Clerk
Certification for Contracts, Grants, Loans, and
of the House of Representatives no Cooperative Agreements
later than with the compilations due
The undersigned certifies, to the best of his
on May 31, 1991. OMB shall provide de- or her knowledge and belief, that:
tailed specifications in a memorandum (1) No Federal appropriated funds have
to these agencies. been paid or will be paid, by or on behalf of
(g) Non-major agencies are requested the undersigned, to any person for influ-
to provide machine-readable compila- encing or attempting to influence an officer
or employee of an agency, a Member of Con-
tions to the Secretary of the Senate
gress, an officer or employee of Congress, or
and the Clerk of the House of Rep- an employee of a Member of Congress in con-
resentatives. nection with the awarding of any Federal
(h) Agencies shall keep the originals contract, the making of any Federal grant,
of all disclosure reports in the official the making of any Federal loan, the entering
files of the agency. into of any cooperative agreement, and the
extension, continuation, renewal, amend-
ment, or modification of any Federal con-
§ 34.605 Inspector General report.
tract, grant, loan, or cooperative agreement.
(a) The Inspector General, or other (2) If any funds other than Federal appro-
official as specified in paragraph (b) of priated funds have been paid or will be paid
to any person for influencing or attempting
this section, of each agency shall pre-
to influence an officer or employee of any
pare and submit to Congress each year, agency, a Member of Congress, an officer or
commencing with submission of the employee of Congress, or an employee of a
President’s Budget in 1991, an evalua- Member of Congress in connection with this
tion of the compliance of that agency Federal contract, grant, loan, or cooperative
with, and the effectiveness of, the re- agreement, the undersigned shall complete
and submit Standard Form–LLL, ‘‘Disclo-
quirements herein. The evaluation may
sure Form to Report Lobbying,’’ in accord-
include any recommended changes that ance with its instructions.
may be necessary to strengthen or im- (3) The undersigned shall require that the
prove the requirements. language of this certification be included in
(b) In the case of an agency that does the award documents for all subawards at all
not have an Inspector General, the tiers (including subcontracts, subgrants, and
contracts under grants, loans, and coopera-
agency official comparable to an In- tive agreements) and that all subrecipients
spector General shall prepare and sub- shall certify and disclose accordingly.
mit the annual report, or, if there is no This certification is a material representa-
such comparable official, the head of tion of fact upon which reliance was placed
the agency shall prepare and submit when this transaction was made or entered
into. Submission of this certification is a
the annual report.
prerequisite for making or entering into this
(c) The annual report shall be sub- transaction imposed by section 1352, title 31,
mitted at the same time the agency U.S. Code. Any person who fails to file the
submits its annual budget justifica- required certification shall be subject to a
tions to Congress. civil penalty of not less than $10,000 and not
more than $100,000 for each such failure.
(d) The annual report shall include
the following: All alleged violations re- Statement for Loan Guarantees and Loan
lating to the agency’s covered Federal Insurance
actions during the year covered by the The undersigned states, to the best of his
report, the actions taken by the head or her knowledge and belief, that:
of the agency in the year covered by If any funds have been paid or will be paid
the report with respect to those alleged to any person for influencing or attempting
to influence an officer or employee of any
violations and alleged violations in
agency, a Member of Congress, an officer or
previous years, and the amounts of employee of Congress, or an employee of a
civil penalties imposed by the agency Member of Congress in connection with this
in the year covered by the report. commitment providing for the United States
388
to insure or guarantee a loan, the under- transaction imposed by section 1352, title 31,
signed shall complete and submit Standard U.S. Code. Any person who fails to file the
Form–LLL, ‘‘Disclosure Form to Report Lob- required statement shall be subject to a civil
bying,’’ in accordance with its instructions. penalty of not less than $10,000 and not more
Submission of this statement is a pre- than $100,000 for each such failure.
requisite for making or entering into this
389
APPENDIX B TO PART 34—DISCLOSURE FORM TO REPORT LOBBYING
390
Environmental Protection Agency Pt. 34, App. B
391
392
PART 35—STATE AND LOCAL HAZARDOUS WASTE MANAGEMENT (SECTION

3011)
ASSISTANCE
35.500 Purpose.
Sec. 35.505 Maximum Federal share.
35.001 Applicability. 35.510 Limitations.
PESTICIDE ENFORCEMENT (SECTION 23(A)(1))
Subpart A—Financial Assistance for
Continuing Environmental Programs 35.550 Purpose.
35.555 Maximum Federal share.
35.100 Purpose.
35.105 Definitions. PESTICIDE APPLICATOR CERTIFICATION AND
35.110 Summary of annual process. TRAINING (SECTION 23(A)(2))
35.115 State allotments and reserves. 35.600 Purpose.
35.120 Planning targets. 35.605 Maximum Federal share.
35.125 Program guidance.
35.130 Work program. NONPOINT SOURCE MANAGEMENT (SECTIONS
35.135 Budget period. 205(J)(5) AND 319(H))
35.140 Application for assistance.
35.750 Purpose.
35.141 EPA action on application.
35.755 Awards to Indian Tribes.
35.143 Assistance amount.
35.145 Consolidated assistance.
35.150 Evaluation of recipient performance.
35.155 Reallocation. Subparts B–D [Reserved]
AIR POLLUTION CONTROL (SECTION 105) Subpart E—Grants for Construction of

Treatment Works—Clean Water Act
35.200 Purpose.
35.201 Definitions applicable to section 105. 35.900 Purpose.
35.205 Maximum Federal share. 35.901 Program policy.
35.210 Maintenance of effort. 35.903 Summary of construction grant pro-
35.215 Limitations. gram.
35.220 Eligible Indian Tribes. 35.905 Definitions.
35.907 Municipal pretreatment program.
WATER POLLUTION CONTROL (SECTION 106)
35.908 Innovative and alternative tech-
35.250 Purpose. nologies.
35.251 Definitions. 35.909 Step 2 = 3 grants.
35.252 State and interstate allotments. 35.910 Allocation of funds.
35.255 Maintenance of effort. 35.910–1 Allotments.
35.260 Limitations. 35.910–2 Period of availability; reallotment.
35.265 Awards to Indian Tribes. 35.910–3—35.910–4 [Reserved]
35.910–5 Additional allotments of previously
STATE ADMINISTRATION (SECTION 205(G)) withheld sums.
35.300 Purpose. 35.910–6 Fiscal Year 1977 public works allot-
35.305 Maintenance of effort. ments.
35.310 Limitations. 35.910–7 Fiscal Year 1977 Supplemental Ap-
propriations Act allotments.
WATER QUALITY MANAGEMENT PLANNING 35.910–8 Allotments for Fiscal Years 1978–
(SECTION 205(J)(2)) 1981.
35.910–9 Allotment of Fiscal Year 1978 ap-
35.350 Purpose.
propriation.
35.360 Limitations.
propriation.
35.365 Awards to Indian Tribes.
PUBLIC WATER SYSTEM SUPERVISION (SECTION propriation.
1443(A)) 35.910–12 Reallotment of deobligated funds
of Fiscal Year 1978.
35.400 Purpose. 35.912 Delegation to State agencies.
35.405 Maximum Federal share. 35.915 State priority system and project pri-
35.410 Limitations. ority list.
35.415 Indian Tribes. 35.915–1 Reserves related to the project pri-
ority list.
UNDERGROUND WATER SOURCE PROTECTION
35.917 Facilities planning (step 1).
(SECTION 1443(B))
35.917–1 Content of facilities plan.
35.450 Purpose. 35.917–2 State responsibilities.
35.455 Maximum Federal share. 35.917–3 Federal assistance.
35.460 Limitations. 35.917–4 Planning scope and detail.
35.465 Indian Tribes. 35.917–5 Public participation.
393
35.917–6 Acceptance by implementing gov- 35.929–2 General requirements for all user
ernmental units. charge systems.
35.917–7 State review and certification of fa- 35.929–3 Implementation of the user charge
cilities plan. system.
35.917–8 Submission and approval of facili- 35.930 Award of grant assistance.
ties plan. 35.930–1 Types of projects.
35.917–9 Revision or amendment of facilities 35.930–2 Grant amount.
plan. 35.930–3 Grant term.
35.918 Individual systems. 35.930–4 Project scope.
35.918–1 Additional limitations on awards 35.930–5 Federal share.
for individual systems. 35.930–6 Limitation on Federal share.
35.918–2 Eligible and ineligible costs. 35.935 Grant conditions.
35.918–3 Requirements for discharge of 35.935–1 Grantee responsibilities.
effluents. 35.935–2 Procurement.
35.920 Grant application. 35.935–3 Property.
35.920–1 Eligibility. 35.935–4 Step 2 = 3 projects.
35.920–2 Procedure. 35.935–5 Davis-Bacon and related statutes.
35.920–3 Contents of application. 35.935–6 Equal employment opportunity.
35.925 Limitations on award. 35.935–7 Access.
35.925–1 Facilities planning. 35.935–8 Supervision.
35.925–2 Water quality management plans 35.935–9 Project initiation and completion.
and agencies. 35.935–10 Copies of contract documents.
35.925–3 Priority determination. 35.935–11 Project changes.
35.935–12 Operation and maintenance.
35.925–4 State allocation.
35.935–13 Submission and approval of user
35.925–5 Funding and other capabilities.
charge systems.
35.925–6 Permits.
35.935–14 Final inspection.
35.925–7 Design.
35.935–15 Submission and approval of indus-
35.925–8 Environmental review.
trial cost recovery system.
35.925–9 Civil rights. 35.935–16 Sewer use ordinance and evalua-
35.925–10 Operation and maintenance pro- tion/rehabilitation program.
gram. 35.935–17 Training facility.
35.925–11 User charges and industrial cost 35.935–18 Value engineering.
recovery. 35.935–19 Municipal pretreatment program.
35.925–12 Property. 35.935–20 Innovative processes and tech-
35.925–13 Sewage collection system. niques.
35.925–14 Compliance with environmental 35.936 Procurement.
laws. 35.936–1 Definitions.
35.925–15 Treatment of industrial wastes. 35.936–2 Grantee procurement systems;
35.925–16 Federal activities. State or local law.
35.925–17 Retained amounts for reconstruc- 35.936–3 Competition.
tion and expansion. 35.936–4 Profits.
35.925–18 Limitation upon project costs in- 35.936–5 Grantee responsibility.
curred prior to award. 35.936–6 EPA responsibility.
35.925–19 [Reserved] 35.936–7 Small and minority business.
35.925–20 Procurement. 35.936–8 Privity of contract.
35.925–21 Storm sewers. 35.936–9 Disputes.
35.926 Value engineering (VE). 35.936–10 Federal procurement regulations.
35.927 Sewer system evaluation and reha- 35.936–11 General requirements for sub-
bilitation. agreements.
35.927–1 Infiltration/inflow analysis. 35.936–12 Documentation.
35.927–2 Sewer system evaluation survey. 35.936–13 Specifications.
35.927–3 Rehabilitation. 35.936–14 Force account work.
35.927–4 Sewer use ordinance. 35.936–15 Limitations on subagreement
35.927–5 Project procedures. award.
35.928 Requirements for an industrial cost 35.936–16 Code or standards of conduct.
recovery system. 35.936–17 Fraud and other unlawful or cor-
35.928–1 Approval of the industrial cost re- rupt practices.
covery system. 35.936–18 Negotiation of subagreements.
35.928–2 Use of industrial cost recovery pay- 35.936–19 Small purchases.
ments. 35.936–20 Allowable costs.
35.928–3 Implementation of the industrial 35.936–21 Delegation to State agencies; cer-
cost recovery system. tification of procurement systems.
35.928–4 Moratorium on industrial cost re- 35.936–22 Bonding and insurance.
covery payments. 35.937 Subagreements for architectural or
35.929 Requirements for user charge system. engineering services.
35.929–1 Approval of the user charge system. 35.937–1 Type of contract (subagreement).
394
35.937–2 Public notice. Subpart H—Cooperative Agreements for
35.937–3 Evaluation of qualifications. Protecting and Restoring Publicly
35.937–4 Solicitation and evaluation of pro- Owned Freshwater Lakes
posals.
35.937–5 Negotiation. 35.1600 Purpose.
35.937–6 Cost and price considerations. 35.1603 Summary of clean lakes assistance
35.937–7 Profit. program.
35.937–8 Award of subagreement. 35.1605 Definitions.
35.937–9 Required solicitation and sub- 35.1605–1 The Act.
35.1605–2 Freshwater lake.
agreement provisions.
35.1605–3 Publicly owned freshwater lake.
35.937–10 Subagreement payments—archi-
35.1605–4 Nonpoint source.
tectural or engineering services. 35.1605–5 Eutrophic lake.
35.937–11 Applicability to existing con- 35.1605–6 Trophic condition.
tracts. 35.1605–7 Desalinization.
35.937–12 Subcontracts under subagreements 35.1605–8 Diagnostic-feasibility study.
for architectural or engineering services. 35.1605–9 Indian Tribe set forth at 40 CFR
35.938 Construction contracts (subagree- 130.6(d).
ments) of grantees. 35.1610 Eligibility.
35.938–1 Applicability. 35.1613 Distribution of funds.
35.938–2 Performance by contract. 35.1615 Substate agreements.
35.938–3 Type of contract. 35.1620 Application requirements.
35.938–4 Formal advertising. 35.1620–1 Types of assistance.
35.938–5 Negotiation of contract amend- 35.1620–2 Contents of applications.
ments (change orders). 35.1620–3 Environmental evaluation.
35.938–6 Progress payments to contractors. 35.1620–4 Public participation.
35.938–7 Retention from progress payments. 35.1620–5 State work programs and lake pri-
ority lists.
35.938–8 Required construction contract pro-
35.1620–6 Intergovernmental review.
visions.
35.1630 State lake classification surveys.
35.938–9 Subcontracts under construction
35.1640 Application review and evaluation.
contracts.
35.1640–1 Application review criteria.
35.939 Protests. 35.1650 Award.
35.940 Determination of allowable costs. 35.1650–1 Project period.
35.940–1 Allowable project costs. 35.1650–2 Limitations on awards.
35.940–2 Unallowable costs. 35.1650–3 Conditions on award.
35.940–3 Costs allowable, if approved. 35.1650–4 Payment.
35.940–4 Indirect costs. 35.1650–5 Allowable costs.
35.940–5 Disputes concerning allowable 35.1650–6 Reports.
costs. APPENDIX A TO SUBPART H—REQUIREMENTS
35.945 Grant payments. FOR DIAGNOSTIC-FEASIBILITY STUDIES AND
35.950 Suspension, termination or annul- ENVIRONMENTAL EVALUATIONS
ment of grants.
35.955 Grant amendments to increase grant Subpart I—Grants for Construction of
amounts. Treatment Works
35.960 Disputes.
35.965 Enforcement. 35.2000 Purpose and policy.
35.970 Contract enforcement. 35.2005 Definitions.
35.2010 Allotment; reallotment.
APPENDIX A TO SUBPART E—COST-EFFECTIVE-
35.2012 Capitalization grants.
NESS ANALYSIS GUIDELINES
35.2015 State priority system and project
APPENDIX B TO SUBPART E—FEDERAL GUIDE- priority list.
LINES—USER CHARGES FOR OPERATION
35.2020 Reserves.
AND MAINTENANCE OF PUBLICLY OWNED
35.2021 Reallotment of reserves.
TREATMENT WORKS 35.2023 Water quality management plan-
APPENDIX C–1 TO SUBPART E—REQUIRED PRO- ning.
VISIONS—CONSULTING ENGINEERING 35.2024 Combined sewer overflows.
AGREEMENTS 35.2025 Allowance and advance of allowance.
APPENDIX C–2 TO SUBPART E—REQUIRED PRO- 35.2030 Facilities planning.
VISIONS—CONSTRUCTION CONTRACTS 35.2032 Innovative and alternative tech-
APPENDIX D TO SUBPART E—EPA TRANSITION nologies.
POLICY—EXISTING CONSULTING ENGINEER- 35.2034 Privately owned individual systems.
ING AGREEMENTS 35.2035 Rotating biological contractor
APPENDIX E TO SUBPART E—INNOVATIVE AND (RBC) replacement grants.
ALTERNATIVE TECHNOLOGY GUIDELINES 35.2036 Design/build project grants.
35.2040 Grant application.
Subparts F–G [Reserved] 35.2042 Review of grant applications.
395
35.2050 Effect of approval or certification of 35.3030 Right of review of State decision.
documents. 35.3035 Public participation.
35.2100 Limitations on award.
35.2101 Advanced treatment. Subpart K—State Water Pollution Control
35.2102 Water quality management plan- Revolving Funds
ning.
35.2103 Priority determination. 35.3100 Policy and purpose.
35.2104 Funding and other considerations. 35.3105 Definitions.
35.2105 Debarment and suspension. 35.3110 Fund establishment.
35.2106 Plan of operation. 35.3115 Eligible activities of the SRF.
35.2107 Intermunicipal service agreements. 35.3120 Authorized types of assistance.
35.2108 Phased or segmented treatment 35.3125 Limitations on SRF assistance.
works. 35.3130 The capitalization grant agreement.
35.2109 Step 2=3. 35.3135 Specific capitalization grant agree-
35.2110 Access to individual systems. ment requirements.
35.2111 Revised water quality standards. 35.3140 Environmental review requirements.
35.2112 Marine discharge waiver applicants. 35.3145 Application of other Federal au-
35.2113 Environmental review. thorities.
35.2114 Value engineering. 35.3150 Intended Use Plan (IUP).
35.2116 Collection system. 35.3155 Payments.
35.2118 Preaward costs. 35.3160 Cash draw rules.
35.2120 Infiltration/Inflow. 35.3165 Reports and audits.
35.2122 Approval of user charge system and 35.3170 Corrective action.
proposed sewer use ordinance.
35.2123 Reserve capacity. APPENDIX A TO SUBPART K—CRITERIA FOR
35.2125 Treatment of wastewater from in- EVALUATING A STATE’S PROPOSED NEPA-
dustrial users. LIKE PROCESS
35.2127 Federal facilities.
35.2130 Sewer use ordinance. Subpart L [Reserved]
35.2140 User charge system.
35.2152 Federal share. Subpart M—Grants for Technical
35.2200 Grant conditions. Assistance
35.2202 Step 2=3 projects.
35.2203 Step 7 projects. 35.4000 Authority.
35.2204 Project changes. 35.4005 Purpose and availability of ref-
35.2205 Maximum allowable project cost. erenced material.
35.2206 Operation and maintenance. 35.4010 Definitions.
35.2208 Adoption of sewer use ordinance and 35.4013 Cost principles.
user charge system. 35.4015 State administration of the pro-
35.2210 Land acquisition. gram.
35.2211 Field testing for Innovative and Al- 35.4020 Responsibility requirements.
ternative Technology Report. 35.4025 Eligible applicants.
35.2212 Project initiation. 35.4030 Ineligible applicants.
35.2214 Grantee responsibilities. 35.4035 Evaluation criteria.
35.2216 Notice of building completion and 35.4040 Notification process.
final inspection. 35.4045 Submission of application.
35.2218 Project performance. 35.4050 Timing of award.
35.2250 Determination of allowable costs. 35.4055 Ineligible activities.
35.2260 Advance purchase of eligible land. 35.4060 Eligible activities.
35.2262 Funding of field testing. 35.4065 Technical advisor’s qualifications.
35.2300 Grant payments. 35.4066 Procurement.
35.2350 Subagreement enforcement. 35.4067 Contract review.
APPENDIX A TO SUBPART I—DETERMINATION 35.4070 Sanctions.
OF ALLOWABLE COSTS 35.4075 Pre-award costs.
APPENDIX B TO SUBPART I—ALLOWANCE FOR 35.4080 Method of payment.
FACILITIES PLANNING AND DESIGN 35.4085 Grant limitations.
35.4090 Waivers.
Subpart J—Construction Grants Program 35.4100 Disputes.
Delegation to States 35.4105 Record retention and audits.
35.4110 Reports.
35.3000 Purpose. 35.4115 Availability of information.
35.3005 Policy. 35.4120 Budget period.
35.3010 Delegation agreement. 35.4125 Federal facilities.
35.3015 Extent of State responsibilities. 35.4130 Conflict of interest and disclosure
35.3020 Certification procedures. requirements.
35.3025 Overview of State performance
under delegation. Subpart N [Reserved]
396
Subpart O—Cooperative Agreements and 35.6250 Support agency Cooperative Agree-

Superfund State Contracts for Super- ment requirements.
fund Response Actions 35.6255 Cost sharing.
GENERAL FINANCIAL ADMINISTRATION REQUIREMENTS

UNDER A COOPERATIVE AGREEMENT
35.6000 Authority.
35.6005 Purpose and scope. 35.6270 Standards for financial management
35.6010 Eligibility. systems.
35.6015 Definitions. 35.6275 Period of availability of funds.
35.6020 Other statutory provisions. 35.6280 Payments.
35.6025 Deviation from this subpart. 35.6285 Recipient payment of response costs.
35.6290 Program income.
PRE-REMEDIAL RESPONSE COOPERATIVE
AGREEMENTS PERSONAL PROPERTY REQUIREMENTS UNDER A
COOPERATIVE AGREEMENT
35.6050 Eligibility for pre-remedial Coopera-
tive Agreements. 35.6300 General personal property acquisi-
35.6055 State-lead pre-remedial Cooperative tion and use requirements.
Agreements. 35.6305 Obtaining supplies.
35.6060 Political subdivision-lead pre-reme- 35.6310 Obtaining equipment.
dial Cooperative Agreements. 35.6315 Alternative methods for obtaining
35.6070 Indian Tribe-lead pre-remedial Coop- property.
erative Agreements. 35.6320 Usage rate.
35.6325 Title and EPA interest in CERCLA-
REMEDIAL RESPONSE COOPERATIVE funded property.
AGREEMENTS 35.6330 Title to federally owned property.
35.6100 Eligibility for remedial Cooperative 35.6335 Property management standards.
Agreements. 35.6340 Disposal of CERCLA-funded prop-
35.6105 State-lead remedial Cooperative erty.
Agreements. 35.6345 Equipment disposal options.
35.6110 Indian Tribe-lead remedial Coopera- 35.6350 Disposal of federally owned prop-
tive Agreements. erty.
35.6115 Political subdivision-lead remedial REAL PROPERTY REQUIREMENTS UNDER A
Cooperative Agreements. COOPERATIVE AGREEMENT
35.6120 Notification of the out-of-State or
out-of-Indian Tribal jurisdiction transfer 35.6400 Acquisition and transfer of interest.
of CERCLA waste. 35.6405 Use.
ENFORCEMENT COOPERATIVE AGREEMENTS COPYRIGHT REQUIREMENTS UNDER A

35.6145 Eligibility for enforcement Coopera-
tive Agreements. 35.6450 General requirements.
35.6150 Activities eligible for funding under
enforcement Cooperative Agreements. USE OF RECIPIENT EMPLOYEES (‘‘FORCE AC-
35.6155 State, political subdivision or Indian COUNT’’) UNDER A COOPERATIVE AGREEMENT
Tribe-lead enforcement Cooperative 35.6500 General requirements.
Agreements.
PROCUREMENT REQUIREMENTS UNDER A
REMOVAL RESPONSE COOPERATIVE COOPERATIVE AGREEMENT
AGREEMENTS
35.6550 Procurement system standards.
35.6200 Eligibility for removal Cooperative 35.6555 Competition.
Agreements. 35.6560 Master list of debarred, suspended,
35.6205 Removal Cooperative Agreements. and voluntarily excluded persons.
CORE PROGRAM COOPERATIVE AGREEMENTS 35.6565 Procurement methods.
35.6570 Use of the same engineer during sub-
35.6215 Eligibility for Core Program Cooper- sequent phases of response.
ative Agreements. 35.6575 Restrictions on types of contracts.
35.6220 General. 35.6580 Contracting with minority and wom-
35.6225 Activities eligible for funding under en’s business enterprises (MBE/WBE),
Core Program Cooperative Agreements. small businesses, and labor surplus area
35.6230 Application requirements. firms.
35.6235 Cost sharing. 35.6585 Cost and price analysis.
35.6590 Bonding and insurance.
SUPPORT AGENCY COOPERATIVE AGREEMENTS
35.6595 Contract provisions.
35.6240 Eligibility for support agency Coop- 35.6600 Contractor claims.
erative Agreements. 35.6605 Privity of contract.
35.6245 Allowable activities. 35.6610 Contracts awarded by a contractor.
397
§ 35.001 40 CFR Ch. I (7–1–00 Edition)
REPORTS REQUIRED UNDER A COOPERATIVE AUTHORITY: 42 U.S.C. 4368b.
AGREEMENT
35.6650 Quarterly progress reports. § 35.001 Applicability.
35.6655 Notification of significant develop- This part codifies policies and proce-
ments. dures for financial assistance awarded
35.6660 Property inventory reports.
35.6665 Procurement reports.
by the Environmental Protection
35.6670 Financial reports. Agency to State, interstate, and local
agencies for pollution abatement and
RECORDS REQUIREMENTS UNDER A control programs. These provisions
COOPERATIVE AGREEMENT supplement the EPA general assistance
35.6700 Project records. regulations in 40 CFR part 30.
35.6705 Records retention.
35.6710 Records access. [47 FR 44954, Oct. 12, 1982]
OTHER ADMINISTRATIVE REQUIREMENTS FOR

COOPERATIVE AGREEMENTS
Subpart A—Financial Assistance
for Continuing Environmental
35.6750 Modifications.
35.6755 Monitoring program performance. Programs
35.6760 Enforcement and termination for
convenience. AUTHORITY: Secs. 105 and 301(a) of the
35.6765 Non-Federal audit. Clean Air Act, as amended (42 U.S.C. 7405 and
35.6770 Disputes. 7601(a)); Secs. 106, 205(g), 205(j), 208, 319,
35.6775 Exclusion of third-party benefits. 501(a), and 518 of the Clean Water Act, as
35.6780 Closeout. amended (33 U.S.C. 1256, 1285(g), 1285(j), 1288,
35.6785 Collection of amounts due. 1361(a) and 1377); secs. 1443, 1450, and 1451 of
35.6790 High risk recipients. the Safe Drinking Water Act (42 U.S.C. 300j–
2, 300j–9 and 300j–11); secs. 2002(a) and 3011 of
REQUIREMENTS FOR ADMINISTERING A
the Solid Waste Disposal Act, as amended by
SUPERFUND STATE CONTRACT (SSC)
the Resource Conservation and Recovery Act
35.6800 General. of 1976 (42 U.S.C. 6912(a), 6931, 6947, and 6949);
35.6805 Contents of an SSC. and secs. 4, 23, and 25(a) of the Federal Insec-
35.6815 Administrative requirements. ticide, Fungicide and Rodenticide Act, as
35.6820 Conclusion of the SSC. amended (7 U.S.C. 136(b), 136(u) and 136w(a)).
Subpart P—Financial Assistance for the SOURCE: 47 FR 44954, Oct. 12, 1982, unless
National Estuary Program otherwise noted.
35.9000 Applicability. § 35.100 Purpose.

35.9005 Purpose.
35.9010 Definitions.
This subpart establishes in §§ 35.100
35.9015 Summary of annual process. through 35.199 uniform administrative
35.9020 Planning targets. requirements and procedures for finan-
35.9030 Work program. cial assistance to State, interstate, and
35.9035 Budget period. local agencies for continuing environ-
35.9040 Application for assistance. mental programs. Sections 35.200
35.9045 EPA action on application. through 35.899 establish the assistance
35.9050 Assistance amount.
35.9055 Evaluation of recipient performance.
requirements unique to each program
35.9060 Maximum Federal share. and cross reference regulations con-
35.9065 Limitations. taining substantive program require-
35.9070 National program assistance agreements.
ments.
Subpart Q—General Assistance Grants to
Indian Tribes Allotment. An amount representing a
State’s share of funds requested in the
35.10000 Authority. President’s budget or appropriated by
35.10005 Purpose and scope. Congress for an environmental pro-
35.10010 Definitions. gram, as EPA determines after consid-
35.10015 Eligible recipients.
ering any factors indicated by this reg-
35.10020 Eligible activities.
35.10025 Limitations. ulation. The allotment is not an enti-
35.10030 Grant management. tlement but rather the objective basis
35.10035 Procurement under general assist- for determining the range for a State’s
ance agreements. planning target.
398
Continuation award. Any assistance environmental program (e.g., adminis-

award after the first award to a State, tration, enforcement, monitoring).
interstate, or local agency for a con- Recurrent expenditures, except for the
tinuing environmental program. purposes of section 105 of the Clean Air
Continuing environmental programs. Act (See §35.201), means those expendi-
Those pollution control programs tures associated with the activities of a
which will not be completed within a continuing environmental program. All
definable time period. expenditures, except those for equip-
Eligible Indian Tribe means: ment purchases with a unit acquisition
(1) For purposes of the Clean Water cost of $5,000 or more, are considered
Act, any federally recognized Indian recurrent unless justified by the appli-
Tribe that meets the requirements set cant as unique and approved as such by
forth at 40 CFR 130.6(d); and the Regional Administrator in the as-
(2) For purposes of the Clean Air Act, sistance award.
any federally recognized Indian Tribe Reserve. A portion of the State’s con-
that meets the requirements set forth struction grant allotment which the
at § 35.220. State proposes to set aside to use for
Federal Indian reservation means for construction or permit program man-
purposes of the Clean Water Act or the agement or water quality management
Clean Air Act, all land within the lim- planning activities.
its of any Indian reservation under the State means within the context of
jurisdiction of the United States gov- Public Water Systems Supervision and
ernment, notwithstanding the issuance Underground Water Source Protection
of any patent, and including rights-of- grants or of financial assistance pro-
way running through the reservation. grams under the Clean Water Act, one
Indian Tribe means: of the States of the United States, the
(1) Within the context of the Public District of Columbia, the Common-
Water System Supervision and Under- wealth of Puerto Rico, the Virgin Is-
ground Water Source Protection lands, Guam, American Samoa, the
grants, any Indian Tribe having a fed- Commonwealth of the Northern Mar-
erally recognized governing body car- iana Islands, the Trust Territories of
rying out substantial governmental du- the Pacific Islands or an eligible Indian
ties and powers over a defined area. Tribe.
(2) For purposes of the Clean Water Work program. The document which
Act, any Indian Tribe, band, group, or identifies how and when the applicant
community recognized by the Sec- will use program funds to produce spe-
retary of the Interior and exercising
cific outputs.
governmental authority over a Federal
Indian reservation. [47 FR 44954, Oct. 12, 1982, as amended at 53
(3) For purposes of the Clean Air Act, FR 37408, Sept. 26, 1988; 54 FR 14357, Apr. 11,
any Indian Tribe, band, nation, or 1989; 59 FR 13817, Mar. 23, 1994; 60 FR 371, Jan.
other organized group or community, 4, 1995; 63 FR 7270, Feb. 12, 1998]
including any Alaskan Native Village,
§ 35.110 Summary of annual process.
which is federally recognized as eligi-
ble for the special programs and serv- (a) EPA considers various factors to
ices provided by the United States to allot among the States the funds re-
Indians because of their status as Indi- quested in the President’s budget for
ans. each financial assistance program, ex-
Output. An activity or product which cept for those related to construction
the applicant agrees to complete dur- grants, for which Congress determines
ing the budget period. the allotments. From its construction
Planning target. The amount of Fed- grant allotment, the State proposes re-
eral financial assistance which the Re- serves for State administration and
gional Administrator suggests that an water quality management planning.
applicant consider in developing its ap- The Regional Administrator issues a
plication and work program. planning target for each program to
Program element. One of the major each applicant based on the reserves
groupings of outputs of a continuing and allotments.
399
§ 35.115 40 CFR Ch. I (7–1–00 Edition)
(b) Using the planning target and than 10 percent of the annual appro-
guidance provided by EPA, each appli- priation for section 105 grants.
cant completes a standard EPA appli- (b) Water pollution control allotment in-
cation including a proposed work pro- cluding ground-water protection allot-
gram for each environmental program ments (Clean Water Act, section 106):
for which it expects to receive EPA The extent of the State’s water pollu-
funding. Alternatively, an applicant tion problem. In each fiscal year, the
prepares a consolidated work program Administrator will reserve a percent-
to support several individual applica- age of the total available funds for eli-
tions or a single consolidated applica- gible Indian Tribes,
tion. After the applicant submits its (c) State administration reserve (Clean
application, the Regional Adminis-
Water Act, section 205(g)): Up to four
trator reviews it and, if it meets appli-
percent of the State’s authorized con-
cable requirements, approves the appli-
struction grant allotment as deter-
cation and agrees to make an award
when funds are available. The Regional mined by Congress or $400,000, which-
Administrator awards assistance from ever is greater.
funds appropriated by Congress for (d) Water quality management planning
that purpose. reserve (Clean Water Act, section
(c) The recipient conducts its activi- 205(j)(1)): Not less than $100,000 nor
ties according to the approved applica- more than one percent of the State’s
tion and assistance award. The Re- construction grant allotment as deter-
gional Administrator evaluates recipi- mined by Congress. However, for
ent performance to assure compliance Guam, the Virgin Islands, American
with all conditions of the assistance Samoa, the Trust Territories of the Pa-
award. cific Islands and the Northern Marina
(d) Except for funds reserved under Islands, a reasonable amount shall be
section 205 (g) and (j) of the Clean reserved for this purpose. Each fiscal
Water Act, the Administrator or Re- year the Administrator may reserve a
gional Administrator may use funds percentage of the sums appropriated
not awarded or committed to an appli- under section 207 for water quality
cant to supplement awards to other ap- management planning assistance to el-
plicants for that program or to support igible Indian Tribes,
a Federal program required in the ab- (e) Public Water System Supervision Al-
sence of an acceptable State program. lotment (Safe Drinking Water Act, sec-
§ 35.115 State allotments and reserves. tion 1443(a)): The State’s population,
geographic area, numbers of commu-
Allotments and reserves provide an nity and non-community water sys-
objective basis for establishing plan- tems, and other relevant factors. How-
ning targets and funding levels for
ever, no State, except American
work programs. Congress determines
Samoa, Guam, the Northern Mariana
the construction grant allotment, from
Islands, the Virgin Islands, or the
which the State proposes reserves for
State administration and water quality Trust Territory of the Pacific Islands
management planning. EPA deter- may be allotted less than one percent
mines the allotments for the other fi- of the total, except that for fiscal years
nancial assistance programs based on beginning after fiscal year 1989, to the
the President’s budget request to Con- extent that fiscal year appropriations
gress. The factors and limitations con- exceed the amount of fiscal year 1989
sidered for each program are as follows: appropriations, States shall share in
(a) Air pollution control allotment any excess based upon the grant for-
(Clean Air Act, section 105): Popu- mula in effect for such fiscal years.
lation, the extent of actual or potential (f) Ground-water Quality Protection Re-
air pollution problems, and the finan- serve (Clean Water Act, section 319(i)):
cial need of each agency to be funded Each fiscal year the Administrator
with the State’s allotment. However, may reserve for eligible Indian Tribes
no State shall have made available to one-third of one percent of the amount
it for application an allotment of less appropriated under section 319(j) for 319
than one-half of 1 percent nor more (h) and (i).
400
(g) Public Water System Supervision al- on the State’s allotment and the Re-
lotment (Safe Drinking Water Act, sec- gional Administrator’s evaluation of
tion 1443(a)): Population, geographic each applicant’s ability to use allotted
area, numbers of community and non- funds effectively.
community water systems and other
relevant factors. All jurisdictions ex- § 35.125 Program guidance.
cept American Samoa, Guam, the
Program guidance helps State and
Northern Mariana Islands, the Virgin
local agencies establish and maintain
Islands or an individual eligible Indian
Tribe shall be allotted at least one per- effective environmental programs
cent. Up to three percent of the Public which meet their particular needs and
Water System Supervision funds shall those of the national program. Na-
be reserved each year for use on Indian tional program managers in Head-
lands. quarters issue guidance to Regional
(h) Underground Water Source Protec- Administrators, and Regional Adminis-
tion allotment (Safe Drinking Water trators issue guidance to applicants.
Act, section 1443(b)): Population, geo- (a) Headquarters guidance to Regional
graphic area, extent of underground in- Administrators. Headquarters guidance
jection practices, and other relevant is based on the President’s annual
factors. Up to five percent of the Un- budget submission to Congress and the
derground Water Source Protection statutory and regulatory requirements
funds shall be reserved each year for for each environmental program. The
use on Indian lands. guidance contains a statement of na-
(i) Hazardous waste management allot- tional objectives and priorities, an ex-
ment (Solid Waste Disposal Act, as
planation of the activities required of
amended, section 3011): The extent to
the regions, and a list of program ele-
which hazardous waste is generated,
ments and associated outputs rec-
transported, treated, stored, and dis-
posed of in the State and the extent of ommended for State and local environ-
exposure of human beings and the envi- mental programs.
ronment to such waste, and such other (b) Regional guidance to applicants.
factors as the Administrator deems ap- Regional guidance is based on Head-
propriate. quarters guidance and the Regional Ad-
(j) Pesticide enforcement allotment ministrator’s knowledge of environ-
(Federal Insecticide, Fungicide, and mental problems in each State in his
Rodenticide Act, section 23): The region and evaluation of each appli-
State’s population, the numbers of pes- cant’s ability to carry out the pro-
ticide-producing establishments and gram. The guidance contains EPA’s ob-
certified private and commercial appli- jectives and priorities, the applicant’s
cators, and the number of farms and planning target, the program elements
their acreage. EPA uses for budget justification and
(k) Pesticide applicator certification management, categories of outputs
and training allotment (Federal Insecti- which should be part of the applicant’s
cide, Fungicide, and Rodenticide Act, work program, and special conditions
section 23): The number of farms and or limitations relevant to the appli-
numbers of private and commercial ap- cant.
plicators requiring certification or re-
certification. § 35.130 Work program.
[47 FR 44954, Oct. 12, 1982, as amended at 54 The work program is part of the ap-
FR 14357, Apr. 11, 1989; 54 FR 40368, Sept. 29,
1989; 57 FR 8074, Mar. 6, 1992; 59 FR 13817,
plication for financial assistance and is
Mar. 23, 1994; 60 FR 371, Jan. 4, 1995] the basis for the management and eval-
uation of performance under the assist-
§ 35.120 Planning targets. ance award. The work program must
The Regional Administrator develops specify the work years and amount and
planning targets to help each applicant source of funding estimated to be need-
develop a work program. A planning ed for each program element, the out-
target is the State’s reserve or is based puts committed to under each program
401
§ 35.135 40 CFR Ch. I (7–1–00 Edition)
element, including any outputs re- gram authority, organization, re-

quired under an authorization or dele- sources, and procedures.
gation agreement, a schedule for ac- (b) Conditional approval. The Regional
complishment of outputs, and an iden- Administrator may conditionally ap-
tification of the agency responsible for prove the application, after consulting
each of the elements and outputs. with the applicant, if only minor
changes are required. The Regional Ad-
§ 35.135 Budget period. ministrator will include in the award
An applicant may choose its budget the conditions which the applicant
period in consultation with and subject must meet to secure final approval and
to the approval of the Regional Admin- the date by which those conditions
istrator. must be met.
(c) Disapproval. If the application
§ 35.140 Application for assistance. cannot be approved or conditionally
Each applicant should submit a com- approved, the Regional Administrator
plete application at least 60 days before will negotiate with the applicant to
the beginning of the budget period. In change the output commitments, to re-
addition to meeting the requirements duce the assistance amount, or to
contained in part 30, a complete appli- make any other changes necessary for
cation must contain a discussion of approval. If negotiation fails, the Re-
performance to date under the existing gional Administrator will disapprove
award, the proposed work program, and the application in writing.
a list of all applicable EPA-approved
State strategies, program plans, and § 35.143 Assistance amount.
delegation or authorization agreements (a) Determining the assistance amount.
with a statement certifying that the In determining the amount of assist-
proposed work program is consistent ance to an applicant, the Regional Ad-
with them. ministrator will consider the State’s
planning target, the extent to which
§ 35.141 EPA action on application. the applicant’s work program is con-
The Regional Administrator will re- sistent with EPA guidance, and the an-
view each completed application and ticipated cost of the applicant’s pro-
should approve, conditionally approve, gram relative to the proposed outputs.
or disapprove it within 60 days of re- (b) Reduction of assistance amount. If
ceipt. When funds are available, the the Regional Administrator’s evalua-
Regional Administrator will award as- tion of the applicant’s work program
sistance based on an approved or condi- indicates that the proposed outputs do
tionally approved application. For a not justify the level of funding re-
continuation award made after the be- quested, the Regional Administrator
ginning of the approved budget period, will reduce the assistance amount. If
EPA will reimburse the applicant for the evaluation indicates that the pro-
allowable costs incurred from the be- posed outputs are not consistent with
ginning of the budget period, provided the priorities contained in EPA guid-
that such costs are contained in the ap- ance, the Regional Administrator may
proved application and that the appli- reduce the assistance amount.
cation was submitted before the expira-
tion of the prior budget period. § 35.145 Consolidated assistance.
(a) Approval. The Regional Adminis- Any applicant eligible to receive and
trator will approve the application administer funds from more than one
only if it satisfies the terms, condi- assistance program may submit an ap-
tions, and limitations of this subpart, plication for consolidated assistance,
40 CFR part 30, and relevant statutes following the process described in
and program regulations; if the pro- § 35.140. For consolidated assistance,
posed outputs are consistent with EPA the applicant prepares a single budget
guidance or otherwise demonstrated to and work program covering all pro-
be necessary and appropriate; and if grams included in the application. The
achievement of the proposed outputs is consolidated budget must identify each
feasible, considering the applicant’s ex- assistance program’s funds. The con-
isting problems, past performance, pro- solidated work program must identify
402
the extent to which each assistance (a) Funds remaining after initial award.
program’s funds support each program Funds remaining in a State’s allotment
element. Insular Areas which choose to after an initial assistance award and
consolidate program assistance may be commitment to that State for that
exempted from requirements of this year may be awarded by the Regional
subpart in accordance with Title V of Administrator to any eligible applicant
Pub. L. 95–134. during the Federal fiscal year. At the
end of the year, funds not awarded by
§ 35.150 Evaluation of recipient per- the Regional Administrator will be re-
formance. allocated by the Administrator to ac-
The Regional Administrator will complish the objectives of that pro-
oversee each recipient’s performance gram.
under an assistance agreement. In con- (1) The Regional Administrator may
sultation with the applicant, the Re- use such funds to make supplementary
gional Administrator will develop a awards to that State for that program.
process for evaluating the recipient’s (2) Subject to any limitations con-
performance. The Regional Adminis- tained in appropriations acts, the Re-
trator will include the schedule for gional Administrator may use such
evaluation in the assistance agreement funds to support a Federal program re-
and will evaluate recipient perform- quired by law in that State in the ab-
ance and progress toward completing sence of an acceptable State program.
the outputs in the approved work pro- (3) The Regional Administrator may
gram according to the schedule. The also use such funds to supplement
Regional Administrator will provide awards for that program to other eligi-
the evaluation findings to the recipient ble applicants within the Region.
and will include them in the official as- (b) Funds available because of no
sistance file. If the evaluation reveals award. Funds remaining in a State’s al-
that the recipient is not achieving one lotment because there is no assistance
award to that State in that year may
or more of the conditions of the assist-
be used in two ways.
ance agreement, the Regional Adminis-
(1) First, subject to any limitations
trator will attempt to resolve the situ-
contained in appropriations acts, the
ation through negotiation. If agree-
Regional Administrator may use such
ment is not reached, the Regional Ad-
funds to support a Federal program re-
ministrator may impose any of the
quired by law in that State in the ab-
sanctions in 40 CFR part 30.
sence of an acceptable State program.
§ 35.155 Reallocation. (2) Otherwise, the Administrator will
reallocate any available program funds
EPA has responsibility and authority to accomplish the objectives of that
for managing all financial assistance program.
funds effectively. To better achieve the (c) Public Water System Supervision
goals of the Clean Water Act, 205(g) re- and Underground Water Source Protec-
serves which have not been awarded tion funds reserved for use on Indian
will be returned to the State’s con- lands which are not awarded to specific
struction grant allotment to support Indian Tribes by February 1 of a fiscal
eligible construction activities except year, may be reallocated by the Admin-
as provided in paragraph (c) of this sec- istrator for supplementary awards to
tion; 205(j) reserves which have not eligible Indian Tribes or to EPA re-
been awarded during the period of gions for purposes of direct implemen-
availability to the State will be real- tation on Indian lands.
lotted to other States as construction (d) Beginning in FY 1990, on July 1 of
grant funds. These funds are adminis- each fiscal year, funds reserved under
tered under § 35.2010 of this subchapter sections 106, 205(j)(1), 205(j)(5), and 319
and are not available for reallocation of the Clean Water Act for eligible In-
under this section. For the other envi- dian Tribes, which have not been
ronmental programs, EPA will consider awarded by the Regional Adminis-
reallocating any unawarded funds to trator, shall be reallocated nationally
achieve the objectives for which Con- by the Administrator for awards to
gress appropriated them. other eligible Indian Tribes. Section
403
§ 35.200 40 CFR Ch. I (7–1–00 Edition)
319 and 205(j)(5) funds awarded to an In- recurrent unless justified by the appli-
dian Tribe treated as a State in a fiscal cant as nonrecurrent and approved in
year which are not obligated by the the assistance award or an amendment
end of the fiscal year shall be available thereto.
to the Administrator for reallocation [60 FR 371, Jan. 4, 1995]
to other such Tribes in the following
fiscal year. §35.205 Maximum Federal share.
[47 FR 44954, Oct. 12, 1982, as amended at 53 (a) The Regional Administrator may
FR 37409, Sept. 26, 1988; 54 FR 14358, Apr. 11, provide State, local, interstate, or
1989; 59 FR 13817, Mar. 23, 1994; 60 FR 2881, intermunicipal agencies up to three-
Jan. 12, 1995] fifths of the approved costs of imple-
menting programs for the prevention
AIR POLLUTION CONTROL (SECTION 105)
and control of air pollution or imple-
§ 35.200 Purpose. menting national primary and sec-
ondary ambient air quality standards.
Section 105 of the Clean Air Act au- Air pollution control agencies cur-
thorizes assistance to State, local, rently receiving grants and contrib-
interstate, or intermunicipal air pollu- uting less than the required minimum
tion control agencies (as defined in sec- of two-fifths of the approved program
tion 302(b) of the Act) to administer costs shall have until November 15, 1993
programs for the prevention and con- to increase their contribution to the
trol of air pollution or implementation required level.
of national air quality standards. Asso- (b) Subject to the conditions set
ciated program regulations are found forth below, the Regional Adminis-
in 40 CFR parts 50, 51, 52, 58, 60, 61, 62, trator may, at the request of the Gov-
and 81. ernor of a State or the Governor’s des-
ignee, or in the case of a local jurisdic-
§35.201 Definitions applicable to section, the authorized local official,
tion 105.
waive, for a 1–year period, all or a por-
For purposes of section 105 of the tion of the cost-sharing requirement of
Clean Air Act the following definitions paragraph (a) of this section. The Re-
are to be used in addition to the defini- gional Administrator may renew the
tions in §35.105; except that the defini- waiver for no more than 2 years so long
tion of ‘‘Recurrent expenditures’’ has as the total waiver period does not ex-
the meaning set forth below: ceed 3 years from the approval date of
Implementing means, within the con- a State’s permit program required
text of section 105 of the Clean Air Act, under section 502 of the Clean Air Act
as amended, any activity related to (Act).
planning, developing, establishing, car- (1) The waiver may be approved on a
rying-out, improving, or maintaining case-by-case basis and only when a
programs for the prevention and con- State or local government’s nonfederal
trol of air pollution or implementation contribution is reduced below the re-
of national primary and secondary am- quired two-fifths minimum as a result
bient air quality standards. of the redirection of its nonfederal air
Nonrecurrent expenditures means resources to meet the requirements of
those expenditures which are shown by section 502(b) of the Act.
the recipient to be of a nonrepetitive, (2) In applying for a waiver the Gov-
unusual, or singular nature such as ernor or the Governor’s designee, or in
would not reasonably be expected to the case of a local jurisdiction, the au-
recur in the foreseeable future. Costs thorized local official, must:
categorized as nonrecurrent must be (i) Describe the extent of fiscal and
approved in the assistance agreement programmatic impact on the agency’s
or an amendment thereto. All other ap- section 105 program as a result of the
proved project costs are deemed to be transfer of nonfederal resources to sup-
recurrent. port the program approved by EPA
Recurrent expenditures means those under section 502(b) of the Act.
expenses associated with the activities (ii) Provide documentation of the
of a continuing environmental pro- amount of the cost-sharing shortfall
gram. All expenditures are considered and the programmatic activities that
404
would not be able to be carried out if sponsibility for carrying out an appli-
the section 105 grant is reduced or not cable implementation plan under sec-
awarded as a result of a State or local tion 110 of the Clean Air Act, when
air pollution control agency’s inability such intertribal agency is authorized
to meet the cost-sharing requirements. by the governing bodies of those Tribes
(iii) Assure that there is no source of to apply for and receive financial as-
funding that may reasonably be used to sistance. After two years from the date
meet the cost-sharing requirement for of each intertribal agency’s initial
the affected grant budget period; and grant award, the Regional Adminis-
(iv) Assure that during the section trator will reduce the maximum Fed-
105 grant period the non-federal share eral share to 90 percent, as long as the
of the program costs will not be re- Regional Administrator determines
duced in an amount greater than that that the tribal members of the inter-
authorized by the waiver. tribal agency meet certain economic
(c) For Indian Tribes establishing eli- indicators that would provide an objec-
gibility pursuant to § 35.220(a), the Re- tive assessment of the Tribes’ ability
gional Administrator may provide fi- to increase the non-federal share. For
nancial assistance in an amount up to intertribal agencies made up of Indian
95 percent of the approved costs of
Tribes establishing eligibility pursuant
planning, developing, establishing, or
to § 35.220(a), which have substantial re-
improving an air pollution control pro-
sponsibility for carrying out an appli-
gram, and up to 95 percent of the ap-
cable implementation plan under sec-
proved costs of maintaining that pro-
tion 110 of the Clean Air Act, the Re-
gram. After two years from the date of
each Tribe’s initial grant award, the gional Administrator may increase the
Regional Administrator will reduce the maximum Federal share if the inter-
maximum Federal share to 90 percent, tribal agency can demonstrate in writ-
as long as the Regional Administrator ing to the satisfaction of the Regional
determines that the Tribe meets cer- Administrator that fiscal cir-
tain economic indicators that would cumstances within the member Tribes
provide an objective assessment of the are constrained to such an extent that
Tribe’s ability to increase its share. fulfilling the match would impose
The EPA will examine the experience undue hardship. This waiver provision
of this program and other relevant in- is designed to be very rarely used.
formation to determine appropriate (e) The Regional Administrator may
long-term cost share rates within five provide financial assistance in an
years of February 12, 1998. For Indian amount up to 60 percent of the ap-
Tribes establishing eligibility pursuant proved costs of planning, developing,
to § 35.220(a), the Regional Adminis- establishing, or improving an air pollu-
trator may increase the maximum Fed- tion control program, and up to sixty
eral share if the Tribe can demonstrate percent of the approved costs of main-
in writing to the satisfaction of the Re- taining that program to Tribes that
gional Administrator that fiscal cir- have not made a demonstration that
cumstances within the Tribe are con- they are eligible for treatment in the
strained to such an extent that ful- same manner as a State under 40 CFR
filling the match would impose undue 49.6, but are eligible for financial as-
hardship. This waiver provision is de- sistance under § 35.220(b).
signed to be very rarely used.
(d) The Regional Administrator may [60 FR 371, Jan. 4, 1995, as amended at 63 FR
7270, Feb. 12, 1998]
provide financial assistance in an
amount up to 95 percent of the ap- § 35.210 Maintenance of effort.
proved costs of planning, developing,
establishing, or approving an air pollu- (a) To receive funds under section
tion control program and up to 95 per- 105, an agency must expend annually
cent of the approved costs of maintain- for recurrent section 105 program ex-
ing that program to an intertribal penditures an amount of non-Federal
agency of two or more Tribes that have funds at least equal to such expendi-
established eligibility pursuant to tures during the preceding fiscal year,
§ 35.220(a), which has substantial re- unless the Regional Administrator,
405
§ 35.215 40 CFR Ch. I (7–1–00 Edition)
after notice and opportunity for a pub- States or areas within tribal jurisdic-
lic hearing, determines that the reduction if several are affected.
tion is attributable to a non-selective [63 FR 7270, Feb. 12, 1998]
reduction of the programs of all execu-
tive branch agencies of the applicable § 35.220 Eligible Indian Tribes.
unit of government. In order for the The Regional Administrator may
Regional Administrator to award make Clean Air Act section 105 grants
grants in a timely manner each fiscal to Indian Tribes establishing eligibility
year, the Regional Administrator shall under paragraph (a) of this section,
compare an agency’s proposed expendi- without requiring the same cost share
ture level, as detailed in the agency’s that would be required if such grants
application for grant assistance, to were made to States. Instead grants to
that agency’s expenditure level in the eligible Tribes will include a tribal cost
second preceding fiscal year. share of five percent for two years from
(b) The Regional Administrator will the date of each Tribe’s initial grant
not award section 105 funds unless the award. After two years, the Regional
applicant provides assurance that the Administrator will increase the tribal
assistance will not supplant non-Fed- cost share to ten percent, as long as
eral funds that would otherwise be the Regional Administrator determines
available for maintaining the section that the Tribe meets certain economic
105 program. indicators that would provide an objec-
(c) The requirements of paragraphs tive assessment of the Tribe’s ability
to increase its cost share. Notwith-
(a) and (b) of this section shall not
standing the above, the Regional Ad-
apply to Indian Tribes that have estab-
ministrator may reduce the required
lished eligibility pursuant to § 35.220(a) cost share of grants to Tribes that es-
and intertribal agencies made up of tablish eligibility under paragraph (a)
such Tribes. of this section if the Tribe can dem-
[47 FR 44954, Oct. 12, 1982, as amended at 60 onstrate in writing to the satisfaction
FR 372, Jan. 4, 1995; 63 FR 7270, Feb. 12, 1998] of the Regional Administrator that fis-
cal circumstances within the Tribe are
§ 35.215 Limitations. constrained to such an extent that ful-
(a) The Regional Administrator will filling the match would impose undue
hardship. This waiver provision is de-
not award section 105 funds to an inter-
signed to be very rarely used.
state, intertribal or intermunicipal
(a) An Indian Tribe is eligible to re-
agency which does not provide assur-
ceive financial assistance if it has dem-
ance that it can develop a comprehen- onstrated eligibility to be treated in
sive plan for the air quality control re- the same manner as a State under 40
gion which includes representation of CFR 49.6.
appropriate State, interstate, tribal, (b) An Indian Tribe that has not
local, and international interests. made a demonstration under 40 CFR
(b) The Regional Administrator will 49.6 is eligible for financial assistance
not award section 105 funds to a local, under 42 U.S.C. 7405 and 7602(b)(5).
interstate, intermunicipal, or inter- (c) The Administrator shall process a
tribal agency without consulting with tribal application for financial assist-
the appropriate official designated by ance under this section in a timely
the Governor or Governors of the State manner.
or States affected or the appropriate [63 FR 7271, Feb. 12, 1998]
official of any affected Indian Tribe or
Tribes. WATER POLLUTION CONTROL (SECTION
(c) The Regional Administrator will 106)
not disapprove an application for or
terminate or annul an award of section § 35.250 Purpose.
105 funds without prior notice and op- Sections 106 and 518 of the Clean
portunity for a public hearing in the Water Act authorize assistance to
affected State or area within tribal ju- State and interstate agencies (as de-
risdiction or in one of the affected fined in section 502 of the Act) and to
406
eligible Indian Tribes to administer and to the workload of State water pol-
programs for the prevention, reduction, lution control programs.
and elimination of water pollution, in- (f) The term element refers to one of
cluding programs for the development the constituent factors used to provide
and implementation of ground-water greater specificity to a component in
protection strategies. Some of these the Section 106 State allotment for-
activities may be eligible for funding mula. Certain components are com-
under section 205 (g) and (j) of that Act. posed of two or more ‘‘elements.’’ For
(See §§ 35.300 and 35.350.) Program re- example, the nonpoint source compo-
quirements for water quality planning nent of the Section 106 State allotment
and management activities are pro- formula is composed of an agricultural
vided in 40 CFR part 35, subpart G. element, a logging element, and an
abandoned mine element.
[47 FR 44954, Oct. 12, 1982, as amended at 54 (g) The term sub-element refers to one
FR 14358, Apr. 11, 1989; 59 FR 13817, Mar. 23,
of the constituent factors used to pro-
1994]
vide greater specificity to an element
§ 35.251 Definitions. in the Section 106 State allotment for-
mula. Certain elements are composed
As used herein, the following words of two or more ‘‘sub-elements.’’ For ex-
and terms shall have the meaning set ample, the abandoned mine element of
forth below: the nonpoint source component is com-
(a) The term allotment means the sum posed of a soft-rock mining sub-ele-
reserved for each State or interstate ment and a hard-rock mining sub-ele-
agency from funds appropriated by the ment.
Congress. The allotment is determined (h) The term funding floor refers to
by formula based on the extent of the the minimum amount of funding that a
water pollution problem in the respec- State will be allotted in any fiscal
tive States. It represents the maximum year.
amount of money potentially available (i) The term maximum level of funding
to the State or interstate agency for refers to the ceiling on the amount of
its program grant. funding that a State can be allotted in
(b) The term program grant means the any fiscal year.
amount of federal assistance awarded [64 FR 23736, May 3, 1999]
to a State or interstate agency under
Section 106 of the Clean Water Act to § 35.252 State and interstate allot-
assist in administering programs for ments.
the prevention, reduction and elimi- (a) Allotments. Each fiscal year funds
nation of water pollution. appropriated for States under Section
(c) The term State means a State, the 106 will be allotted to States and inter-
District of Columbia (DC), the Com- state agencies on the basis of the ex-
monwealth of Puerto Rico (PR), the tent of the pollution problems in the
U.S. Virgin Islands (VI), Guam (GU), respective States. A portion of the
American Samoa (AS), and the Com- funds available to States under the
monwealth of the Northern Mariana Is- Section 106 Grant Program will be set-
lands (CNMI). aside for allotment to eligible inter-
(d) The term interstate agency means state agencies. For FY 2000 and subse-
an agency that meets the requirements quent years, the interstate set-aside
of Section 502(2) of the Clean Water Act will be set at the level of 2.6 percent of
(CWA) and which is determined to be the total funds appropriated for States
eligible for receipt of a grant under under the Section 106 Grant Program.
CWA Section 106 and these regulations (b) State allotment formula. The Sec-
by the Administrator. tion 106 State allotment formula estab-
(e) The term component refers to one lishes an allotment ratio for each State
of the six factors selected for use in the based on six components selected to re-
Section 106 State allotment formula. flect the extent of the water pollution
Each component of the formula was se- problem in the respective States. A
lected based on its potential contribu- funding floor is established for each
tion to the extent of water pollution State with provisions for periodic ad-
problems within the respective States justments for inflation. The formula
407
§ 35.252 40 CFR Ch. I (7–1–00 Edition)
also provides for a maximum funding Area; Ground Water Use; Water Qual-
level that a State can receive in any ity Impairment; Point Sources;
fiscal year (150% of its previous fiscal Nonpoint Sources; and Population of
year allotment). Urbanized Area. The components for
(1) Components and component the formula are presented in Table 1 of
weights—(i) Components. The six com- this section, with their associated ele-
ponents used in the Section 106 State ments, sub-elements, and supporting
allotment formula are: Surface Water data sources.
408
(ii) Component weights. To account for nent is weighted individually. Final

the fact that not all of the selected for- component weights will be phased-in
mula components contribute equally to by FY 2004, according to the schedule
the extent of the pollution problem presented in Table 2 of this section:
within the States, each formula compo-
409
§ 35.252 40 CFR Ch. I (7–1–00 Edition)
TABLE 2.—COMPONENT WEIGHTS IN THE SECTION 106 STATE ALLOTMENT FORMULA

FY 2000 FY 2001 FY 2004+
Component (percent) (percent) (percent)
Surface Water Area ........................................................................................... 13 13 12

Ground Water Use ............................................................................................ 11 12 12
Water Quality Impairment ................................................................................. 13 25 35
Point Sources .................................................................................................... 25 17 13
Nonpoint Sources .............................................................................................. 18 15 13
Population of Urbanized Area ........................................................................... 20 18 15
Total ........................................................................................................... 100 100 100
(2) Funding floor. A funding floor is for all other States will be adjusted ac-
established for each State. Each cordingly.
State’s funding floor will be at least (7) Update cycle. The data used in the
equal to its FY 2000 allotment in all fu- State formula will be periodically up-
ture years unless the appropriation for dated. The first update will impact al-
States under the Section 106 Grant lotments for FY 2001, and will consist
Program decreases from its FY 2000 of updating the data used to support
level. the Water Quality Impairment compo-
(3) Funding decrease. If the appropria- nent of the State formula. These data
tion for the State Section 106 Grant will be updated using the most cur-
Program decreases in future years, the rently available CWA Section 305(b) re-
funding floor will be disregarded and ports. After this initial update, the
all States allotments will be reduced data used to support all six compo-
by an equal percentage. nents of the Section 106 State allot-
(4) Inflation adjustment. Funding ment formula will be updated in FY
floors for each State will be adjusted 2003 (for use in the determination of FY
for inflation when the appropriation 2004 allotments). Thereafter, all data
for the State Section 106 Grant Pro- will be updated every five years (i.e., in
gram increases from the preceding fis- FY 2008 for FY 2009 allotments, in FY
cal year. These adjustments will be 2013 for FY 2014 allotments, etc.) Note
made on the basis of the cumulative there will be an annual adjustment to
change in the Consumer Price Index the funding floor for all States, based
(CPI), published by the U.S. Depart- on the appropriation for the Section
ment of Labor, since the most recent 106 Grant Program and changes in the
year in which State Section 106 funding CPI.
last increased. Inflation adjustments to (c) Interstate allotment formula. EPA
State funding floors will be capped at will set-aside 2.6 percent of funds ap-
the lesser of the percentage change in propriated for States under the Section
appropriated funds or the cumulative 106 Grant Program for interstate agen-
percentage change in the inflation cies. The Section 106 interstate allot-
rate. ment formula consists of two parts: a
(5) Cap on annual funding increases. base allotment; and a variable allot-
The maximum allotment to any State ment.
will be 150 percent of that State’s allot- (1) Base allotment. Each eligible inter-
ment for the previous fiscal year. state agency is provided with $125,000
(6) Cap on component ratio. A compo- as a base allotment to help fund coordi-
nent ratio is equal to each State’s nation activities amongst its member
share of the national total of a single States. However, no more than 50 per-
component. The cap on each of the six cent of the total available interstate
State formula components ratios is 10 set-aside may be allocated as part of
percent. If a State’s calculated compo- the base allotment. If, given the 50 per-
nent ratio for a particular component cent limitation placed on the base al-
exceeds the 10 percent cap, the State lotment the amount of interstate set-
will instead be assigned 10 percent for aside funds is insufficient to provide
that component. The component ratios each interstate agency with $125,000,
410
then each interstate agency will re- meet the applicable quality assurance,
ceive a base allotment equal to 50 per- quality control requirements as speci-
cent of the total interstate set-aside di- fied in 40 CFR part 31.
vided by the total number of eligible (b) The Regional Administrator will
interstate agencies. not award section 106 funds to any
(2) Variable allotment. The variable al- State, including any eligible Indian
lotment provides for funds to be dis- Tribe, which does not have authority
tributed to interstate agencies on the comparable to that in section 504 of the
basis of ‘‘the extent of the pollution Clean Water Act and adequate contin-
problems in the respective States.’’ gency plans to implement such author-
Funds not allotted under the base al- ity.
lotment will be allotted to eligible (c) The Regional Administrator will
interstate agencies based on each not award section 106 funds if federally
interstate agency’s share of their mem- assumed enforcement as defined in sec-
ber States’ Section 106 formula allot- tion 309(a)(2) of the Clean Water Act is
ment ratios. Updates of the data for in effect with respect to the agency.
the six components of the Section 106 (d) The Regional Administrator will
State allocation formula will auto- not award section 106 funds unless the
matically result in corresponding up- work program submitted with the as-
dates to the variable allotment portion
sistance application shows that the ac-
of the interstate allotments. The allot-
tivities to be funded are coordinated,
ment ratios for those States involved
as appropriate, with activities proposed
in compacts with more than one inter-
for funding under section 205 (g) and (j)
state agency will be allocated amongst
of the Clean Water Act.
such interstate agencies based on the
percentage of each State’s territory [47 FR 44954, Oct. 12, 1982, as amended at 54
that is situated within the drainage FR 14358, Apr. 11, 1989; 59 FR 13817, Mar. 23,
basin or watershed area covered by 1994]
each compact.
§ 35.265 Awards to Indian Tribes.
[64 FR 23737, May 3, 1999]
(a) The Regional Administrator will
§ 35.255 Maintenance of effort. not award section 106 funds to an In-
(a) To receive funds under section dian Tribe unless EPA has determined
106, any State or interstate agency that the Indian Tribe meets the re-
must expend annually for recurrent quirements set forth at 40 CFR 130.6(d)
section 106 program expenditures an as well as the applicable limitations in
amount of non-Federal funds at least 40 CFR 35.260.
equal to expenditures during the fiscal (b) The Regional Administrator will
year ending June 30, 1971. not give a continuation award to any
(b) The maintenance of effort re- Indian Tribe unless the Tribe shows
quirement in paragraph (a) of this sec- satisfactory progress in meeting its ne-
tion shall not apply to eligible Indian gotiated milestones and goals.
Tribes. [54 FR 14358, Apr. 11, 1989, as amended at 59
[54 FR 14358, Apr. 11, 1989, as amended at 59 FR 13817, Mar. 23, 1994]
FR 13817, Mar. 23, 1994]
STATE ADMINISTRATION (SECTION 205(G))
§ 35.260 Limitations.
§ 35.300 Purpose.
not award section 106 funds to any Section 205(g) of the Clean Water Act
State which does not monitor and com- authorizes assistance to States (as de-
pile, analyze, and report water quality fined in section 502 of the Act) for two
data as described in section 106(e)(1) of purposes.
the Clean Water Act. The Regional Ad- (a) Construction management assist-
ministrator may award section 106 ance. The 205(g) funds may be used for
funds to eligible Indian Tribes even if administering elements of the con-
they do not meet this requirement. struction grant program under sections
However, all monitoring and analysis 201, 203, 204, and 212 of the Clean Water
activities performed by a Tribe must Act and for managing waste treatment
411
§ 35.305 40 CFR Ch. I (7–1–00 Edition)
construction grants for small commu- (c) The Regional Administrator will
nities. Construction management as- not award section 205(g) permit and
sistance funds may also be used for ad- planning assistance unless the work
ministering elements of a State’s con- program submitted with the assistance
struction grant program which are im- application shows that the activities to
plemented without Federal assistance, be funded are coordinated, as appro-
if the Regional Administrator deter- priate, with activities proposed for
mines that those elements are con- funding under sections 106 and 205(j) of
sistent with 40 CFR part 35, subpart I. the Clean Water Act.
Program requirements for State con-
struction management activities under WATER QUALITY MANAGEMENT
delegation are provided in 40 CFR part PLANNING (SECTION 205(J)(2))
35, subparts F and I.
(b) Permit and planning assistance. The § 35.350 Purpose.
205(g) funds may be used for admin-
istering permit programs under sec- Sections 205(j)(2) and 518 of the Clean
tions 402 and 404 and for administering Water Act authorize assistance to
statewide waste treatment manage- States (as defined in section 502 of the
ment planning programs under section Act) and to eligible Indian Tribes to
208(b)(4) of the Clean Water Act. Some carry out water quality management
of these activities may be eligible for planning activities. Some of these ac-
funding under sections 106 and 205(j) of tivities may be eligible for funding
that Act. (See §§ 35.250 and 35.350.) Pro- under sections 106 and 205(g) of that
gram requirements for water quality Act. (See §§ 35.250 and 35.300.) Program
management activities are provided in requirements for water quality man-
40 CFR part 35, subpart G. agement activities are provided in 40
CFR part 35, subpart G. The purpose of
§ 35.305 Maintenance of effort. 205(j) funds includes, but is not limited
To receive funds under section 205(g), to, the following.
a State agency must expend annually (a) Identification of the most cost-ef-
for recurrent section 106 program ex- fective and locally acceptable facility
penditures an amount of non-Federal and nonpoint measures to meet and
funds at least equal to such expendi- maintain water quality standards.
tures during fiscal year 1977, unless the
(b) Development of an implementa-
Regional Administrator determines
tion plan to obtain State and local fi-
that the reduction is attributable to a
non-selective reduction of expenditures nancial and regulatory commitments
in State executive branch agencies. to implement measures developed
under paragraph (a) of this section.
§ 35.310 Limitations. (c) Determination of the nature, ex-
(a) The Regional Administrator will tent, and causes of water quality prob-
not award section 205(g) funds for con- lems in various areas of the State and
struction management assistance un- interstate region.
less there is a signed agreement dele- (d) Determination of those publicly
gating responsibility for administra- owned treatment works which should
tion of those activities to the State. be constructed with Federal assistance,
(b) The Regional Administrator will in which areas and in what sequence,
not award section 205(g) permit and taking into account the relative degree
planning assistance before awarding of effluent reduction attained, the rel-
funds which provide for the manage- ative contributions to water quality of
ment of a substantial portion of con- other point or nonpoint sources, and
struction grants program. The max- the consideration of alternatives to
imum amount of permit and planning such construction.
assistance a State may receive is the (e) Implementation of section 303(e)
amount remaining in its reserve after
of the Clean Water Act.
the Regional Administrator allows for
full funding of the management of the [47 FR 44954, Oct. 12, 1982, as amended at 54
construction grant program under full FR 14358, Apr. 11, 1989; 59 FR 13817, Mar. 23,
delegation. 1994]
412
§ 35.355 Maximum Federal share. pervision Programs. Associated pro-

The Regional Administrator may gram regulations are found in 40 CFR
parts 141, 142, and 143.
provide up to one hundred percent of
the approved work program costs. [53 FR 37409, Sept. 26, 1988, as amended at 59
FR 13817, Mar. 23, 1994]
§ 35.360 Limitations.
§ 35.405 Maximum Federal share.
not award section 205(j)(1) funds to a (a) The Regional Administrator may
State agency unless the agency devel- provide up to seventy-five percent of
ops its work program jointly with the approved work program costs.
local, regional, and interstate agencies (b) The Regional Administrator may
and gives funding priority to such increase the 75 percent maximum Fed-
agencies and designated or undesig- eral share for an Indian Tribe based
nated public comprehensive planning upon application and demonstration by
organizations to carry out portions of the Tribe that it does not have ade-
that work program. quate funds (including Federal funds
(b) The Regional Administrator will authorized by statute to be used for
not award section 205(j)(1) funds to a matching purposes), Tribal funds, or
State agency which does not report an- in-kind contributions to meet the re-
nually on the nature, extent, and quired 25 percent Tribal match. In no
causes of water quality problems in case shall the Federal share be greater
various areas of the State and inter- than 90 percent.
state region. [47 FR 44954, Oct. 12, 1982, as amended at 53
(c) The Regional Administrator will FR 37409, Sept. 26, 1988]
not award section 205(j)(1) funds unless
the work program submitted with the § 35.410 Limitations.
assistance application shows that the (a) The Regional Administrator will
activities to be funded are coordinated, not make an initial award of section
as appropriate, with activities proposed 1443(a) funds unless the applicant has a
for funding under sections 106 and public water system supervision pro-
205(g) of the Clean Water Act. gram or will establish one within a
[47 FR 44954, Oct. 12, 1982, as amended at 54 year of the award and will assume pri-
FR 14358, Apr. 11, 1989] mary enforcement responsibility for
the State’s public water systems with-
§ 35.365 Awards to Indian Tribes. in that year.
(a)(1) The Regional Administrator (b) The Regional Administrator will
will not award section 205(j)(1) funds to not award section 1443(a) funds after
an Indian Tribe unless the Tribe meets the initial award unless the applicant
the requirements set forth at 40 CFR has primary enforcement responsi-
130.6(d), as well as the applicable limi- bility for the State’s public water sys-
tations in 40 CFR 35.360. tems.
(2) [Reserved] (c) The limitations in paragraphs (a)
(b) The Regional Administrator will and (b), of this section do not apply to
not give a continuation award to any funds allotted to Indian Tribes.
Indian Tribe unless the Tribe shows [47 FR 44954, Oct. 12, 1982, as amended at 53
satisfactory progress in meeting its ne- FR 37409, Sept. 26, 1988]
gotiated milestones and goals.
§ 35.415 Indian Tribes.
FR 13817, Mar. 23, 1994] (a) The Regional Administrator will
not award initial section 1443(a) funds
PUBLIC WATER SYSTEM SUPERVISION to an Indian Tribe unless:
(SECTION 1443(A)) (1) EPA has determined that the In-
dian Tribe meets the requirements of
§ 35.400 Purpose. 40 CFR part 142, subpart H; and
Sections 1443(a) and 1451(a)(3) of the (2) The applicant has a Public Water
Safe Drinking Water Act authorize as- System Supervision Program or agrees
sistance to States and eligible Indian to establish one within three years of
Tribes under Public Water System Su- the initial award and agrees to assume
413
§ 35.450 40 CFR Ch. I (7–1–00 Edition)
primary enforcement responsibility section 1443(b) funds unless the appli-

within this period. Upon agreement by cant has primary enforcement respon-
the applicant, at least one year of the sibility for the Underground Water
grant funding will be used to dem- Source Protection program. The above
onstrate program capability to imple- limitation shall not apply to funds al-
ment the requirements found in § 142.10. lotted to Indian Tribes.
(b) The Regional Administrator shall
not give a continuation award to any [53 FR 37409, Sept. 26, 1988]
Indian Tribe unless the Tribe can dem-
onstrate reasonable progress towards § 35.465 Indian Tribes.
assuming primary enforcement respon- (a) The Regional Administrator will
sibility within the three-year period. not award initial section 1443(b) funds
(c) After the three-year period ex- to an Indian Tribe unless:
pires, the Regional Administrator shall (1) EPA has determined that the In-
not award section 1443(a) funds to an dian Tribe meets the requirements of
Indian Tribe unless the Tribe has as- 40 CFR part 145 subpart E.
sumed primary enforcement responsi- (2) The applicant has an Underground
bility. Water Source Protection program or
[53 FR 37409, Sept. 26, 1988, as amended at 54 agrees to establish one within four
FR 52137, Dec. 20, 1989; 59 FR 13817, Mar. 23, years of the initial award and agrees to
1994] assume primary enforcement responsi-
bility within this period.
UNDERGROUND WATER SOURCE
(b) The Regional Administrator shall
PROTECTION (SECTION 1443(B))
not give a continuation award to any
§ 35.450 Purpose. Indian Tribe unless the Tribe can dem-
onstrate reasonable progress towards
Section 1443(b) of the Safe Drinking
assuming primary enforcement respon-
Water Act authorizes assistance to
sibility within the four-year period.
States and eligible Indian Tribes under
Underground Water Source Protection (c) After the four-year period expires,
Programs. Associated program regula- the Regional Administrator shall not
tions are found in 40 CFR parts 124, 144, award section 1443(b) funds to an In-
145, 146, and 147. dian Tribe unless the Tribe has as-
sumed primary enforcement responsi-
[53 FR 37409, Sept. 26, 1988, as amended at 59 bility.
FR 13817, Mar. 23, 1994]
§ 35.455 Maximum Federal share. FR 13817, Mar. 23, 1994]
(a) The Regional Administrator may
provide up to seventy-five percent of HAZARDOUS WASTE MANAGEMENT
the approved work program costs. (SECTION 3011)
(b) The Regional Administrator may
§ 35.500 Purpose.
increase the 75 percent maximum Fed-
eral share for an Indian Tribe based Section 3011(a) of the Solid Waste
upon application and demonstration by Disposal Act, as amended, authorizes
the Tribe that it does not have ade- assistance to States (as defined in sec-
quate funds (including Federal funds tion 1004 of the Act) for the develop-
authorized by statute to be used for ment and implementation of author-
matching purposes), Tribal funds, or ized State hazardous waste manage-
in-kind contributions to meet the re- ment programs. Associated program
quired 25 percent match requirement. regulations are found in 40 CFR parts
In no case shall the Federal share be 122, subparts A and B; 123, subparts A,
greater than 90 percent. B, and F; 124, subparts A and B; and
[47 FR 44954, Oct. 12, 1982, as amended at 53 260–266.
FR 37409, Sept. 26, 1988]
§ 35.460 Limitations. The Regional Administrator may
After September 30, 1983, the Re- provide up to seventy-five percent of
gional Administrator will not award the approved work program costs.
414
§ 35.510 Limitations. EPA-approved management programs

The Regional Administrator will not using funds reserved under section
award section 3011(a) funds in a State 205(j)(5) or funds appropriated under
with interim or final hazardous waste section 319. Under section 319(i), grants
may be awarded to carry out ground-
authorization unless the applicant is
water quality protection activities
the lead agency designated in the au-
that will advance the implementation
thorization agreement.
of a comprehensive approved nonpoint
PESTICIDE ENFORCEMENT (SECTION source management program.
23(A)(1)) [54 FR 14358, Apr. 11, 1989, as amended at 59
FR 13817, Mar. 23, 1994]
§ 35.550 Purpose.
Section 23(a)(1) of the Federal Insec- § 35.755 Awards to Indian Tribes.
ticide, Fungicide, and Rodenticide Act (a) No grants for the development of
authorizes assistance to States (as de- an approved nonpoint source manage-
fined in section 2 of the Act) and Indian ment program will be awarded to an In-
tribes to implement pesticide enforce- dian Tribe unless the Regional Admin-
ment programs. Associated program istrator determines that the Tribe
regulations are found in 40 CFR parts meets the requirements set forth at 40
162, 165–167, 169–170, and 172–173 and 19 CFR 130.6(d).
CFR part 12. (b) No funds for the implementation
of an approved nonpoint source man-
§ 35.555 Maximum Federal share. agement program will be awarded to an
The Regional Administrator may Indian Tribe unless:
provide up to one hundred percent of (1) The Regional Administrator de-
the approved work program costs. termines that the Indian Tribe meets
the requirements set forth at 40 CFR
PESTICIDE APPLICATOR CERTIFICATION 130.6(d).
AND TRAINING (SECTION 23(A)(2)) (2) The Tribe agrees to:
(i) Maintain its aggregate expendi-
§ 35.600 Purpose. tures from all other sources for pro-
Section 23(a)(2) of the Federal Insec- grams controlling pollution from
ticide, Fungicide, and Rodenticide Act nonpoint sources and improving the
authorizes assistance to States (as de- quality of navigable waters within the
fined in section 2 of the Act) and Indian Tribe’s jurisdiction at or above the av-
tribes to implement programs to train erage levels of such expenditures in the
and certify applicants of restricted use fiscal years 1985 and 1986;
pesticides. Associated program regula- (ii) Limit administrative costs for
tions are found in 40 CFR parts 162 and services provided and charged against
170–171. activities and programs carried out
with a grant under section 319(h) to no
§ 35.605 Maximum Federal share. more than 10 percent of the amount of
The Regional Administrator may the grant in any year, except that costs
provide up to fifty percent of the ap- of implementing enforcement and regu-
proved work program costs. latory activities, education, training,
technical assistance, demonstration
NONPOINT SOURCE MANAGEMENT projects, and technology transfer pro-
(SECTIONS 205(J)(5) AND 319(H)) grams are not subject to this limita-
tion; and
§ 35.750 Purpose. (iii) Provide a matching share in ac-
Sections 319 and 518 of the Clean cordance with 40 CFR 35.760;
Water Act authorize nonpoint source (iv) Use such funds for financial as-
management assistance to States, in- sistance to persons only to the extent
cluding eligible Indian Tribes. Under that such assistance is related to the
section 319(h), grants may be awarded costs of demonstration projects.
for the development of nonpoint source (v) Report to the Administrator on
management programs, using funds re- an annual basis concerning (A) its
served under section 205(j)(5) of the progress in meeting the schedule of
Act, and for the implementation of milestones submitted under section
415
§ 35.760 40 CFR Ch. I (7–1–00 Edition)
319(b)(2)(C) of the Act and (B) to the ex- the Act to any one Indian Tribe treated
tent that appropriate information is as a State shall not exceed 15 percent
available, reductions in nonpoint of the section 319(h) reserve for Tribes
source pollutant loading and improve- established under § 35.115(e).
ments in water quality for those navi- (e) In any fiscal year the amount of
gable waters or watersheds within the assistance awarded to any one Indian
jurisdiction of the Tribe which were Tribe treated as a State under section
identified under section 319(a)(1)(A) of 319(i), from funds appropriated under
the Act resulting from implementation section 319(j), shall not exceed $150,000.
of the management program.
(c) No funds to carry out ground- [54 FR 14359, Apr. 11, 1989]
water protection activities under sec-
tion 319(i) of the Act will be awarded to Subparts B–D [Reserved]
an Indian Tribe unless:
(1) The Regional Administrator de-
termines that the Tribe meets the re- Subpart E—Grants for Construction
quirements for treatment as a State in of Treatment Works—Clean
accordance with 40 CFR 130.6(d) and Water Act
130.15; and
(2) The Tribe agrees to provide a AUTHORITY: Secs. 109(b), 201 through 205,
matching share in accordance with 40 207, 208(d), 210 through 212, 215 through 217,
CFR 35.760. 304(d)(3), 313, 501, 502, 511, and 516(b) of the
(d) The Regional Administrator will Clean Water Act, as amended, 33 U.S.C. 1251
not give a nonpoint source manage- et seq.
ment continuation award to any Indian SOURCE: 43 FR 44049, Sept. 27, 1978, unless
Tribe unless the Tribe shows satisfac- otherwise noted.
tory progress in meeting its negotiated
milestones and goals. § 35.900 Purpose.
[54 FR 14359, Apr. 11, 1989, as amended at 59 (a) This subpart supplements the
FR 13817, Mar. 23, 1994] EPA general grant regulations and pro-
cedures (part 30 of this chapter) and es-
tablishes policies and procedures for
(a) The Regional Administrator may grants to assist in the construction of
provide up to 100 percent of approved waste treatment works in compliance
work program costs for the develop- with the Clean Water Act.
ment of a nonpoint source management (b) A number of provisions of this
program. subpart which contained transition
(b) Except as provided in paragraph
dates preceding October 1, 1978, have
(c) or (d) of this section, the Regional
been modified to delete those dates.
Administrator may provide to an In-
However, the earlier requirements re-
dian Tribe up to 60 percent of approved
main applicable to grants awarded
nonpoint source management imple-
when those provisions were in effect.
mentation program costs, and 50 per-
cent of approved ground-water protec- The transition provisions in former
tion program costs, on condition that §§ 35.905–4, 35.917, and 35.925–18 remain
the non-Federal share is provided from applicable to certain grants awarded
non-Federal sources. through March 31, 1981.
(c) The Regional Administrator may (c) Technical and guidance publica-
increase the maximum Federal shares tions (MCD series) concerning this pro-
upon application and demonstration by gram which are issued by EPA may be
the Tribe that it does not have ade- ordered from: General Services Admin-
quate funds (including Federal funds istration (8FFS), Centralized Mailing
authorized by statute to be used for List Services, Building 41, Denver Fed-
matching purposes, tribal funds or in- eral Center, Denver, Colo. 80225. In
kind contributions) to meet the re- order to expedite processing of re-
quired match. In no case shall the Fed- quests, persons desiring to obtain these
eral share be greater than 90 percent. publications should request a copy of
(d) In any fiscal year, the amount of EPA form 7500–21 (the order form list-
assistance awarded under section 319 of ing all available publications), from
416
EPA Headquarters, Municipal Con- (e) For each proposed grant, an appli-
struction Division (WH–547) or from cant must first submit his application
any regional office of EPA. to the State agency. The basic grant
application must meet the require-
§ 35.901 Program policy. ments for the project in § 35.920–3. If
The primary purpose of Federal grant grant assistance for subsequent related
assistance available under this subpart projects is necessary, the grantee shall
is to assist municipalities in meeting make submissions in the form of
enforceable requirements of the Act, amendments to the basic application.
particularly, applicable national pollu- The State agency will forward to the
tion discharge elimination system appropriate EPA Regional Adminis-
(NPDES) permit requirements. The Re- trator complete project applications or
gional Administrator and States are amendments to them for which the
authorized and encouraged to admin- State agency has determined priority.
ister this grant program in a manner The grant will consist of the grant
which will most effectively achieve the agreement resulting from the basic ap-
enforceable requirements of the Act. plication and grant amendments
awarded for subsequent related
§ 35.903 Summary of construction projects.
grant program. (f) Generally, grant assistance for
(a) The construction of federally fi- projects involving step 2 or 3 will not
nanced waste treatment works is gen- be awarded unless the Regional Admin-
erally accomplished in three steps: istrator first determines that the fa-
Step 1, facilities plans and related ele- cilities planning requirements of
ments; step 2, preparation of construc- §§ 35.917 to 35.917–9 of this subpart have
tion drawings and specifications; and been met. Facilities planning may not
step 3, building of a treatment works. be initiated prior to approval of a step
(b) The Regional Administrator may 1 grant or written approval of a ‘‘plan
award grant assistance for a step 1, of study’’ accompanied by a reserva-
step 2, or step 3 project, or, as author- tion of funds (see § 35.925–18 and defini-
ized by § 35.909, for a project involving a tion of ‘‘construction’’ in § 35.905).
combination of step 2 and step 3 (step (g) If initiation of step 1, 2, or 3 con-
2=3 grant). For a step 1, step 2, or step struction (see definition of ‘‘construc-
3 grant award, a ‘‘project’’ may consist tion’’ in § 35.905) occurs before grant
of an entire step or any ‘‘treatment award, costs incurred before the ap-
works segment’’ (see § 35.905) of con- proved date of initiation of construc-
struction within a step. In the case of tion will not be paid and award will not
step 2=3 grant awards, a project must be made except under the cir-
consist of all associated step 2 and step cumstances in § 35.925–18.
3 work; segmenting is not permitted. (h) The Regional Administrator may
(c) Grants are awarded from State al- not award grant assistance unless the
locations (see § 35.910 et seq.) under the application meets the requirements of
Act. No grant assistance may be § 35.920–3 and he has made the deter-
awarded unless priority for a project minations required by § 35.925 et seq.
has been determined in accordance (i) A grant or grant amendment
with an approved State priority system awarded for a project under this sub-
under § 35.915. The State is responsible part shall constitute a contractual ob-
for determining the amount and timing ligation of the United States to pay the
of Federal assistance to each munici- Federal share of allowable project
pality for which treatment works fund- costs up to the amount approved in the
ing is needed. grant agreement (including amend-
(d) An applicant will initially define ments) in accordance with § 35.930–6.
the scope of a project. The State may However, this obligation is subject to
revise this initial project scope when the grantee’s compliance with the con-
priority for the project is established. ditions of the grant (see § 35.935 et seq.)
The Regional Administrator will make and other applicable requirements of
the final determination of project this subpart.
scope when grant assistance is awarded (j) Sections 35.937–10, 35.938–6 and
(see § 35.930–4). 35.945 authorize prompt payment for
417
§ 35.905 40 CFR Ch. I (7–1–00 Edition)
project costs which have been incurred. istrative responsibilities for the Con-
The initial request for payment may struction Grants Program under sub-
cover the Federal share of allowable part F of this chapter.
costs incurred before the award except (p) Requirements regarding the
as otherwise provided in § 35.925–18. Be- award and administration of subagree-
fore the award of such assistance, the ments are set forth in §§ 35.935 through
applicant must claim in the applica- 35.939.
tion for grant assistance for that
project all allowable costs incurred be-
FR 10302, Feb. 16, 1979]
fore initiation of project construction.
An applicant may make no subsequent § 35.905 Definitions.
claim for payment for such costs. The
estimated amount of any grant or As used in this subpart, the following
grant amendment, including any prior words and terms mean:
costs, must be established in conjunc- Act. The Clean Water Act (33 U.S.C.
tion with determination of priority for 1251 et seq., as amended).
the project. The Regional Adminis- Ad valorem tax. A tax based upon the
trator must determine that the project value of real property.
costs are allowable under § 35.940 et seq. Combined sewer. A sewer intended to
(k) Under section 204(b) of the Act, serve as a sanitary sewer and a storm
the grantee must comply with applica- sewer, or as an industrial sewer and a
ble user charge and industrial cost re- storm sewer.
covery requirements; see §§ 35.925–11, Complete waste treatment system. A
35.928 et seq., 35.929 et seq., 35.935–13, complete waste treatment system con-
35.935–15, and appendix B to this sub- sists of all the treatment works nec-
part. essary to meet the requirements of
(l) The costs of sewage collection sys- title III of the Act, involved in: (a) The
tems for new communities, new sub- transport of waste waters from indi-
divisions, or newly developed urban vidual homes or buildings to a plant or
areas should be included as part of the facility where treatment of the waste
development costs of the new construc- water is accomplished; (b) the treat-
tion in these areas. Under section 211 of ment of the waste waters to remove
the Act, such costs will not be allowed pollutants; and (c) the ultimate dis-
under the construction grant program; posal, including recycling or reuse, of
see § 35.925–13. the treated waste waters and residues
(m) The approval of a plan of study which result from the treatment proc-
for step 1, a facilities plan, or award of ess. One complete waste treatment sys-
grant assistance for step 1, step 2, or tem would, normally, include one
step 3, or any segment thereof, will not treatment plant or facility, but also in-
constitute a Federal commitment for cludes two or more connected or inte-
grant assistance for any subequent grated treatment plants or facilities.
project. Construction. Any one or more of the
(n) Where justified, a deviation from following: Preliminary planning to de-
any substatutory requirement of this termine the feasibility of treatment
subpart may be granted under § 30.1000 works, engineering, architectural,
of this chapter. legal, fiscal, or economic investiga-
(o) The Act requires EPA and the tions or studies, surveys, designs,
States to provide for, encourage and plans, working drawings, specifica-
assist public participation in the Con- tions, procedures, or other necessary
struction Grants Program. This reactions, erection, building, acquisition,
quirement for public participation ap- alteration, remodeling, improvement,
plies to the development of the State or extension of treatment works, or the
water pollution control strategy, the inspection or supervision of any of the
State project priority system, and the foregoing items. The phrase initiation of
State project priority list, under construction, as used in this subpart
§ 35.915; to the development of user means with reference to a project for:
charge and industrial cost recovery (a) Step 1: The approval of a plan of
systems, under §§ 35.925.11, 35.928, and study (see §§ 35.920–3(a)(1) and 35.925–
35.929; and to the delegation of admin- 18(a));
418
(b) Step 2: The award of a step 2 Manual, 1972, Office of Management

grant; and Budget, as amended and supple-
(c) Step 3: Issuance of a notice to pro- mented under one of the following divi-
ceed under a construction contract for sions:
any segment of step 3 project work or,
Division A. Agriculture, Forestry, and Fish-
if notice to proceed is not required, ing.
execution of the construction contract. Division B. Mining.
Enforceable requirements of the Act. Division D. Manufacturing.
Those conditions or limitations of sec- Division E. Transportation, Communications,
tion 402 or 404 permits which, if vio- Electric, Gas, and Sanitary Services.
lated, could result in the issuance of a Division I. Services.
compliance order or initiation of a
civil or criminal action under section (1) In determining the amount of a
309 of the Act. If a permit has not been user’s discharge for purposes of indus-
issued, the term shall include any re- trial cost recovery, the grantee may
quirement which, in the Regional Ad- exclude domestic wastes or discharges
ministrator’s judgment, would be in- from sanitary conveniences.
cluded in the permit when issued. (2) After applying the sanitary waste
Where no permit applies, the term exclusion in paragraph (b)(1) of this
shall include any requirement which section (if the grantee chooses to do
the Regional Administrator determines so), dischargers in the above divisions
is necessary to meet applicable criteria that have a volume exceeding 25,000
for best practicable waste treatment gpd or the weight of biochemical oxy-
technology (BPWTT). gen demand (BOD) or suspended solids
Excessive infiltration/inflow. The quan- (SS) equivalent to that weight found in
tities of infiltration/inflow which can 25,000 gpd of sanitary waste are consid-
be economically eliminated from a ered industrial users. Sanitary wastes,
sewerage system by rehabilitation, as for purposes of this calculation of
determined in a cost-effectiveness equivalency, are the wastes discharged
analysis that compares the costs for from residential users. The grantee,
correcting the infiltration/inflow con- with the Regional Administrator’s ap-
ditions to the total costs for transpor- proval, shall define the strength of the
tation and treatment of the infiltra- residential discharges in terms of pa-
tion/inflow, subject to the provisions in rameters including, as a minimum,
§ 35.927. BOD and SS per volume of flow.
Industrial cost recovery. (a) The grant- (b) Any nongovernmental user of a
ee’s recovery from the industrial users publicly owned treatment works which
of a treatment works of the grant discharges waste water to the treat-
amount allocable to the treatment of ment works which contains toxic pol-
waste from such users under section lutants or poisonous solids, liquids, or
204(b) of the Act and this subpart. gases in sufficient quantity either sin-
(b) The grantee’s recovery from the gly or by interaction with other
commercial users of an individual sys- wastes, to contaminate the sludge of
tem of the grant amount allocable to any municipal systems, or to injure or
the treatment of waste from such users to interfere with any sewage treatment
under section 201(h) of the Act and this process, or which constitutes a hazard
subpart. to humans or animals, creates a public
Industrial cost recovery period. That nuisance, or creates any hazard in or
period during which the grant amount has an adverse effect on the waters re-
allocable to the treatment of wastes ceiving any discharge from the treat-
from industrial users is recovered from ment works.
the industrial users of such works. (c) All commercial users of an indi-
Industrial user. (a) Any nongovern- vidual system constructed with grant
mental, nonresidential user of a pub- assistance under section 201(h) of the
licly owned treatment works which dis- Act and this subpart. (See § 35.918(a)(3).)
charges more than the equivalent of Infiltration. Water other than waste
25,000 gallons per day (gpd) of sanitary water that enters a sewerage system
wastes and which is identified in the (including sewer service connections)
Standard Industrial Classification from the ground through such means
419
§ 35.905 40 CFR Ch. I (7–1–00 Edition)
as defective pipes, pipe joints, connec- waste water treatment services to the
tions, or manholes. Infiltration does general public, such as an airport,
not include, and is distinguished from, turnpike, port facility, or other munic-
inflow. ipal utility.
Infiltration/inflow. The total quantity (2) Any special district (such as
of water from both infiltration and in- school district or a park district) which
flow without distinguishing the source. has the responsibility to provide waste
Inflow. Water other than waste water water treatment services in support of
that enters a sewerage system (includ- its principal activity at specific facili-
ing sewer service connections) from ties, unless the special district has the
sources such as roof leaders, cellar responsibility under State law to pro-
drains, yard drains, area drains, foun- vide waste water treatment services to
dation drains, drains from springs and the community surrounding the special
swampy areas, manhole covers, cross district’s facility and no other munici-
connections between storm sewers and pality, with concurrent jurisdiction to
sanitary sewers, catch basins, cooling serve the community, serves or intends
towers, storm waters, surface runoff, to serve the special district’s facility
street wash waters, or drainage. Inflow or the surrounding community.
does not include, and is distinguished Operable treatment works. An operable
from, infiltration. treatment works is a treatment works
Interceptor sewer. A sewer whose pri- that:
mary purpose is to transport waste wa- (a) Upon completion of construction
ters from collector sewers to a treat- will treat waste water, transport waste
ment facility. water to or from treatment, or trans-
Interstate agency. An agency of two or port and dispose of waste water in a
more States established under an manner which will significantly im-
agreement or compact approved by the prove an objectionable water quality
Congress, or any other agency of two or situation or health hazard, and
more States, having substantial powers (b) Is a component part of a complete
or duties pertaining to the control of waste treatment system which, upon
water pollution. completion of construction for the
Municipality. A city, town, borough, complete waste treatment system (or
county, parish, district, association, or completion of construction of other
other public body (including an inter- treatment works in the system in ac-
municipal agency of two or more of the cordance with a schedule approved by
foregoing entities) created under State the Regional Administrator) will com-
law, or an Indian tribe or an authorized ply with all applicable statutory and
Indian tribal organization, having ju- regulatory requirements.
risdiction over disposal of sewage, in- Project. The scope of work for which a
dustrial wastes, or other waste, or a grant or grant amendment is awarded
designated and approved management under this subpart. The scope of work
agency under section 208 of the Act. is defined as step 1, step 2, or step 3 of
(a) This definition includes a special treatment works construction or seg-
district created under State law such ments (see definition of treatment works
as a water district, sewer district, sani- segment and § 35.930–4).
tary district, utility district, drainage Replacement. Expenditures for obtain-
district, or similar entity or an inte- ing and installing equipment, acces-
grated waste management facility, as sories, or appurtenances which are nec-
defined in section 201(e) of the Act, essary during the useful life of the
which has as one of its principal re- treatment works to maintain the ca-
sponsibilities the treatment, transport, pacity and performance for which such
or disposal of liquid wastes of the gen- works were designed and constructed.
eral public in a particular geographic The term operation and maintenance in-
area. cludes replacement.
(b) This definition excludes the fol- Sanitary sewer. A sewer intended to
lowing: carry only sanitary or sanitary and in-
(1) Any revenue producing entity dustrial waste waters from residences,
which has as its principal responsi- commercial buildings, industrial
bility an activity other than providing plants, and institutions.
420
Sewage collection system. For the pur- of such compost, and land used for the
pose of § 35.925–13, each, and all, of the storage of treated waste water in land
common lateral sewers, within a pub- treatment systems before land applica-
licly owned treatment system, which tion); or any other method or system
are primarily installed to receive waste for preventing, abating, reducing, stor-
waters directly from facilities which ing, treating, separating, or disposing
convey waste water from individual of municipal waste or industrial waste,
structures or from private property, including waste in combined storm
and which include service connection water and sanitary sewer systems.
‘‘Y’’ fittings designed for connection Treatment works segment. A treatment
with those facilities. The facilities works segment may be any portion of
which convey waste water from indian operable treatment works described
vidual structures, from private prop- in an approved facilities plan, under
erty to the public lateral sewer, or its
§ 35.917, which can be identified as a
equivalent, are specifically excluded
contract or discrete subitem or sub-
from the definition, with the exception
contract for step 1, 2, or 3 work. Com-
of pumping units, and pressurized lines,
pletion of construction of a treatment
for individual structures or groups of
works segment may, but need not, re-
structures when such units are cost ef-
fective and are owned and maintained sult in an operable treatment works.
by the grantee. Useful life. Estimated period during
State. A State, the District of Colum- which a treatment works will be oper-
bia, the Commonwealth of Puerto Rico, ated.
the Virgin Islands, Guam, American User charge. A charge levied on users
Samoa, the Trust Territory of the Pa- of a treatment works, or that portion
cific Islands, and the Commonwealth of of the ad valorem taxes paid by a user,
the Northern Marianas. for the user’s proportionate share of
State agency. The State water pollu- the cost of operation and maintenance
tion control agency designated by the (including replacement) of such works
Governor having responsibility for en- under sections 204(b)(1)(A) and 201(h)(2)
forcing State laws relating to the of the Act and this subpart.
abatement of pollution. Value engineering (VE). A specialized
Storm sewer. A sewer intended to cost control technique which uses a
carry only storm waters, surface run- systematic and creative approach to
off, street wash waters, and drainage. identify and to focus on unnecessarily
Treatment works. Any devices and sys- high cost in a project in order to arrive
tems for the storage, treatment, recy- at a cost saving without sacrificing the
cling, and reclamation of municipal reliability or efficiency of the project.
sewage, domestic sewage, or liquid in-
dustrial wastes used to implement sec- § 35.907 Municipal pretreatment pro-
tion 201 of the Act, or necessary to re- gram.
cycle or reuse water at the most eco- (a) The Regional Administrator is au-
nomical cost over the useful life of the thorized to provide grant assistance for
works. These include intercepting sew- the development of an approvable mu-
ers, outfall sewers, sewage collection nicipal pretreatment program as re-
systems, individual systems, pumping,
quired by part 403 of this chapter in
power, and other equipment and their
conjunction with a step 1, step 2, or
appurtenances; extensions, improve-
step 3 project.
ment, remodeling, additions, and alter-
ations thereof; elements essential to (b) The grantee is required to develop
provide a reliable recycled supply such a pretreatment program if the Re-
as standby treatment units and clear gional Administrator determines that:
well facilities; and any works, includ- (1) The municipal treatment works:
ing site acquisition of the land that (i) Serves industries subject to pro-
will be an integral part of the treat- posed or promulgated pretreatment
ment process or is used for ultimate standards under section 307(b) of the
disposal of residues resulting from such Act, or
treatment (including land for (ii) Expects to serve industries con-
composting sludge, temporary storage necting into the works in accordance
421
§ 35.908 40 CFR Ch. I (7–1–00 Edition)
with section 301(i)(2), where these in- (f) Information concerning the char-
dustries are subject to the section 307 acter and volume of pollutants dis-
(b) or (c) standards: and charged by industry to a municipal
(2) A work plan under a section 208 treatment works is to be provided to
planning grant has not provided for the the municipality by the industrial dis-
development of a program approvable charger under paragraph (d)(1) of this
under part 403 of this chapter. section. However, the costs of a limited
(c) A pretreatment program may be amount of end-of-pipe sampling and as-
required for municipal treatment sociated analysis of industrial dis-
works which receive other nondomestic charges to a municipal treatment
wastes covered by guidance issued works properly allocable to the mu-
under section 304(g) of the Act. nicipality are allowable if the grantee
(d) Development of an approvable obtains the prior written approval of
municipal pretreatment program under the Regional Administrator; see
part 403 of this chapter shall include: § 35.940–3(f).
(1) An industrial survey as required (g) The pretreatment program devel-
by § 403.8 of this chapter including iden- oped under paragraph (b) of this sec-
tification of system users, the char- tion is subject to the Regional Admin-
acter and volume of pollutants dis- istrator’s approval under § 35.935–19 and
charged, type of industry, location (see must be implemented in accordance
paragraph (f) of this section); with part 403 of this chapter.
(2) An evaluation of legal authority, § 35.908 Innovative and alternative
including adequacy of enabling legisla- technologies.
tion, and selection of mechanisms to be
used for control and enforcement (e.g., (a) Policy. EPA’s policy is to encour-
ordinance, joint powers agreement, age and, where possible, to assist in the
contract); development of innovative and alter-
native technologies for the construc-
(3) An evaluation of financial pro-
tion of waste water treatment works.
grams and revenue sources to insure
Such technologies may be used in the
adequate funding to carry out the
construction of waste water treatment
pretreatment program;
works under this subpart as § 35.915–1,
(4) A determination of technical in-
§ 35.930–5, appendix E, and this section
formation necessary to support devel-
provide. New technology or processes
opment of an industrial waste ordi-
may also be developed or demonstrated
nance or other means of enforcing
with the assistance of EPA research or
pretreatment standards;
demonstration grants awarded under
(5) Design of a monitoring enforce- Title I of the Act (see part 40 of this
ment program; subchapter).
(6) A determination of pollutant re- (b) Funding for innovative and altera-
movals in existing treatment works; tive technologies. (1) Projects or por-
(7) A determination of the treatment tions of projects which the Regional
works tolerance to pollutants which Administrator determines meet cri-
interfere with its operation, sludge use, teria for innovative or alternative
or disposal; technologies in appendix E may receive
(8) A determination of required moni- 85-percent grants (see § 35.930–5).
toring equipment for the municipal (i) Only funds from the reserve in
treatment works; § 35.915–1(b) shall be used to increase
(9) A determination of municipal fa- these grants from 75 to 85 percent.
cilities to be constructed for moni- (ii) Funds for the grant increase shall
toring or analysis of industrial waste. be distributed according to the chrono-
(e) Items (d) (6) and (7) of this section logical approval of grants, unless the
are grant eligible if necessary for the State and the Regional Administrator
proper design or operation of the mu- agree otherwise.
nicipal treatment works but are not (iii) The project must be on the
grant eligible when performed solely fundable portion of the State project
for the purpose of seeking an allowance priority list.
for removal of pollutants under § 403.7 (iv) If the project is an alternative to
of this chapter. conventional treatment works for a
422
Environmental Protection Agency § 35.910–1
small community (a municipality with (d) Sole source procurement. A deter-

a population of 3,500 or less or a highly mination by the Regional Adminis-
dispersed section of a larger munici- trator under this section that innova-
pality, as defined by the Regional Ad- tive criteria have been met will serve
ministrator), funds from the reserve in as the basis for sole source procure-
§ 35.915(e) may be used for the 75 per- ment (see § 35.936–13(b)) for step 3, if ap-
cent portion of the Federal grant. propriate, to achieve the objective of
(v) Only if sewer related costs qualify demonstrating innovative technology.
as alternatives to conventional treat-
ment works for small communities are § 35.909 Step 2=3 grants.
they entitled to the grant increase (a) Authority. The Regional Adminis-
from 75 to 85 percent, either as part of trator may award grant assistance for
the entire treatment works or as com- a step 2=3 project for the combination
ponents. of design (step 2) and construction
(2) A project or portions of a project (step 3) of a waste water treatment
may be designated innovative or alter- works.
native on the basis of a facilities plan (b) Limitations. The Regional Admin-
or on the basis of plans and specifica- istrator may award step 2=3 grant as-
tions. A project that has been des- sistance only if he determines that:
ignated innovative on the basis of the
(1) The population is 25,000 or less for
facilities plan may lose that desig-
the applicant municipality (according
nation if plans and specifications indi-
to most recent U.S. Census information
cate that it does not meet the appro-
or disaggregations thereof);
priate criteria stated in section 6 of ap-
pendix E. (2) The treatment works has an esti-
(3) Projects or portions of projects mated total step 3 construction cost of
that receive step 2, step 3, or step 2=3 $2 million or less, as determined by the
grant awards after December 27, 1977, Regional Administrator. For any State
from funds allotted or reallotted in fis- that the Assistant Administrator for
cal year 1978 may also receive the Water and Waste Management finds to
grant increase from funds allotted for have unusually high costs of construc-
fiscal year 1979 for eligible portions tion, the Regional Administrator may
that meet the criteria for alternative make step 2=3 awards where the esti-
technologies in appendix E, if funds are mated total step 3 construction costs
available for such purposes under of such treatment works does not ex-
§ 35.915–1(b). ceed $3 million. The project must con-
(c) Modification or replacement of inno- sist of all associated step 2 and step 3
vative and alternative projects. The Re- work; segmenting is not permitted; and
gional Administrator may award grant (3) The fundable range of the ap-
assistance to fund 100 percent of the el- proved project priority list includes the
igible costs of the modification or re- step 2 and step 3 work.
placement of any treatment works con- (c) Application requirements. Step 2=3
structed with 85-percent grant assist- projects are subject to all requirements
ance if: of this subpart that apply to separate
(1) He determines that: step 2 and step 3 projects except com-
(i) The facilities have not met design pliance with § 35.920–3(c) is not required
performance specifications (unless such before grant award. An applicant
failure is due to any person’s neg- should only submit a single applica-
ligence); tion.
(ii) Correction of the failure requires (d) Cross references. See §§ 35.920–3(d)
significantly increased capital or oper- (contents of application), 35.930–1(a)(4)
ating and maintenance expenditures; (types of projects) and 35.935–4 (grant
and conditions).
(iii) Such failure has occurred within
the 2-year period following final in- § 35.910 Allocation of funds.
spection; and
(2) The replacement or modification § 35.910–1 Allotments.
project is on the fundable portion of Allotments are made on a formula or
the State’s priority list. other basis which Congress specifies for
423
§ 35.910–2 40 CFR Ch. I (7–1–00 Edition)
each fiscal year. Except where Con- tially unallotted portion of the
gress indicates the exact amount of amounts authorized for fiscal years
funds which each State should receive, 1973 and 1974. Therefore, the portion of
computation of a State’s ratio will be the additional allotments derived from
carried out to the nearest ten-thou- this sum were computed by applying
sandth percent (0.0001 percent). Unless the percentages formerly set forth in
regulations for allotments for a spe- § 35.910–3(b) to the total sums author-
cific fiscal year otherwise specify, ized for fiscal years 1973 and 1974 ($11
alloted amounts will be rounded to the billion) and subtracting the previously
nearest thousand dollars. allotted sums, formerly set forth in
§ 35.910–3(c).
§ 35.910–2 Period of availability; real- (c) One-third of the sum hereby allot-
lotment. ted ($3 billion) represents the initially
(a) All sums allotted under § 35.910–5 unallotted portion of the amounts au-
shall remain available for obligation thorized for fiscal year 1975. Therefore,
within that State until September 30, the portion of the additional allot-
1978. Such funds which remain unobli- ments derived from this sum were com-
gated on October 1, 1978, will be imme- puted in a three-step process: First, by
diately reallotted in the same manner applying the percentages set forth in
as sums under paragraph (b) of this sec- § 35.910–4(b) to the total sums author-
tion. ized for fiscal year 1975 ($7 billion);
(b) All other sums allotted to a State then, by making adjustments nec-
under section 207 of the Act shall re- essary to assure that no State’s allot-
main available for obligation until the ment of such sums fell below its fiscal
end of 1 year after the close of the fis- year 1972 allotment, under Pub. L. 93–
cal year for which the sums were au- 243; and, finally, by subtracting the
thorized. Sums not obligated at the end previously allotted sums set forth in
of that period shall be immediately re- § 35.910–4(c).
allotted on the basis of the same ratio (d) Based upon the computations set
as applicable to sums allotted for the forth in paragraphs (b) and (c) of this
then-current fiscal year, but none of section, the total additional sums here-
the funds reallotted shall be made by allotted to the States are as follows:
available to any State which failed to State Allotment
obligate any of the funds being reallot-
ted. Any sum made available to a State Alabama ....................................................... $43,975,950
Alaska .......................................................... 25,250,500
by reallotment under this section shall Arizona ......................................................... 18,833,450
be in addition to any funds otherwise Arkansas ...................................................... 39,822,700
allotted to such State for grants under California ...................................................... 945,776,800
this subpart during any fiscal year. Colorado ...................................................... 43,113,300
Connecticut .................................................. 155,091,800
(c) Sums which are deobligated after Delaware ...................................................... 56,394,900
the reallotment date for those funds District of Columbia ..................................... 72,492,000
shall be treated in the same manner as Florida .......................................................... 345,870,100
Georgia ........................................................ 117,772,800
the most recent allotment before the Hawaii .......................................................... 51,903,300
deobligation. Idaho ............................................................ 19,219,100
Illinois ........................................................... 571,698,400
§§ 35.910–3—35.910–4 [Reserved] Indiana ......................................................... 251,631,800
Iowa ............................................................. 100,044,900
Kansas ......................................................... 53,794,200
§ 35.910–5 Additional allotments of pre- Kentucky ...................................................... 90,430,800
viously withheld sums. Louisiana ..................................................... 71,712,250
Maine ........................................................... 78,495,200
(a) A total sum of $9 billion is allot- Maryland ...................................................... 297,705,300
ted from sums authorized, but initially Massachusetts ............................................. 295,809,100
unallotted, for fiscal years 1973, 1974, Michigan ...................................................... 625,991,900
and 1975. This additional allotment Minnesota .................................................... 172,024,500
Mississippi ................................................... 38,735,200
shall be available for obligation Missouri ....................................................... 157,471,200
through September 30, 1977, before real- Montana ....................................................... 12,378,200
lotment of unobligated sums under Nebraska ..................................................... 38,539,500
Nevada ........................................................ 31,839,800
§ 35.910–2. New Hampshire ........................................... 77,199,350
(b) Two-thirds of the sum hereby al- New Jersey .................................................. 660,830,500
lotted ($6 billion) represents the ini- New Mexico ................................................. 15,054,900
424
State Allotment State Percent
New York ..................................................... 1,046,103,500 Florida .................................................................. 2.97

North Carolina ............................................. 110,345,000 Georgia ................................................................ 5.70
North Dakota ............................................... 2,802,000 Hawaii .................................................................. .60
Ohio ............................................................. 497,227,400 Idaho .................................................................... 1.06
Oklahoma .................................................... 64,298,700 Illinois ................................................................... 0
Oregon ......................................................... 77,582,900 Indiana ................................................................. 0
Pennsylvania ............................................... 498,984,900 Iowa ..................................................................... .37
Rhode Island ............................................... 45,599,600 Kansas ................................................................. 2.90
South Carolina ............................................. 82,341,900 Kentucky .............................................................. 2.70
South Dakota ............................................... 5,688,000 Louisiana ............................................................. 3.51
Tennessee ................................................... 107,351,400 Maine ................................................................... 0
Texas ........................................................... 174,969,850 Maryland .............................................................. 1.51
Utah ............................................................. 21,376,500 Massachusetts ..................................................... 0
Vermont ....................................................... 22,506,600 Michigan .............................................................. 0
Virginia ......................................................... 251,809,000 Minnesota ............................................................ 0
Washington .................................................. 103,915,600 Mississippi ........................................................... 2.65
West Virginia ............................................... 59,419,900 Missouri ............................................................... 1.47
Wisconsin .................................................... 145,327,400 Montana ............................................................... .63
Wyoming ...................................................... 2,930,650 Nebraska ............................................................. .77
Guam ........................................................... 6,399,200 Nevada ................................................................ .13
Puerto Rico .................................................. 84,910,500 New Hampshire ................................................... 0
Virgin Islands ............................................... 7,794,800 New Jersey .......................................................... 0
American Samoa ......................................... 738,200 New Mexico ......................................................... 1.13
Trust Territory of Pacific .............................. 2,672,800 New York ............................................................. 0
North Carolina ..................................................... 6.65
Total .................................................. 9,000,000,000 North Dakota ....................................................... 1.06
Ohio ..................................................................... 0
Oklahoma ............................................................ 3.64
§ 35.910–6 Fiscal Year 1977 public Oregon ................................................................. .28
works allotments. Pennsylvania ....................................................... 0
(a) The $480 million appropriated by Rhode Island ....................................................... 0
South Carolina ..................................................... 2.92
Public Law 94–447, 90 Stat. 1498, is South Dakota ....................................................... .89
available for obligation under the au- Tennessee ........................................................... 3.01
thority of title III of the Public Works Texas ................................................................... 18.46
Utah ..................................................................... 1.86
Employment Act of 1976 (Pub. L. 94–369, Vermont ............................................................... 0
90 Stat. 999), as provided by section 301 Virginia ................................................................. 0
of Public Law 94–369, to carry out title Washington .......................................................... 2.49
West Virginia ....................................................... 7.14
II of the Clean Water Act (other than Wisconsin ............................................................ 2.65
sections 206, 208, and 209). Allotments Wyoming .............................................................. .91
of these funds shall remain available Guam ................................................................... .30
Puerto Rico .......................................................... 1.22
until expended. Amounts allotted are Virgin Islands ....................................................... 0
in addition to the State’s last allot- American Samoa ................................................. .16
ment under the Clean Water Act and Trust Territory of Pacific ...................................... .98
are to be used for the same purpose.
Total .......................................................... 100.00
(b) The sum of $480 million has been
allotted to States identified in column (d) Based on these percentages, the
1 of the Table IV of the House Public total additional sums hereby allotted
Works and Transportation Committee to the States are as follows:
print numbered 94–25 based on percent-
ages shown in column 5 of that table. Allotments
from funds ap-
(c) The percentages referred to in State propriated
paragraph (b) of this section and used under Public
Law 94–447
in computing the State allotments set
forth in paragraph (d) of this section Alabama ......................................................... $23,520.000
are as follows: Alaska ............................................................ 4,368,000
Arizona ........................................................... 22,512,000
State Percent Arkansas ........................................................ 17,952,000
California ........................................................ 0
Alabama ............................................................... 4.90 Colorado ........................................................ 14,592,000
Alaska .................................................................. .91 Connecticut .................................................... 0
Arizona ................................................................. 4.69 Delaware ........................................................ 0
Arkansas .............................................................. 3.74 District of Columbia ....................................... 0
California .............................................................. 0 Florida ............................................................ 14,256,000
Colorado .............................................................. 3.04 Georgia .......................................................... 27,360,000
Connecticut .......................................................... 0 Hawaii ............................................................ 2,880,000
Delaware .............................................................. 0 Idaho .............................................................. 5,088,000
District of Columbia ............................................. 0 Illinois ............................................................. 0
425
§ 35.910–7 40 CFR Ch. I (7–1–00 Edition)
Allotments (2) 50 percent on each State’s partial

from funds ap- needs, i.e., on the cost of needed facili-
State propriated
under Public ties in categories I, II, and IVB (sec-
Law 94–447 ondary treatment, more stringent
Indiana ........................................................... 0 treatment required to meet water qual-
Iowa ............................................................... 1,776,000 ity standards, and interceptor sewers
Kansas ........................................................... 13,920,000
Kentucky ........................................................ 12,960,000
and pumping stations), as shown in
Louisiana ....................................................... 16,848,000 table IV of the May 6, 1975, EPA report,
Maine ............................................................. 0 ‘‘cost Estimates for Construction of
Maryland ........................................................ 7,248,000 Publicly Owned Waste Water Treat-
Massachusetts ............................................... 0
Michigan ........................................................ 0 ment Facilities—1974 Needs Survey’’;
Minnesota ...................................................... 0 (3) 25 percent on each State’s full
Mississippi ..................................................... 12,720,000 needs, i.e., on the cost of needed facili-
Missouri ......................................................... 7,056,000
Montana ......................................................... 3,024,000 ties in categories I, II, IIIA, IIIB, IVA,
Nebraska ....................................................... 3,696,000 IVB, and V (secondary treatment, more
Nevada .......................................................... 624,000 stringent treatment required to meet
New Hampshire ............................................. 0
New Jersey .................................................... 0 water quality standards, infiltration
New Mexico ................................................... 5,424,000 and inflow correction, major sewer sys-
New York ....................................................... 0 tem rehabilitation, collector sewers,
North Carolina ............................................... 31,920,000
North Dakota ................................................. 5,088,000 interceptor sewers, and pumping sta-
Ohio ............................................................... 0 tions, and treatment of combined sewer
Oklahoma ...................................................... 17,472,000 overflows), as shown in table V of the
Oregon ........................................................... 1,344,000
Pennsylvania ................................................. 0 EPA report noted in paragraph (b) (2)
Rhode Island ................................................. 0 of this section; and
South Carolina ............................................... 14,016,000 (4) An allotment adjustment to in-
South Dakota ................................................. 4,272,000
Tennessee ..................................................... 14,448,000
sure that no State receives less than
Texas ............................................................. 88,608,000 the one-third of 1 percent of the total
Utah ............................................................... 8,928,000 amount allocated.
Vermont ......................................................... 0
Virginia ........................................................... 0
(c) Based on paragraph (b) of this sec-
Washington .................................................... 11,952,000 tion, the total additional sums hereby
West Virginia ................................................. 34,272,000 allotted to the States are as follows:
Wisconsin ...................................................... 12,720,000
Wyoming ........................................................ 4,368,000 State Allotment
Guam ............................................................. 1,440,000
Puerto Rico .................................................... 5,856,000 Alabama ......................................................... $10,906,000
Virgin Islands ................................................. 0 Alaska ............................................................ 4,759,000
American Samoa ........................................... 768,000 Arizona ........................................................... 6,345,000
Trust Territory of Pacific ................................ 4,704,000 Arkansas ........................................................ 10,807,000
California ........................................................ 82,391,000
Total .................................................... 480,000,000 Colorado ........................................................ 8,031,000
Connecticut .................................................... 12,195,000
Delaware ........................................................ 3,966,000
§ 35.910–7 Fiscal Year 1977 Supple- District of Columbia ....................................... 3,966,000
mental Appropriations Act allot- Florida ............................................................ 35,792,000
ments. Georgia .......................................................... 19,929,000
Hawaii ............................................................ 6,940,000
(a) Under title I, chapter V of Public Idaho .............................................................. 4,065,000
Law 95–26, $1 billion is available for ob- Illinois ............................................................. 52,151,000
Indiana ........................................................... 21,713,000
ligation. The allotments are to be used Iowa ............................................................... 11,005,000
to carry out title II of the Act, exclud- Kansas ........................................................... 12,195,000
ing sections 206, 208, and 209. These al- Kentucky ........................................................ 14,971,000
Louisiana ....................................................... 12,493,000
lotments are available until expended Maine ............................................................. 5,453,000
but must be obligated by May 3, 1980. Maryland ........................................................ 37,874,000
After that date, unobligated balances Massachusetts ............................................... 27,662,000
Michigan ........................................................ 46,897,000
will be subject to reallotment under Minnesota ...................................................... 15,070,000
section 205 (b) of the Act (see § 35.910–2 Mississippi ..................................................... 7,535,000
(b)). Missouri ......................................................... 19,830,000
Montana ......................................................... 3,272,000
(b) The allotments, computed by pro- Nebraska ....................................................... 6,147,000
portionally adjusting the table on page Nevada .......................................................... 3,272,000
16 of Senate Report No. 95–38, are based New Hampshire ............................................. 6,742,000
on the following four factors: New Jersey .................................................... 47,591,000
New Mexico ................................................... 3,272,000
(1) 25 percent on the States estimated New York ....................................................... 105,294,000
1975 census population; North Carolina ............................................... 20,722,000
426
State Allotment Percent-

State age
North Dakota ................................................. 3,272,000
Ohio ............................................................... 55,522,000 New Hampshire ................................................... .8810
Oklahoma ...................................................... 13,484,000 New Jersey .......................................................... 3.5715
Oregon ........................................................... 8,328,000 New Mexico ......................................................... .3819
Pennsylvania ................................................. 46,698,000 New York ............................................................. 10.6209
Rhode Island ................................................. 3,966,000 North Carolina ..................................................... 1.9808
South Carolina ............................................... 13,088,000 North Dakota ....................................................... .3107
South Dakota ................................................. 3,272,000 Ohio ..................................................................... 6.4655
Tennessee ..................................................... 14,872,000 Oklahoma ............................................................ .9279
Texas ............................................................. 43,030,000 Oregon ................................................................. 1.2974
Utah ............................................................... 5,057,000 Pennsylvania ....................................................... 4.3616
Vermont ......................................................... 3,272,000 Rhode Island ....................................................... .5252
Virginia ........................................................... 22,011,000 South Carolina ..................................................... 1.1766
Washington .................................................... 15,368,000 South Dakota ....................................................... .3733
West Virginia ................................................. 21,614,000 Tennessee ........................................................... 1.5486
Wisconsin ...................................................... 19,929,000 Texas ................................................................... 4.3634
Wyoming ........................................................ 3,272,000 Utah ..................................................................... .4457
Guam ............................................................. 992,000 Vermont ............................................................... .3845
Puerto Rico .................................................... 8,923,000 Virginia ................................................................. 1.9602
Virgin Islands ................................................. 496,000 Washington .......................................................... 1.7688
American Samoa ........................................... 298,000 West Virginia ....................................................... 1.7903
Trust Territory of Pacific ................................ 1,983,000 Wisconsin ............................................................ 1.9503
Wyoming .............................................................. .3003
Total .................................................... 1,000,000,000 Guam ................................................................... .0744
Puerto Rico .......................................................... 1.1734
Virgin Islands ....................................................... .0378
§ 35.910–8 Allotments for fiscal years American Samoa ................................................. .0616
1978–1981. Trust Territory of Pacific ...................................... .1530
(a) Unless later legislation requires Total .......................................................... 100.00

otherwise, for each of the fiscal years
1978–1981, all funds appropriated under (b) Based on paragraph (a) of this sec-
authorizations in section 207 of the Act tion, and table 4 of the committee
will be distributed among the States print, the following authorizations are
based on the following percentages allotted among the States subject to
drawn from table 3 of Committee print the limitations of paragraph (c) of this
numbered 95–30 of the Committee on section:
Public Works and Transportation of
For each of
the House of Representatives: For fiscal year the fiscal
State 1978 years 1979,
Percent- 1980, 1981
State age
Alabama ............................ $57,789,000 $64,210,000
Alabama ............................................................... 1.2842 Alaska ................................ 19,057,500 21,175,000
Alaska .................................................................. .4235 Arizona .............................. 34,906,500 38,785,000
Arizona ................................................................. .7757 Arkansas ............................ 33,808,500 37,565,000
Arkansas .............................................................. .7513 California ............................ 357,804,000 397,560,000
California .............................................................. 7.9512 Colorado ............................ 41,341,500 45,935,000
Colorado .............................................................. .9187 Connecticut ........................ 49,824,000 55,360,000
Connecticut .......................................................... 1.1072 Delaware ............................ 17,982,000 19,980,000
Delaware .............................................................. .3996 District of Columbia ........... 14,368,500 15,965,000
District of Columbia ............................................. .3193 Florida ................................ 172,647,000 191,830,000
Florida .................................................................. 3.8366 Georgia .............................. 87,381,000 97,090,000
Georgia ................................................................ 1.9418 Hawaii ................................ 35,676,000 39,640,000
Hawaii .................................................................. .7928 Idaho .................................. 22,284,000 24,760,000
Idaho .................................................................... .4952 Illinois ................................. 233,743,500 259,715,000
Illinois ................................................................... 5.1943 Indiana ............................... 124,551,000 138,390,000
Indiana ................................................................. 2.7678 Iowa ................................... 58,288,500 64,765,000
Iowa ..................................................................... 1.2953 Kansas ............................... 39,613,500 44,015,000
Kansas ................................................................. .8803 Kentucky ............................ 65,781,000 73,090,000
Kentucky .............................................................. 1.4618 Louisiana ........................... 56,812,500 63,125,000
Louisiana ............................................................. 1.2625 Maine ................................. 33,727,500 37,475,000
Maine ................................................................... .7495 Maryland ............................ 124,996,500 138,885,000
Maryland .............................................................. 2.7777 Massachusetts ................... 132,939,000 147,710,000
Massachusetts ..................................................... 2.9542 Michigan ............................ 185,877,000 206,530,000
Michigan .............................................................. 4.1306 Minnesota .......................... 84,109,500 93,455,000
Minnesota ............................................................ 1.8691 Mississippi ......................... 43,470,000 48,300,000
Mississippi ........................................................... .9660 Missouri ............................. 112,306,500 124,785,000
Missouri ............................................................... 2.4957 Montana ............................. 15,624,000 17,360,000
Montana ............................................................... .3472 Nebraska ........................... 24,772,500 27,525,000
Nebraska ............................................................. .5505 Nevada .............................. 18,621,000 20,690,000
Nevada ................................................................ .4138 New Hampshire ................. 39,645,000 44,050,000
427
§ 35.910–9 40 CFR Ch. I (7–1–00 Edition)
For each of amount needed, the following States

For fiscal year the fiscal will share in any funds appropriated for
State 1978 years 1979,
1980, 1981 the purposes of this paragraph in the
following percentages, drawn from the
New Jersey ........................ 160,717,500 178,575,000
New Mexico ....................... 17,185,500 19,095,000 note to table 3 of committee print
New York ........................... 477,940,500 531,045,000 numbered 95–30 of the Committee on
North Carolina ................... 89,136,000 99,040,000 Public Works and Transportation of
North Dakota ..................... 13,981,500 15,535,000
Ohio ................................... 290,947,500 323,275,000 the House of Representatives:
Oklahoma .......................... 41,755,500 46,395,000
Oregon ............................... 58,383,000 64,870,000 Percent-
State age
Pennsylvania ..................... 196,272,000 218,080,000
Rhode Island ..................... 23,634,000 26,260,000 Alaska .................................................................. 5.4449
South Carolina ................... 52,947,000 58,830,000 Delaware .............................................................. 7.1459
South Dakota ..................... 16,798,500 18,665,000 District of Columbia ............................................. 12.8612
Tennessee ......................... 69,687,000 77,430,000 Idaho .................................................................... .3416
Texas ................................. 196,353,000 218,170,000 Montana ............................................................... 10.8755
Utah ................................... 20,056,500 22,285,000 Nevada ................................................................ 6.1352
Vermont ............................. 17,302,500 19,225,000 New Mexico ......................................................... 8.4057
Virginia ............................... 88,209,000 98,010,000 North Dakota ....................................................... 13.4733
Washington ........................ 79,596,000 88,440,000 South Dakota ....................................................... 9.0178
West Virginia ..................... 80,563,500 89,515,000 Utah ..................................................................... 3.8648
Wisconsin .......................... 87,763,500 97,515,000 Vermont ............................................................... 8.2206
Wyoming ............................ 13,513,500 15,015,000 Wyoming .............................................................. 14.2135
Guam ................................. 3,348,000 3,720,000
Puerto Rico ........................ 52,803,000 58,670,000 Total .......................................................... 100.0000
Virgin Islands ..................... 1,701,000 1,890,000
American Samoa ............... 2,772,000 3,080,000
Trust Territory of the Pa- § 35.910–9 Allotment of Fiscal Year
cific Islands .................... 6,885,000 7,650,000 1978 appropriation.
Total ........................ 4,500,000,000 5,000,000,000 (a) Public Law 95–240 appropriated
$4.5 billion. These allotments are avail-
(c) The authorizations in paragraph able until expended but must be obli-
(b) of this section depend on appropria- gated by September 30, 1979. After that
tion. Therefore, the Regional Adminis- date unobligated balances will be real-
trator may not obligate any portion of lotted under section 205(b) of the Act
any authorization for a fiscal year (see § 35.910–2(b)).
until a law is enacted appropriating (b) These sums were allotted to the
part or all of the sums authorized for States as shown in § 35.910–8(b).
that fiscal year. If sums appropriated
[43 FR 56200, Nov. 30, 1978]
are less than the sums authorized for a
fiscal year, EPA will apply the percent- § 35.910–10 Allotment of Fiscal Year
ages in paragraph (a) of this section to 1979 appropriation.
distribute all appropriated sums among
(a) Title II of Public Law 95–392 ap-
the States, and promptly will notify
propriated $4.2 billion. These allot-
each State of its share. The Regional
ments are available until expended but
Administrator may not obligate more
must be obligated by September 30,
than the State’s share of appropriated
1980. After that date, unobligated bal-
sums.
ances will be reallotted under section
(d) If supplementary funds are appro-
205(b) of the Act (see § 35.910–2(b)).
priated in any fiscal year under section
(b) The allotments were computed by
205(e) of the Act to carry out the pur-
applying the percentages in § 35.910–8(a)
poses of this paragraph, no State shall
and (b) to the funds appropriated for
receive less than one-half of 1 percent
FY 1979 and rounding to the nearest
of the total allotment among all States
hundred dollars.
for that fiscal year, except that in the
(c) The $4.2 billion are allotted as fol-
case of Guam, the Virgin Islands,
lows:
American Samoa, and the Trust Terri-
tories not more than thirty-three one- Allotments
hundredths of 1 percent of the total al- from funds ap-
State propriated
lotment shall be allotted to all four of under Pub. L.
those jurisdictions. If for any fiscal 95–392
year the amount appropriated to carry Alabama ......................................................... $53,189,100
out this paragraph is less than the full Alaska ............................................................ 20,709,000
428
Allotments 1981. After that date, unobligated bal-

from funds ap- ances will be reallotted under section
State propriated
under Pub. L. 205(b) of the Act (see § 35.910–2(b)).
95–392 (b) The allotments were computed by
Arizona ........................................................... 32,128,000 applying the percentages in § 35.910–8
Arkansas ........................................................ 31,117,400 (a) and (d) to the funds appropriated for
California ........................................................ 329,323,400 FY 1980 and rounding to the nearest
Colorado ........................................................ 38,050,800
Connecticut .................................................... 45,858,100 hundred dollars.
Delaware ........................................................ 20,709,000 (c) The $3.4 billion are alloted as fol-
District of Columbia ....................................... 20,709,000 lows:
Florida ............................................................ 158,904,600
Georgia .......................................................... 80,425,600 Allotments
Hawaii ............................................................ 32,836,300 from funds ap-
Idaho .............................................................. 20,709,000 State propriated
Illinois ............................................................. 215,137,900 under Pub. L.
Indiana ........................................................... 114,637,000 95–372
Iowa ............................................................... 53,648,800
Kansas ........................................................... 36,460,300 Alabama ......................................................... $43,057,800
Kentucky ........................................................ 60,545,000 Alaska ............................................................ 16,764,500
Louisiana ....................................................... 52,290,300 Arizona ........................................................... 26,008,400
Maine ............................................................. 31,042,900 Arkansas ........................................................ 25,190,300
Maryland ........................................................ 115,047,000 California ........................................................ 266,595,100
Massachusetts ............................................... 122,357,300 Colorado ........................................................ 30,803,000
Michigan ........................................................ 171,081,500 Connecticut .................................................... 37,123,200
Minnesota ...................................................... 77,414,600 Delaware ........................................................ 16,764,500
Mississippi ..................................................... 40,009,900 District of Columbia ....................................... 16,764,500
Missouri ......................................................... 103,367,100 Florida ............................................................ 128,637,000
Montana ......................................................... 20,709,000 Georgia .......................................................... 65,106,400
Nebraska ....................................................... 22,800,700 Hawaii ............................................................ 26,581,700
Nevada .......................................................... 20,709,000 Idaho .............................................................. 16,764,500
New Hampshire ............................................. 36,489,300 Illinois ............................................................. 174,159,300
Indiana ........................................................... 92,801,300
New Jersey .................................................... 147,924,700
Iowa ............................................................... 43,430,000
New Mexico ................................................... 20,709,000
Kansas ........................................................... 29,515,500
New York ....................................................... 439,897,200
Kentucky ........................................................ 49,012,600
North Carolina ............................................... 82,040,900
Louisiana ....................................................... 42,330,300
North Dakota ................................................. 20,709,000
Maine ............................................................. 25,129,900
Ohio ............................................................... 267,788,600
Maryland ........................................................ 93,133,300
Oklahoma ...................................................... 38,431,900
Massachusetts ............................................... 99,051,100
Oregon ........................................................... 53,735,800
Michigan ........................................................ 138,494,500
Pennsylvania ................................................. 180,649,100 Minnesota ...................................................... 62,668,900
Rhode Island ................................................. 21,752,800 Mississippi ..................................................... 32,388,900
South Carolina ............................................... 48,732,500 Missouri ......................................................... 83,678,100
South Dakota ................................................. 20,709,000 Montana ......................................................... 16,764,500
Tennessee ..................................................... 64,140,000 Nebraska ....................................................... 18,457,700
Texas ............................................................. 180,723,600 Nevada .......................................................... 16,764,500
Utah ............................................................... 20,709,000 New Hampshire ............................................. 29,539,000
Vermont ......................................................... 20,709,000 New Jersey .................................................... 119,748,500
Virginia ........................................................... 81,187,700 New Mexico ................................................... 16,764,500
Washington .................................................... 73,260,300 New York ....................................................... 356,107,300
West Virginia ................................................. 74,150,800 North Carolina ............................................... 66,414,100
Wisconsin ...................................................... 80,777,700 North Dakota ................................................. 16,764,500
Wyoming ........................................................ 20,709,000 Ohio ............................................................... 216,781,200
American Samoa ........................................... 2,551,400 Oklahoma ...................................................... 31,111,500
Guam ............................................................. 3,081,500 Oregon ........................................................... 43,500,400
Northern Mariana Islands .............................. 570,300 Pennsylvania ................................................. 146,239,700
Puerto Rico .................................................... 48,600,000 Rhode Island ................................................. 17,609,400
Trust Territory of Pacific ................................ 5,766,700 South Carolina ............................................... 39,450,100
Virgin Islands ................................................. 1,565,600 South Dakota ................................................. 16,764,500
Tennessee ..................................................... 51,922,900
Total .................................................... 4,200,000,000 Texas ............................................................. 146,300,100
Utah ............................................................... 16,764,500
Vermont ......................................................... 16,764,500
[43 FR 56201, Nov. 30, 1978, as amended at 44 Virginia ........................................................... 65,723,400
FR 37595, June 27, 1979; 44 FR 39339, July 5, Washington .................................................... 59,305,900
1979] West Virginia ................................................. 60,026,800
Wisconsin ...................................................... 65,391,400
§ 35.910–11 Allotment of Fiscal Year Wyoming ........................................................ 16,764,500
1980 appropriation. American Samoa ........................................... 2,065,400
Guam ............................................................. 2,494,500
(a) Title II of Public Law 96–103 ap- Puerto Rico .................................................... 39,342,800
propriated $3.4 billion. These allot- Trust Terr ....................................................... 4,667,200
Virgin Islands ................................................. 1,267,400
ments are available until expended but Northern Marianas ......................................... 462,700
must be obligated by September 30,
429
§ 35.910–12 40 CFR Ch. I (7–1–00 Edition)
Allotments State Amount

from funds ap-
State propriated Pennsylvania ..................................................... 1,102,234
under Pub. L. Rhode Island ..................................................... 132,719
95–372
South Carolina ................................................... 297,352
Total .................................................... 3,400,000,000 South Dakota ..................................................... 118,190
Tennessee ......................................................... 391,354
Texas ................................................................. 1,102,708
[45 FR 16486, Mar. 14, 1980] Utah ................................................................... 118,190
Vermont ............................................................. 118,190
§ 35.910–12 Reallotment of deobligated Virginia ............................................................... 495,392
funds of Fiscal Year 1978. Washington ........................................................ 447,046
West Virginia ..................................................... 452,493
(a) Of the 4.5 billion appropriated by Wisconsin .......................................................... 492,883
Public Law 95–240 for Fiscal Year 1978, Wyoming ............................................................ 118,190
$23,902,130 remained unobligated as of Guam ................................................................. 18,805
September 30, 1979 and thereby became Puerto Rico ........................................................ 296,561
subject to reallotment. Virgin Islands ..................................................... 9,561
(b) The reallotment was computed by American Samoa ............................................... 15,573
Tr. Terr. of Pac. Islds ........................................ 35,192
applying the percentages in § 35.910– N. Mariana Islds ................................................ 3,480
8(a), adjusted to account for the ab-
sence of Ohio and readjusted to comply Total ........................................................ 23,902,130
with the requirements of § 35.910(d) es-
tablishing a minimum allotment of .5 [45 FR 83497, Dec. 19, 1980. Correctly des-
percent. ignated at 46 FR 9947, Jan. 30, 1981]
(c) These funds are added to the Fis-
cal Year 1980 allotments and will re- § 35.912 Delegation to State agencies.
main available through September 30, EPA’s policy is to maximize the use
1981 (see §§ 35.910–2(b) and 35.910–8). of staff capabilities of State agencies.
(d) The $23,902,130 is allotted as fol- Therefore, in the implementation of
lows: the construction grant program, opti-
State Amount mum use will be made of available
State and Federal resources. This will
Alabama ............................................................. $324,543
Alaska ................................................................ 118,190
eliminate unnecessary duplicative re-
Arizona ............................................................... 196,050 views of documents required in the
Arkansas ............................................................ 189,880 processing of construction grant
California ............................................................ 2,009,389 awards. Accordingly, the Regional Ad-
Colorado ............................................................ 232,191
Connecticut ........................................................ 279,813 ministrator may enter into a written
Delaware ............................................................ 118,190 agreement, where appropriate, with a
District of Columbia ........................................... 118,190 State agency to authorize the State
Florida ................................................................ 969,582
Georgia .............................................................. 490,736 agency’s certification of the technical
Hawaii ................................................................ 200,367 or administrative adequacy of specifi-
Idaho .................................................................. 125,148 cally required documents. The agree-
Illinois ................................................................. 1,312,681
Indiana ............................................................... 699,465
ment may provide for the review and
Iowa ................................................................... 327,345 certification of elements of:
Kansas ............................................................... 222,494 (a) Facilities plans (step 1),
Kentucky ............................................................ 369,430
Louisiana ........................................................... 319,073 (b) plans and specifications (step 2),
Maine ................................................................. 189,428 (c) operation and maintenance manu-
Maryland ............................................................ 701,974 als, and
Massachusetts ................................................... 746,591
Michigan ............................................................ 1,043,875 (d) such other elements as the Re-
Minnesota .......................................................... 472,360 gional Administrator determines may
Mississippi ......................................................... 244,147 be appropriately delegated as the pro-
Missouri ............................................................. 630,710
Montana ............................................................. 118,190 gram permits and State competence al-
Nebraska ........................................................... 139,138 lows. The agreement will define re-
Nevada .............................................................. 118,190 quirements which the State will be ex-
New Hampshire ................................................. 222,653
New Jersey ........................................................ 902,590
pected to fulfill as part of its general
New Mexico ....................................................... 118,190 responsibilities for the conduct of an
New York ........................................................... 2,684,060 effective preaward applicant assistance
North Carolina ................................................... 500,590 program; compensation for this pro-
North Dakota ..................................................... 118,190
Oklahoma .......................................................... 234,496 gram is the responsibility of the State.
Oregon ............................................................... 327,888 The agreement will also define specific
430
duties regarding the review of identi- (A) The severity of the pollution
fied documents prerequisite to the re- problem;
ceipt of grant awards. A certification (B) The existing population affected;
agreement must provide that an appli- (C) The need for preservation of high
cant or grantee may request review by quality waters; and
the Regional Administrator of an ad- (D) At the State’s option, the specific
verse recommendation by a State agen- category of need that is addressed.
cy. Delegation activities are compen- (ii) The State will have sole author-
sable by EPA only under section 106 of ity to determine the priority for each
the Act or subpart F of this part.
category of need. These categories
§ 35.915 State priority system and comprise mutually exclusive classes of
project priorty list. facilities and include:
Construction grants will be awarded (A) Category I—Secondary treat-
from allotments according to the State ment;
priority list, based on the approved (B) Category II—More stringent
State priority system. The State pri- treatment;
ority system and list must be designed (C) Category IIIA—Infiltration/inflow
to achieve optimum water quality correction;
management consistent with the goals (D) Category IIIB—Sewer system re-
and requirements of the Act. placement or major rehabilitation;
(a) State priority system. The State (E) Category IVA—New collectors
priority system describes the method- and appurtenances;
ology used to rate and rank projects (F) Category IVB—New interceptors
that are considered eligible for assist- and appurtenances; and
ance. It also sets forth the administra- (G) Category V—Correction of com-
tive, management, and public partici- bined sewer overflows.
pation procedures required to develop (iii) Step 2, step 3 and step 2=3
and revise the State project priority projects utilizing processes and tech-
list. In developing its annual priority niques meeting the innovative and al-
list, the State must consider the con- ternative guidelines in appendix E of
struction grant needs and priorities set
this part may receive higher priority.
forth in certified and approved State
Also 100 percent grants for projects
and areawide water quality manage-
that modify or replace malfunctioning
ment (WQM) plans. The State shall
treatment works constructed with an
hold a public hearing before submission
85 percent grant may receive a higher
of the priority system (or revision
priority.
thereto). Before the hearing, a fact
sheet describing the proposed system (iv) Other criteria, consistent with
(including rating and ranking criteria) these, may be considered (including the
shall be distributed to the public. A special needs of small and rural com-
summary of State responses to public munities). The State shall not con-
comment and to any public hearing sider: The project area’s development
testimony shall be prepared and in- needs not related to pollution abate-
cluded in the priority system submis- ment; the geographical region within
sion. The Regional Administrator shall the State; or future population growth
review and approve the State priority projections.
system for procedural completeness, (2) Criteria assessment. The State shall
insuring that it is designed to obtain have authority to determine the rel-
compliance with the enforceable re- ative influence of the rating criteria
quirements of the Act as defined in used for assigning project priority. The
§ 35.905. The Regional Administrator criteria must be clearly delineated in
may exempt grants for training facili- the approved State priority system and
ties under section 109(b)(1) of the Act applied consistently to all projects. A
and § 35.930–1(b) from these require- project on the priority list shall gen-
ments. erally retain its priority rating until
(1) Project rating criteria. (i) The State an award is made.
priority system shall be based on the (b) State needs inventory. The State
following criteria: shall maintain a listing, including
431
§ 35.915 40 CFR Ch. I (7–1–00 Edition)
costs by category, of all needed treat- out below for projects on the fundable
ment works. The most recent needs in- portion of the list. The Administrator
ventory, prepared in accordance with shall issue specific guidance on these
section 516(b)(1)(B) of the Act, should information requirements for the plan-
be used for this purpose. This State ning portion of the list, including
listing should be the same as the needs phase-in procedures for the fiscal year
inventory and fulfills similar require- 1979 priority planning process.
ments in the State WQM planning (i) State assigned EPA project num-
process. The State project priority list ber;
shall be consistent with the needs in- (ii) Legal name and address of appli-
ventory. cant;
(c) State project priority list. The State (iii) Short project name or descrip-
shall prepare and submit annually a tion;
ranked priority listing of projects for
(iv) Priority rating and rank of each
which Federal assistance is expected
project, based on the approved priority
during the 5-year planning period
system;
starting at the beginning of the next
fiscal year. The list’s fundable portion (v) Project step number (step 1, 2, 3,
shall include those projects planned for or 2=3);
award during the first year of the 5- (vi) Relevant needs authority/facility
year period (hereinafter called the number(s);
funding year). The fundable portion (vii) NPDES number (as appropriate);
shall not exceed the total funds ex- (viii) Parent project number (i.e.,
pected to be available during the year EPA project number for predecessor
less all applicable reserves provided in project);
§ 35.915–1 (a) through (d). The list’s (ix) For step 2, 3, or 2=3 projects, in-
planning portion shall include all dication of alternative system for
projects outside the fundable portion small community;
that may, under anticipated allotment (x) For step 2, 3, or 2=3 projects, that
levels, receive funding during the 5- portion (if any) of eligible cost to apply
year period. The Administrator shall to alternative techniques;
provide annual guidance to the States (xi) For step 2, 3, or 2=3 projects, that
outlining the funding assumptions and portion (if any) of eligible cost to apply
other criteria useful in developing the to innovative processes;
5-year priority list. (xii) For step 3 or 2=3 projects, the el-
(1) Project priority list development. igible costs in categories IIIB, IV, and
The development of the project pri- V (see § 35.915(a)(1)(ii));
ority list shall be consistent with the
(xiii) Total eligible cost;
rating criteria established in the ap-
proved priority system, in accordance (xiv) Date project is expected to be
with the criteria in paragraph (a)(1) of certified by State to EPA for funding;
this section. In ranking projects, (xv) Estimated EPA assistance (not
States must also consider the treat- including potential grant increase from
ment works and step sequence; the al- the reserve in § 35.915–1(b)); and
lotment deadline; total funds available; (xvi) Indication that the project does
and other management criteria in the or does not satisfy the enforceable re-
approved State priority system. In de- quirements provision, including (as ap-
veloping its annual priority list, the propriate) funding estimates for those
State must consider the construction portions which do not meet the en-
grant needs and priorities set forth in forceable requirements of the Act.
certified and approved State and (d) Public participation. Before the
areawide WQM plans. The Regional Ad- State submits its annual project pri-
ministrator may request that a State ority list to the Regional Adminis-
provide justification for the rating or trator, the State shall insure that ade-
ranking established for specific quate public participation (including a
project(s). public hearing) has taken place as re-
(2) Project priority list information. The quired by subpart G of this part. Before
project priority list shall include the the public hearing, the State shall cir-
information for each project that is set culate information about the priority
432
list including a description of each pro- agement procedure must provide for
posed project and a statement con- the following conditions:
cerning whether or not it is necessary (1) Project bypass. A State may bypass
to meet the enforceable requirements a project on the fundable portion of the
of the Act. The information on the pro- list after it gives written notice to the
posed priority list under paragraph municipality and the NPDES authority
(c)(2) of this section may be used to ful- that the State has determined that the
fill these requirements. This public project to be bypassed will not be ready
hearing may be conducted jointly with to proceed during the funding year. By-
any regular public meeting of the State passed projects shall retain their rel-
agency. The public must receive ade- ative priority rating for consideration
quate and timely statewide notice of in the future year allotments. The
the meeting (including publication of highest ranked projects on the plan-
the proposed priority list) and ning portion of the list will replace by-
attendees at the meeting must receive passed projects. Projects considered for
adequate opportunity to express their funding in accordance with this provi-
views concerning the list. Any revision sion must comply with paragraph (g) of
of the State priority list (including this section.
project bypass and the deletion or addi- (2) Additional allotments. If a State re-
ceives any additional allotment(s), it
tion of projects) requires circulation
may fund projects on the planning por-
for public comment and a public hear-
tion of the priority list without further
ing unless the State agency and the
public participation if:
Regional Administrator determine that
(i) The projects on the planning por-
the revision is not significant. The ap-
tion have met all administrative and
proved State priority system shall de-
public participation requirements out-
scribe the public participation policy
lined in the approved State priority
and procedures applicable to any pro- system; and
posed revision to the priority list. (ii) The projects included within the
(e) Submission and review of project pri- fundable range are the highest priority
ority list. The State shall submit the projects on the planning portion.
priority list as part of the annual State
If sufficient projects that meet these
program plan under subpart G of this
conditions are not available on the
part. A summary of State agency re-
planning portion of the list, the State
sponse to public comment and hearing
shall follow the procedures outlined in
testimony shall be prepared and sub-
paragraph (e) of this section to add
mitted with the priority list. The Re- projects to the fundable portion of the
gional Administrator will not consider priority list.
a priority list to be final until the pub- (3) Project removal. A State may re-
lic participation requirements are met move a project from the priority list
and all information required for each only if:
project has been received. The Re- (i) The project has been fully funded;
gional Administrator will review the (ii) The project is no longer entitled
final priority list within 30 days to in- to funding under the approved priority
sure compliance with the approved system;
State priority system. No project may (iii) The Regional Administrator has
be funded until this review is complete. determined that the project is not
(f) Revision of the project priority list. needed to comply with the enforceable
The State may modify the project pri- requirements of the Act; or
ority list at any time during the pro- (iv) The project is otherwise ineli-
gram planning cycle in accordance gible.
with the public participation require- (g) Regional Administrator review for
ments and the procedures established compliance with the enforceable require-
in the approved State priority system. ments of the Act. (1) Unless otherwise
Any modification (other than clerical) provided in paragraph (g)(2) of this sec-
to the priority list must be clearly doc- tion, the Regional Administrator may
umented and promptly reported to the propose the removal of a specific
Regional Administrator. As a min- project or portion thereof from the
imum, each State’s priority list man- State project priority list during or
433
§ 35.915–1 40 CFR Ch. I (7–1–00 Edition)
after the initial review where there is trator determines that a project on the
reason to believe that it will not result priority list is not eligible for assist-
in compliance with the enforceable re- ance under this subpart, the State and
quirements of the Act. Before making a municipality will be promptly advised
final determination, the Regional Ad- and the State will be required to mod-
ministrator will initiate a public hear- ify its priority list accordingly. Elimi-
ing on this issue. Questioned projects nation of any project from the priority
shall not be funded during this admin- list shall be final and conclusive unless
istrative process. Consideration of the State or municipality files a notice
grant award will continue for those of appeal under part 30, subpart J of
projects not at issue in accordance this subchapter.
with all other requirements of this sec- [43 FR 44049, Sept. 27, 1978, as amended at 44
tion. FR 37595, June 27, 1979; 44 FR 39339, July 5,
(i) The Regional Administrator shall 1979]
establish the procedures for the public
notice and conduct of any such hear- § 35.915–1 Reserves related to the
ing, or, as appropriate, the procedures project priority list.
may be adapted from existing agency In developing the fundable portion of
procedures such as § 6.400 or §§ 123.32 the priority list, the State shall pro-
and 123.34 of this chapter. The proce- vide for the establishment of the sev-
dures used must conform to minimum eral reserves required or allowed under
Agency guidelines for public hearings this section. The State shall submit a
under part 25 of this chapter. statement specifying the amount to be
(ii) Within 30 days after the date of set aside for each reserve with the final
the hearing, the Regional Adminis- project priority list.
trator shall transmit to the appro- (a) Reserve for State management assist-
priate State agency a written deter- ance grants. The State may (but need
mination about the questioned not) propose that the Regional Admin-
projects. If the Regional Administrator istrator set aside from each allotment
determines that the project will not re- a reserve not to exceed 2 percent or
sult in compliance with the enforceable $400,000, whichever is greater, for State
requirements of the Act, the State management assistance grants under
shall remove the project from the pri- subpart F of this part. Grants may be
ority list and modify the priority list made from these funds to cover the
to reflect this action. The Regional Ad- reasonable costs of administering ac-
ministrator’s determination will con- tivities delegated to a State. Funds re-
stitute the final agency action, unless served for this purpose that are not ob-
the State or municipality files a notice ligated by the end of the allotment pe-
of appeal under part 30, subpart J of riod will be added to the amounts last
this subchapter. allotted to a State. These funds shall
(2) The State may use 25 percent of be immediately available for obligation
its funds during each fiscal year for to projects in the same manner and to
projects or portions of projects in cat- the same extent as the last allotment.
egories IIIB, IVA, IVB, and V (see (b) Reserve for innovative and alter-
§ 35.915(a)(1)(ii)). These projects must be native technology project grant increase.
eligible for Federal funding to be in- Each State shall set aside from its an-
cluded on the priority list. EPA will nual allotment a specific percentage to
generally not review these projects increase the Federal share of grant
under paragraph (g)(1) of this section awards from 75 percent to 85 percent of
to determine if they will result in com- the eligible cost of construction (under
pliance with the enforceable require- § 35.908(b)(1)) for construction projects
ments of the Act. The Regional Admin- which use innovative or alternative
istrator will, however, review all waste water treatment processes and
projects or portions thereof which techniques. The set-aside amount shall
would use funds beyond the 25-percent be 2 percent of the State’s allotment
level according to the criteria in para- for each of fiscal years 1979 and 1980,
graph (g)(1) of this section. and 3 percent for fiscal year 1981. Of
(h) Regional Administrator review for this amount not less than one-half of 1
eligibility. If the Regional Adminis- percent of the State’s allotment shall
434
be set aside to increase the Federal ministrator. In States where the re-
grant share for projects utilizing inno- serve is mandatory, these funds shall
vative processes and techniques. Funds be reallotted if not obligated during
reserved under this section may be ex- the allotment period. In States where
pended on projects for which facilities the reserve is optional, these funds
plans were initiated before fiscal year should be released for funding projects
1979. These funds shall be reallotted if before the reallotment deadline.
not used for this purpose during the al-
lotment period. § 35.917 Facilities planning (step 1).
(c) Reserve for grant increases. The (a) Sections 35.917 through 35.917–9 es-
State shall set aside not less than 5 tablish the requirements for facilities
percent of the total funds available plans.
during the priority list year for grant (b) Facilities planning consists of
increases (including any funds nec- those necessary plans and studies
essary for development of municipal which directly relate to the construc-
pretreatment programs) for projects tion of treatment works necessary to
awarded assistance under § 35.935–11. comply with sections 301 and 302 of the
The funds reserved for this purpose Act. Facilities planning will dem-
shall be reallotted if not obligated. onstrate the need for the proposed fa-
Therefore, if they are not needed for cilities. Through a systematic evalua-
grant increases they should be released tion of feasible alternatives, it will
for funding additional projects before also demonstrate that the selected al-
the reallotment deadline. ternative is cost-effective, i.e., is the
(d) Reserve for step 1 and step 2 most economical means of meeting es-
projects. The State may (but need not) tablished effluent and water quality
set aside up to 10 percent of the total goals while recognizing environmental
funds available in order to provide and social considerations. (See appen-
grant assistance to step 1 and step 2 dix A to this subpart.)
projects that may be selected for fund- (c) EPA requires full compliance with
ing after the final submission of the the facilities planning provisions of
project priority list. The funds reserved this subpart before award of step 2 or
for this purpose shall be reallotted if step 3 grant assistance. (Facilities
not obligated. Therefore, they should planning initiated before May 1, 1974,
be released for funding additional may be accepted under regulations
projects before the reallotment dead- published on February 11, 1974, if the
line. step 2 or step 3 grant assistance is
(e) Reserve for alternative systems for awarded before April 1, 1980.)
small communities. Each State with a (d) Grant assistance for step 2 or step
rural population of 25 percent or more 3 may be awarded before approval of a
(as determined by population estimates facilities plan for the entire geographic
of the Bureau of Census) shall set aside area to be served by the complete
an amount equal to 4 percent of the waste treatment system of which the
State’s annual allotment, beginning proposed treatment works will be an
with the fiscal year 1979 allotment. The integral part if:
set-aside amount shall be used for (1) The Regional Administrator de-
funding alternatives to conventional termines that applicable statutory re-
treatment works for small commu- quirements have been met (see §§ 35.925–
nities. The Regional Administrator 7 and 35.925–8); that the facilities plan-
may authorize, at the request of the ning related to the proposed step 2 or
Governor of any non-rural State, a re- step 3 project has been substantially
serve of up to 4 percent of that State’s completed; and that the step 2 or step
allotment for alternatives to conven- 3 project for which grant assistance is
tional treatment works for small com- made will not be significantly affected
munities. For the purposes of this by the completion of the facilities plan
paragraph, the definition of a small and will be a component part of the
community is any municipality with a complete system; and
population of 3,500 or less, or highly (2) The applicant agrees to complete
dispersed sections of larger municipali- the facilities plan on a schedule the
ties, as determined by the Regional Ad- State accepts (subject to the Regional
435
§ 35.917–1 40 CFR Ch. I (7–1–00 Edition)
Administrator’s approval); the sched- a part. The description shall cover all
ule shall be inserted as a special condi- elements of the system, from the serv-
tion in the grant agreement. ice area and collection sewers, through
(e) Facilities planning may not be treatment, to the ultimate discharge of
initiated before award of a step 1 grant treated waste waters and management
or written approval of a plan of study and disposal of sludge. Planning area
(see § 35.920–3(a)(1)) accompanied by res- maps must include major components
ervation of funds for a step 1 grant (see of existing and proposed treatment
§§ 35.925–18 and 35.905). Facility plan- works. For individual systems, plan-
ning must be based on load allocations, ning area maps must include those in-
delineation of facility planning areas dividual systems which are proposed
and population projection totals and for funding under § 35.918.
disaggregations in approved water
(c) Infiltration/inflow documentation
quality management (WQM) plans. (See
in accordance with § 35.927 et seq.
paragraph 8a(3) of appendix A.) After
October 1, 1979, the Regional Adminis- (d) A cost-effectiveness analysis of
trator shall not approve grant assist- alternatives for the treatment works
ance for any project under this subpart and for the complete waste treatment
if such facility-related information is system(s) of which the treatment
not available in an approved WQM works is a part. The selection of the
plan, unless the Regional Adminis- system(s) and the choice of the treat-
trator determines, in writing, based on ment works for which construction
information submitted by the State or drawings and specifications are to be
the grantee, that the facility-related prepared shall be based on the results
information was not within the scope of the cost-effectiveness analysis. (See
of the WQM work program, or that appendix A to this subpart.) This anal-
award of the grant is necessary to ysis shall include:
achieve water quality goals of the Act. (1) The relationship of the size and
(f) If the information required as part capacity of alternative works to the
of a facilities plan has been developed needs to be served, including reserve
separately, the facilities plan should capacity;
incorporate it by reference. Planning (2) An evaluation of alternative flow
which has been previously or collat- and waste reduction measures, includ-
erally accomplished under local, State, ing nonstructural methods;
or Federal programs will be utilized (3) An evaluation of improved efflu-
(not duplicated). ent quality attainable by upgrading
§ 35.917–1 Content of facilities plan. the operation and maintenance and ef-
ficiency of existing facilities as an al-
Facilities planning must address ternative or supplement to construc-
each of the following to the extent con- tion of new facilities;
sidered appropriate by the Regional
(4) An evaluation of the capability of
Administrator:
(a) A description of the treatment each alternative to meet applicable ef-
works for which construction drawings fluent limitations. (All step 2, step 3, or
and specifications are to be prepared. step 2=3 projects shall be based on ap-
This description shall include prelimi- plication of best practicable waste
nary engineering data, cost estimates treatment technology (BPWTT), as a
for design and construction of the minimum. Where application of
treatment works, and a schedule for BPWTT would not meet water quality
completion of design and construction. standards, the facilities plan shall pro-
The preliminary engineering data may vide for attaining such standards. Such
include, to the extent appropriate, in- provision shall consider the alternative
formation such as a schematic flow of treating combined sewer overflows.);
diagram, unit processes, design data re- (5) An identification of, and provision
garding detention times, flow rates, for, applying BPWTT as defined by the
sizing of units, etc. Administrator, based on an evaluation
(b) A description of the selected com- of technologies included under each of
plete waste treatment system(s) of the following waste treatment manage-
which the proposed treatment works is ment techniques:
436
(i) Biological or physical-chemical lected shall propose adoption of meas-

treatment and discharge to receiving ures to reduce energy consumption or
waters; to increase recovery as long as such
(ii) Systems employing the reuse of measures are cost-effective. Where
waste water and recycling of pollut- processes or techniques are claimed to
ants; be innovative technology on the basis
(iii) Land application techniques; of energy reduction criterion contained
(iv) Systems including revenue gen- in paragraph 6e(2) of appendix E to this
erating applications; and subpart, a detailed energy analysis
(v) Onsite and nonconventional sys- shall be included to substantiate the
tems; claim to the satisfaction of the Re-
(6) An evaluation of the alternative
gional Administrator.
methods for the ultimate disposal of
treated waste water and sludge mate- (e) An identification of effluent dis-
rials resulting from the treatment charge limitations or, where a permit
process, and a justification for the has been issued, the NPDES permit
method(s) chosen; number, and a brief description of how
(7) An adequate assessment of the ex- the proposed project(s) will result in
pected environmental impact of alter- compliance with the enforceable re-
natives (including sites) under part 6 of quirements of the Act.
this chapter. This assessment shall be (f) Required comments or approvals
revised as necessary to include infor- of relevant State, interstate, regional,
mation developed during subsequent and local agencies (see § 30.305–8).
project steps; (g) A final responsiveness summary,
(8) For facilities planning begun after consistent with 40 CFR 25.8 and § 35.917–
September 30, 1978, whether or not pre- 5.
pared under a step 1 grant, an analysis (h) A brief statement demonstrating
of innovative and alternative treat- that the authorities who will be imple-
ment processes and techniques that re- menting the plan have the necessary
claim and reuse water, productively re- legal, financial, institutional, and
cycle waste water constituents, elimi-
managerial resources available to in-
nate the discharge of pollutants, re-
sure the construction, operation, and
cover energy or otherwise achieve the
benefits described in appendix E. The maintenance of the proposed treatment
provisions of this paragraph are en- works.
couraged in all cases. They are re- (i) A statement specifying that the
quired in facilities planning for new requirements of the Civil Rights Act of
treatment works and for treatment 1964 and of part 7 of this chapter have
works which are being acquired, al- been met.
tered, modified, improved, or extended (j) For facilities planning begun after
either to handle a significant increase September 30, 1978, whether or not pre-
in the volume of treated waste or to re- pared under a step 1 grant, a descrip-
duce significantly the pollutant dis- tion of potential opportunities for
charges from the system. Where cer- recreation, open space, and access to
tain categories of alternative tech- bodies of water analyzed in planning
nologies may not be generally applica- the proposed treatment works and the
ble because of prevailing climatic or recommended actions. The facilities
geological conditions, a detailed anal- plan shall also describe measures taken
ysis of these categories of alternative to coordinate with Federal, State, and
technologies is not required. However, local recreational programs and with
the reason for such a rejection must be recreational elements of applicable ap-
fully substantiated in the facilities proved areawide WQM plans.
plan;
(k) A municipal pretreatment pro-
(9) For facilities planning begun after
September 30, 1978, whether or not pre- gram in accordance with § 35.907,
pared under a step 1 grant, an analysis (l) An estimate of total project costs
of the primary energy requirements and charges to customers, in accord-
(operational energy inputs) for each ance with guidance issued by the Ad-
system considered. The alternative se- ministrator.
437
§ 35.917–2 40 CFR Ch. I (7–1–00 Edition)
(m) A statement concerning the plan includes more than one political
availability and estimated cost of pro- jurisdiction, a grant may be awarded
posed sites. for a step 1 project, as appropriate, to:
(1) The joint authority representing
FR 10302, Feb. 16, 1979] such jurisdictions, if eligible;
(2) one qualified (lead agency) appli-
§ 35.917–2 State responsibilities. cant; or
(a) Facilities planning areas. Facilities (3) two or more eligible jurisdictions.
planning should focus upon the geo- After a waste treatment management
graphic area to be served by the waste agency for an area has been designated
treatment system(s) of which the pro- in accordance with section 208(c) of the
posed treatment works will be an inte- Act (see subpart G of this part) the Re-
gral part. The facilities plan should in- gional Administrator shall not make
clude the area necessary to prepare an any grant for construction of treat-
environmental assessment and to as- ment works within the area except to
sure that the most cost-effective means the designated agency.
of achieving the established water (b) Reports. Where a grant has been
quality goals can be implemented. To awarded for facilities planning which is
assure that facilities planning will in- expected to require more than 1 year to
clude the appropriate geographic areas, complete, the grantee must submit a
the State shall: brief progress report to the Regional
(1) Delineate, as a preliminary basis Administrator at 3-month intervals.
for planning, the boundaries of the The progress report shall contain a
planning areas. In the determination of minimum of narrative description, and
each area, appropriate attention should shall describe progress in completing
be given to including the entire area the approved schedule of specific tasks
where cost savings, other management for the project.
advantages, or environmental gains
§ 35.917–4 Planning scope and detail.
may result from interconnection of in-
dividual waste treatment systems or (a) Initially, the geographic scope of
collective management of such sys- step 1 grant assistance shall be based
tems; on the area delineated by the State
(2) Include maps, which shall be up- under § 35.917–2, subject to the Regional
dated annually, showing the identified Administrator’s review. The Regional
areas and boundary determinations, as Administrator may make the prelimi-
part of the State submission under sec- nary delineation of the boundaries of
tion 106 of the act; the planning area, if the State has not
(3) Consult with local officials in done so, or may revise boundaries se-
making the area and boundary deter- lected by the locality or State agency,
minations; and after appropriate consultation with
(4) Where individual systems are State and local officials.
likely to be cost-effective, delineate a (b) Facilities planning shall be con-
planning area large enough to take ad- ducted only to the extent that the Re-
vantage of economies of scale and effi- gional Administrator finds necessary
ciencies in planning and management. in order to insure that facilities for
(b) Facilities planning priorities. The which grants are awarded will be cost-
State shall establish funding priorities effective and environmentally sound
for facilities planning in accordance and to permit reasonable evaluation of
with §§ 35.915 and 35.915–1. grant applications and subsequent
preparation of designs, construction
§ 35.917–3 Federal assistance. drawings, and specifications.
(a) Eligibility. Only an applicant
which is eligible to receive grant as- § 35.917–5 Public participation.
sistance for subsequent phases of con- (a) General. Consistent with section
struction (steps 2 and 3) and which has 101(e) of the Clean Water Act and 40
the legal authority to subsequently CFR part 25, EPA, the States, and
construct and manage the facility may grantees shall provide for, encourage,
apply for grant assistance for step 1. If and assist public participation in the
the area to be covered by the facilities facilities planning process and shall
438
provide citizens with information jected staff and budget resources which
about and opportunities to become in- will be devoted to public participation,
volved in the following: a proposed schedule for public partici-
(1) The assessment of local water pation activities, the types of consulta-
quality problems and needs; tion and informational mechanisms
(2) The identification and evaluation that will be used, and the segments of
of locations for waste water treatment the public that the grantee has tar-
facilities and of alternative treatment geted for involvement.
technologies and systems including (4) Submit to EPA, within 45 days
those which recycle and reuse waste after the date of acceptance of the Step
water (including sludge), use land 1 grant award, a brief Public Participa-
treatment, reduce waste water volume, tion Work Plan. In addition to meeting
and encourage multiple use of facili- the requirements of 40 CFR 25.11, the
ties; Work Plan shall describe the method of
(3) The evaluation of social, eco- coordination between the appropriate
nomic, fiscal, and environmental im- Water Quality Management public par-
pacts; and ticipation program under subpart G of
(4) The resolution of other significant this part and the grantee’s public par-
facilities planning issues and decisions. ticipation program as required by 40
(b) Basic Public Participation Program. CFR 35.917–5(e). The grantee shall dis-
Since waste water treatment facilities tribute the Work Plan, accompanied by
vary in complexity and impact upon a fact sheet on the project, to groups
the community, these public participa- and individuals who may be interested
tion requirements institute a two-tier in or affected by the project. The fact
public participation program for facili- sheet shall describe the nature, scope
ties planning consisting of a Basic Pub- and location of the project; identify the
lic Participation Program, suitable for consulting engineer and grantee staff
less complex projects with only mod- contact; and include a preliminary es-
erate community impacts, and a Full- timate of the total costs of the project,
Scale Public Participation Program, including debt service and operation
for more complex projects with poten- and maintenance, and of the resulting
tially significant community impacts. charges to each affected household.
All facilities planning projects, except (5) Consult with the public, in accord-
those that qualify for the Full-Scale ance with 40 CFR 25.4, early in the fa-
Public Participation Program under cilities planning process when assess-
paragraph (c) of this section and those ing the existing and future situations
exempt under paragraph (d) of this sec- and identifying and screening alter-
tion, require the Basic Public Partici- natives, but before selecting alter-
pation Program. In conducting the natives for evaluation according to the
Basic Public Participation Program, Cost-Effectiveness Analysis Guidelines
the grantee shall at a minimum: (see Appendix A, Cost-Effectiveness
(1) Institute, and maintain through- Analysis Guidelines, paragraph 5).
out the facilities planning process, a After consultating with the public, the
public information program (including grantee shall prepare and distribute a
the development and use of a mailing responsiveness summary, in accordance
list of interested and affected members with 40 CFR 25.8.
of the public), in accordance with 40 (6) Hold a meeting to consult with
CFR 25.4 and § 35.917–5(a). the public, in accordance with 40 CFR
(2) Notify and consult with the pub- 25.6, when alternatives are largely de-
lic, during the preparation of the plan veloped but before an alternative or
of study, about the nature and scope of plan has been selected and then prepare
the proposed facilities planning and distribute a responsiveness sum-
project. EPA encourages the grantee to mary, in accordance with 40 CFR 25.8.
consult with the public in the selection (7) Hold a public hearing before final
of the professional consulting engineer. adoption of the facilities plan, in ac-
(3) Include in the plan of study, sub- cordance with 40 CFR 25.5.
mitted with the Step 1 grant applica- (8) Include in the final facilities plan
tion, a brief outline of the public par- a final responsiveness summary, in ac-
ticipation program, noting the pro- cordance with 40 CFR 25.8.
439
§ 35.917–5 40 CFR Ch. I (7–1–00 Edition)
(c) Full-Scale Public Participation Pro- for constraints imposed by facilities

gram. (1) The Regional Administrator planning activities that have already
shall require a Full-Scale Public Par- been completed. If the project is seg-
ticipation Program for all Step 1 facili- mented, the Regional Administrator
ties planning projects that fulfill one shall look at the project as a whole
or more of the following three condi- when considering whether to require a
tions: Full-Scale Public Participation Pro-
(i) Where EPA prepares or requires gram.
the preparation of an Environmental (3) In conducting the Full-Scale Pub-
Impact Statement during facilities lic Participation Program, the grantee
planning under 40 CFR part 6; or shall at a minimum:
(ii) Where advanced wastewater (i) Institute and maintain, through-
treatment (AWT) levels, as defined in out the facilities planning process, a
EPA guidance, may be required; or public information program, in accord-
(iii) Where the Regional Adminis- ance with 40 CFR 25.4 and § 35.917–5(a);
trator determines that more active (ii) Notify and consult with the pub-
public participation in decision-mak- lic, during the development of the plan
ing is needed because of the possibility of study, about the nature and scope of
of particularly significant effects on the proposed facilities planning
matters of citizen concern, as indicated project. EPA encourages the grantee to
by one or more of the following:
consult with the public in the selection
(A) Significant change in land use or
of the professional consulting engineer;
impact on environmentally sensitive
(iii) Include, in the plan of study sub-
areas;
(B) Significant increase in the capac- mitted with the Step 1 grant applica-
ity of treatment facilities or intercep- tion, brief outline of the public partici-
tors, significant increase in sewered pation program, noting the projected
area, or construction of wholly new staff and budget resources which will
treatment and conveyance systems; be devoted to public participation, a
(C) Substantial total cost to the com- proposed schedule for public participa-
munity or substantial increased cost to tion activities, types of information
users (i.e., cost not reimbursed under and consultation mechanisms that will
the grant); be used, and the segments of the public
(D) Significant public controversy; that the grantee has targeted for in-
(E) Significant impact on local popu- volvement;
lation growth or economic growth; (iv) Designate or hire a public par-
(F) Substantial opportunity for im- ticipation coordinator and establish an
plementation of innovative or alter- advisory group, in accordance with 40
native wastewater treatment tech- CFR 25.7, immediately upon acceptance
nologies or systems. of the Step 1 grant award.
(2) The grantee shall initiate a Full- (v) Submit to EPA, within 45 days
Scale Public Participation Program as after the date of acceptance of the step
soon as the determination in paragraph 1 grant award and after consultation
(c)(1) of this section is made. Gen- with the advisory group, a brief Public
erally, the determination should be Participation Work Plan. In addition
made before or at the time of award of to meeting the requirements of 40 CFR
the Step 1 grant. However, if the Re- 25.11, the Work Plan shall describe the
gional Administrator’s determination method for coordination between the
under paragraph (c)(1) of this section to appropriate Water Quality Manage-
require a Full-Scale Public Participa- ment agency public participation pro-
tion Program occurs after initiation of gram under subpart G of this part, and
facilities planning because of newly the grantee’s public participation pro-
discovered circumstances, the grantee gram as required by 40 CFR 35.917–5(e).
shall initiate and expanded public par- The grantee shall distribute the Work
ticipation program at that point. The Plan, accompanied by a fact sheet on
Regional Administrator shall assure the project, to groups and individuals
that the expanded program is at least who may be interested in or affected by
as inclusive as a normal Full-Scale the project. The fact sheet shall de-
Public Participation Program, except scribe the nature, scope and location of
440
the project; identify the consulting en- ous local issues exist, then the Re-
gineer and grantee staff contact; and gional Administrator shall deny the ex-
include a preliminary estimate of the emption request.
total costs of the project, including (2) During the facilities planning
debt service and operation and mainte- process, if the Regional Administrator
nance, and of the resulting costs to determines that the project no longer
each affected household; meets the exemption criteria stated
(vi) Hold a public meeting to consult above, the grantee, in consultation
with the public, in accordance with 40 with the Regional Administrator, shall
CFR 25.6, early in the facilities plan- undertake public participation activi-
ning process when assessing the exist- ties commensurate with the appro-
ing and future situations, and identi- priate public participation program but
fying and screening alternatives, but adjusted for constraints imposed by fa-
before selection of alternatives for cilities planning activities that have
evaluation according to the Cost-Effec- already been completed.
tiveness Analysis Guidelines (see Ap- (3) If a project is segmented, the Re-
pendix A, Cost-Effectiveness Analysis gional Administrator shall look at the
Guidelines, paragraph 5). Following the project as a whole when considering
public meeting, the grantee shall pre- any petition for exemption.
pare and distribute a responsiveness (e) Relationship between facilities plan-
summary, in accordance with 40 CFR ning and other environmental protection
25.8; programs. Where possible, the grantee
(vii) Hold a public meeting to consult shall further the integration of facili-
with the public, in accordance with 40 ties planning and related environ-
CFR 25.6, when alternatives are largely mental protection programs by coordi-
developed but before an alternative or nating the facilities planning public
plan has been selected, and then pre- participation program with public par-
pare and circulate a responsiveness ticipation activities carried out under
summary, in accordance with 40 CFR other programs. At a minimum, the
25.8; grantee shall provide for a formal liai-
(viii) Hold a public hearing prior to son between the facilities planning ad-
final adoption of the facilities plan, in visory group (or the grantee, where
accordance with 40 CFR 25.5. This pub- there is no advisory group) and any
lic hearing may be held in conjunction areawide advisory group established
with the public hearing on the draft under subpart G of this part. The Re-
Environmental Impact Statement gional Administrator may request re-
under 40 CFR part 6. view of the facilities plan by any ap-
(ix) Include, in the final facilities propriate State or areawide advisory
plan, a final responsiveness summary, group in association with the facilities
in accordance with 40 CFR 25.8. plan review required by 40 CFR 35.1522.
(d) Exemptions from public participa- (f) Mid-project evaluation. In accord-
tion requirements. (1) Upon written re- ance with 40 CFR 25.12(a)(2), EPA shall,
quest of the grantee, the Regional Ad- in conjunction with other regular over-
ministrator may exempt projects in sight responsibilities, conduct a mid-
which only minor upgrading of treat- project review of compliance with pub-
ment works or minor sewer rehabilita- lic participation requirements.
tion is anticipated according to the
State Project Priority List from the [44 FR 10302, Feb. 16, 1979]
requirements of the Basic and Full-
Scale Public Participation Programs § 35.917–6 Acceptance by imple-
under paragraphs (b) and (c) of this sec- menting governmental units.
tion, except for the public hearing and A facilities plan submitted for ap-
public disclosure of costs. Before grant- proval shall include adopted resolu-
ing any exemption, the Regional Ad- tions or, where applicable, executed
ministrator shall issue a public notice agreements of the implementing gov-
of intent to waive the above require- ernmental units, including Federal fa-
ments containing the facts of the situ- cilities, or management agencies which
ation and shall allow 30 days for re- provide for acceptance of the plan, or
sponse. If responses indicate that seri- assurances that it will be carried out,
441
§ 35.917–7 40 CFR Ch. I (7–1–00 Edition)
and statements of legal authority nec- § 35.918 Individual systems.

essary for plan implementation. The (a) For references to individual sys-
Regional Administrator may approve tems, the following definitions apply:
any departures from these require- (1) Individual systems. Privately
ments before the plan is submitted. owned alternative wastewater treat-
ment works (including dual waterless/
§ 35.917–7 State review and certifi-
gray water systems) serving one or
cation of facilities plan.
more principal residences or small
Each facilities plan must be sub- commercial establishments which are
mitted to the State agency for review. neither connected into nor a part of
The State must certify that: any conventional treatment works.
(a) The plan conforms with require- Normally, these are on-site systems
ments set forth in this subpart; with localized treatment and disposal
(b) The plan conforms with any exist- of wastewater with minimal or no con-
ing final basin plans approved under veyance of untreated waste water.
section 303(e) of the Act; Limited conveyance of treated or par-
(c) Any concerned 208 planning agen- tially treated effluents to further
cy has been given the opportunity to treatment or disposal sites can be a
comment on the plan; and function of individual systems where
(d) The plan conforms with any waste cost-effective.
(2) Principal residence. Normally the
treatment management plan approved
voting residence, the habitation of the
under section 208(b) of the Act.
family or household which occupies the
§ 35.917–8 Submission and approval of space for at least 51 percent of the time
facilities plan. annually. Second homes, vacation, or
recreation residences are not included
The State agency must submit the in this definition. A commercial estab-
completed facilities plan for the Re- lishment with waste water flow equal
gional Administrator’s approval. Where to or smaller than one user equivalent
deficiencies in a facilities plan are dis- (generally 300 gallons per day dry
covered, the Regional Administrator weather flows) is included.
shall promptly notify the State and the (3) Small commercial establishments.
grantee or applicant in writing of the Private establishments normally found
nature of such deficiencies and of the in small communities such as res-
recommended course of action to cor- taurants, hotels, stores, filling sta-
rect such deficiencies. Approval of a tions, or recreational facilities with
plan of study or a facilities plan will dry weather wastewater flows less than
not constitute an obligation of the 25,000 gallons per day. Private, non-
United States for any step 2, step 3, or profit entities such as churches,
step 2=3 project. schools, hospitals, or charitable organi-
zations are considered small commer-
§ 35.917–9 Revision or amendment of cial establishments. A commercial es-
facilities plan.
tablishment with waste water flow
A facilities plan may provide the equal to or smaller than one user
basis for several subsequent step 2, step equivalent (generally 300 gallons per
3, or step 2=3 projects. A facilities plan day dry weather flow) shall be treated
which has served as the basis for the as a residence.
award of a grant for a step 2, step 3, or (4) Conventional system. A collection
step 2=3 project shall be reviewed be- and treatment system consisting of
fore the award of any grant for a subse- minimum size (6 or 8 inch) gravity col-
quent project involving step 2 or step 3 lector sewers normally with manholes,
to determine if substantial changes force mains, pumping and lift stations,
have occurred. If the Regional Admin- and interceptors leading to a central
istrator decides substantial changes treatment plant.
have occurred which warrant revision (5) Alternative waste water treatment
or amendment, the plan shall be re- works. A waste water conveyance and/
vised or amended and submitted for re- or treatment system other than a con-
view in the same manner specified in ventional system. This includes small
this subpart. diameter pressure and vacuum sewers
442
and small diameter gravity sewers car- unlimited access to each individual
rying partially or fully treated waste system at all reasonable times for such
water. purposes as inspection, monitoring,
(b) A public body otherwise eligible construction, maintenance, operation,
for a grant under § 35.920–1 is eligible rehabilitation, and replacement. An op-
for a grant to construct privately tion will satisfy this requirement if it
owned treatment works serving one or can be exercised no later than the initi-
more principal residences or small ation of construction;
commercial establishments if the re- (i) Establish a comprehensive pro-
quirements of §§ 35.918–1, 35.918–2, and gram for regulation and inspection of
35.918–3 are met. individual systems before EPA ap-
(c) All individual systems qualify as proval of the plans and specifications.
alternative systems under § 35.908 and Planning for this comprehensive pro-
are eligible for the 4-percent set-aside gram shall be completed as part of the
(§ 35.915–1(e)) where cost-effective. facility plan. The program shall in-
clude as a minimum, periodic testing
§ 35.918–1 Additional limitations on of water from existing potable water
awards for individual systems. wells in the area. Where a substantial
In addition to those limitations set number of onsite systems exist, appro-
forth in § 35.925, the grant applicant priate additional monitoring of the aq-
shall: uifer(s) shall be provided;
(a) Certify that the principal resi- (j) Comply with all other applicable
dence or small commercial establish- limitations and conditions which treat-
ment was constructed before December ment works projects funded under this
27, 1977, and inhabited or in use on or subpart must meet.
before that date;
(b) Demonstrate in the facility plan § 35.918–2 Eligible and ineligible costs.
that the solution chosen is cost-effec- (a) Only the treatment and treat-
tive and selected in accordance with ment residue disposal portions of toi-
the cost-effectiveness guidelines for lets with composting tanks, oil-flush
the construction grants program (see mechanisms or similar in-house sys-
appendix A to this subpart); tems are grant eligible.
(c) Apply on behalf of a number of in- (b) Acquisition of land in which the
dividual units located in the facility individual system treatment works are
planning area; located is not grant eligible.
(d) Certify that public ownership of (c) Commodes, sinks, tubs, drains,
such works is not feasible and list the and other wastewater generating fix-
reasons in support of such certifi- tures and associated plumbing are not
cation; grant eligible. Modifications to homes
(e) Certify that such treatment or commercial establishments are also
works will be properly installed, oper- excluded from grant eligibility.
ated, and maintained and that the pub- (d) Only reasonable costs of construc-
lic body will be responsible for such action site restoration to preconstruction
tions; conditions are eligible. Costs of im-
(f) Certify before the step 2 grant provement or decoration associated
award that the project will be con- with the installation of individual sys-
structed and an operation and mainte- tems are not eligible.
nance program established to meet (e) Conveyance pipes from waste-
local, State, and Federal requirements water generating fixtures to the treat-
including those protecting present or ment unit connection flange or joint
potential underground potable water are not eligible where the conveyance
sources; pipes are located on private property.
(g) Establish a system of user charges
and industrial cost recovery in accord- § 35.918–3 Requirements for discharge
ance with §§ 35.928 et seq., 35.929 et seq., of effluents.
35.935–13, and 35.935–15; Best practicable waste treatment cri-
(h) Obtain assurance (such as an teria published by EPA under section
easement or covenant running with the 304(d)(2) of the Act shall be met for dis-
land), before the step 2 grant award, of posal of effluent on or into the soil
443
§ 35.920 40 CFR Ch. I (7–1–00 Edition)
from individual systems. Discharges to § 35.920–3 Contents of application.

surface waters shall meet effluent dis- (a) Step 1: Facilities plan and related
charge limitations for publicly owned step 1 elements. An application for a
treatment works. grant for step 1 shall include:
(1) A plan of study presenting—
§ 35.920 Grant application.
(i) The proposed planning area;
Grant applications will be submitted (ii) An identification of the entity or
and evaluated in accordance with part entities that will be conducting the
30, subpart B of this chapter. planning;
(iii) The nature and scope of the pro-
§ 35.920–1 Eligibility. posed step 1 project and public partici-
Municipalities (see § 35.905), inter- pation program, including a schedule
municipal agencies, States, or inter- for the completion of specific tasks;
state agencies are eligible for grant as- (iv) An itemized description of the es-
sistance. timated costs for the project; and
(v) Any significant public comments
§ 35.920–2 Procedure. received.
(2) Proposed subagreements, or an ex-
(a) Preapplication assistance, includ- planation of the intended method of
ing, where appropriate, a preapplica- awarding subagreements for perform-
tion conference, should be requested ance of any substantial portion of the
from the State agency or the appro- project work;
priate EPA Regional Office for each (3) Required comments or approvals
project for which State priority has of relevant State, local and Federal
been determined. The State agency agencies, including clearinghouse re-
must receive an application for each quirements of Office of Management
proposed treatment works. The basic and Budget Circular A–95, as revised
application shall meet the project re- (see § 30.305 of this subchapter).
quirements in § 35.920–3. Submissions (b) Step 2: Preparation of construction
required for subsequent related drawings and specifications. Before the
projects shall be in the form of amend- award of a grant or grant amendment
ments to the basic application. The for a step 2 project, the applicant must
grantee shall submit each application furnish the following:
through the State agency. It must be (1) A facilities plan (including the en-
complete (see § 35.920–3), and must re- vironmental assessment portion in ac-
late to a project for which priority has cordance with part 6 of this chapter) in
been determined under § 35.915. If any accordance with §§ 35.917 through
information required by § 35.920–3 has 35.917–9;
been furnished with an earlier applica- (2) Adequate information regarding
tion, the applicant need only incor- availability of proposed site(s), if rel-
porate it by reference and, if necessary, evant;
revise such information using the pre- (3) Proposed subagreements or an ex-
viously approved application. planation of the intended method of
(b) Grant applications (and, for sub- awarding subagreements for perform-
sequent related projects, amendments ance of any substantial portion of the
to them) are considered received by project work;
EPA only when complete and upon offi- (4) Required comments or approvals
cial receipt of the State priority cer- of relevant State, local, and Federal
tification document (EPA form 5700–28) agencies, including clearinghouse re-
in the appropriate EPA Regional Of- quirements of Office and Management
fice. In a State which has been dele- and Budget Circular A–95, as revised
gated Federal application processing (see § 30.305 of this subchapter);
functions under § 35.912 or under sub- (5) A value engineering (VE) commit-
part F of this part, applications are ment in compliance with § 35.926(a) for
considered received by EPA on the date all step 2 grant applications for
of State certification. Preliminary or projects with a projected total step 3
partial submittals may be made; EPA grant eligible construction cost of $10
may conduct preliminary processing of million or more excluding the cost for
these submittals. interceptor and collector sewers. For
444
those projects requiring VE, the grant- gible land, the grantee must submit a
ee may propose, subject to the Re- plat which shows the legal description
gional Administrator’s approval, to ex- of the property to be acquired, a pre-
clude interceptor and collector sewers liminary layout of the distribution and
from the scope of the VE analysis; drainage systems, and an explanation
(6) Proposed or executed (as deter- of the intended method of acquiring
mined appropriate by the Regional Ad- the property);
ministrator) intermunicipal agree- (3) A schedule for or evidence of com-
ments necessary for the construction pliance with §§ 35.925–10 and 35.935–12
and operation of the proposed treat- concerning an operation and mainte-
ment works, for any treatment works nance program, including a prelimi-
serving two or more municipalities; nary plan of operation; and
(7) A schedule for initiation and com- (4) After December 31, 1980, the items
pletion of the project work (see § 35.935– required by § 35.907(d)(1) through (d)(9),
9), including milestones; and as applicable, for grantees subject to
(8) Satisfactory evidence of compli- pretreatment requirements under
ance with: § 35.907(b).
(i) Sections 35.925–11, 35.929 et seq. and (5) A public participation work plan,
35.935–13 regarding user charges; in accordance with § 35.917–5(g), if the
(ii) Sections 35.925–11, 35.928 et seq. grantee determines, after consultation
and 35.935–15, regarding industrial cost with the public, that additional public
recovery, if applicable; participation activities are necessary.
(iii) Section 35.925–16, regarding costs (d) Step 2=3. Combination design and
allocable to Federal facilities, if appli- construction of a treatment works. Be-
cable; fore the award of a grant or grant
(iv) Section 35.927–4 regarding a sewer amendment for a step 2=3 project, the
use ordinance; grantee must furnish:
(v) Section 30.405–2 and part 4 of this (1) Each of the items specified in
chapter, regarding compliance with the paragraph (b) of this section, and (2) a
Uniform Relocation Assistance and schedule for timely submission of plans
Real Property Acquisition Policies Act and specifications, operation and main-
of 1970, if applicable; and, tenance manual, user charge and indus-
(vi) Other applicable Federal statu- trial cost recovery systems, sewer use
tory and regulatory requirements (see ordinance, and a preliminary plan of
subpart C of part 30 of this chapter). operation.
(9) After June 30, 1980, for grantees (e) Training facility project. An appli-
subject to pretreatment requirements cation for grant assistance for con-
under § 35.907(b), the items required by struction and support of a training fa-
§ 35.907(d)(1), (2), and (4). cility, facilities or training programs
(10) A public participation work plan, under section 109(b) of the Act shall in-
in accordance with § 35.917–5(g), if the clude:
grantee, after consultation with the (1) A statement concerning the suit-
public and its advisory group (if one ex- ability of the treatment works facility,
ists), determines that additional public facilities or training programs for
participation activities are necessary. training operations and maintenance
(c) Step 3. Building and erection of a personnel for treatment works
treatment works. Prior to the award of a throughout one or more States;
grant or grant amendment for a step 3 (2) A written commitment from the
project, the applicant must furnish the State agency or agencies to carry out
following: at such facility a program of training
(1) Each of the items specified in approved by the Regional Adminis-
paragraph (b) of this section (in com- trator;
pliance with paragraph (b)(6) of this (3) An engineering report (required
section, the final intermunicipal agree- only if a facility is to be constructed)
ments must be furnished); including facility design data and cost
(2) Construction drawings and speci- estimates for design and construction;
fications suitable for bidding purposes (4) A detailed outline of the training
(in the case of an application for step 3 programs, including (for 1-, 3-, and 5-
assistance solely for acquisition of eli- year projections):
445
§ 35.925 40 CFR Ch. I (7–1–00 Edition)
(i) An assessment of need for train- § 35.925–4 State allocation.

ing,
That the award of grant assistance
(ii) How the need was determined,
for a particular project will not cause
(iii) Who would be trained, the total of all grant assistance which
(iv) What curriculum and materials applicants within a State received, in-
would be used, cluding grant increases, to exceed the
(v) What type of delivery system will total of all allotments and reallot-
be used to conduct training, (i.e., State ments available to the State under
vocational education system, State en- § 35.910.
vironmental agency, universities or
private organizations), § 35.925–5 Funding and other capabili-
(vi) What resources are available for ties.
the program,
That the applicant has:
(vii) A budget breakdown on the cost
(a) Agreed to pay the non-Federal
of the program, and
project costs, and
(viii) The relationship of the facility
(b) The legal, institutional, manage-
or programs to other training pro-
grams. rial, and financial capability to insure
adequate construction, operation, and
[43 FR 44049, Sept. 27, 1978, as amended at 44 maintenance of the treatment works
FR 10304, Feb. 16, 1979; 44 FR 37595, June 27, throughout the applicant’s jurisdic-
1979; 44 FR 39339, July 5, 1979]
tion. (Also see § 30.340–3 of this sub-
§ 35.925 Limitations on award. chapter.)
Before awarding initial grant assist- § 35.925–6 Permits.

ance for any project for a treatment That the applicant has, or has ap-
works through a grant or grant amend-
plied for, the permit or permits as re-
ment, the Regional Administrator
quired by the national pollutant dis-
shall determine that all of the applica-
charge elimination system (NPDES)
ble requirements of § 35.920–3 have been
met. He shall also determine the fol- with respect to existing discharges af-
lowing: fected by the proposed project.
§ 35.925–1 Facilities planning. § 35.925–7 Design.
That, if the award is for step 2, step That the treatment works design will
3, or step 2=3 grant assistance, the fa- be (in the case of projects involving
cilities planning requirements in step 2) or has been (in the case of
§ 35.917 et seq. have been met. projects for step 3) based upon:
(a) Appendix A to this subpart, so
§ 35.925–2 Water quality management that the design, size, and capacity of
plans and agencies. such works are cost-effective and re-
That the project is consistent with late directly to the needs they serve,
any applicable water quality manage- including adequate reserve capacity;
ment (WQM) plan approved under sec- (b) Subject to the limitations set
tion 208 or section 303(e) of the Act; and forth in § 35.930–4, achievement of appli-
that the applicant is the wastewater cable effluent limitations established
management agency designated in any under the Act, or BPWTT (see § 35.917–
WQM plan certified by the Governor 1(d)(5)), including consideration, as ap-
and approved by the Regional Adminis- propriate, for the application of tech-
trator. nology which will provide for the re-
claiming or recycling of water or oth-
§ 35.925–3 Priority determination. erwise eliminate the discharge of pol-
That such works are entitled to pri- lutants;
ority in accordance with § 35.915, and (c) The sewer system evaluation and
that the award of grant assistance for rehabilitation requirements of § 35.927;
the proposed project will not jeopardize and
the funding of any treatment works of (d) The value engineering require-
higher priority. ments of § 35.926 (b) and (c).
446
§ 35.925–8 Environmental review. § 35.925–11 User charges and indus-

trial cost recovery.
(a) That, if the award is for step 2,
step 3, or step 2=3, the requirements of That, in the case of grant assistance
the National Environmental Policy Act for a project involving step 2 or step 3,
of 1969 (42 U.S.C. 4321 et seq.) applicable the grantee has complied or will com-
to the project step have been met. The ply with the requirements for user
grantee or grant applicant must pre- charge and industrial cost recovery
pare an adequate assessment of ex- systems. (See §§ 35.928 et seq., 35.929 et
seq., 35.935–13, and 35.935–15.)
pected environmental impacts, con-
(a) Grants awarded before July 1, 1979.
sistent with the requirements of part 6
Grantees must submit a schedule of
of this chapter, as part of facilities
implementation to show that their
planning, in accordance with § 35.917– user charge and industrial cost recov-
1(d)(7). The Regional Administrator ery systems will be approved in accord-
must insure that an environmental im- ance with the requirements of §§ 35.935–
pact statement or a negative declara- 13 and 35.935–15.
tion is prepared in accordance with (b) Grants awarded after June 30, 1979.
part 6 of this chapter (particularly The grantee’s user charge and indus-
§§ 6.108, 6.200, 6.212, and 6.504) in con- trial cost recovery systems must be ap-
junction with EPA review of a facility proved before the award of step 3 grant
plan and issued before any award of assistance.
step 2 or step 3 grant assistance. (c) Letters of intent. In the case of any
(b) The Regional Administrator may grant assistance for a project involving
not award step 2 or step 3 grant assist- step 2 or step 3, the applicant must
ance if the grantee has not made, or have received signed letters of intent
agreed to make, pertinent changes in from each significant industrial user
the project, in accordance with deter- stating that it will pay that portion of
minations made in a negative declara- the grant amount allocable to the
tion or environmental impact state- treatment of its wastes. Each such let-
ment. He may condition a grant to enter shall also include a statement of
sure that the grantee will comply, or the industrial user’s intended period of
seek to obtain compliance, with such use of the treatment works. A signifi-
environmental review determinations. cant industrial user is one that will
The conditions may address secondary contribute greater than 10 percent of
impacts to the extent deemed appro- the design flow or design pollutant
priate by the Regional Administrator. loading of the treatment works. In ad-
dition, the applicant must agree to re-
§ 35.925–9 Civil rights. quire all industrial users to pay that
portion of the grant amount allocable
That if the award of grant assistance to the treatment of wastes from such
is for a project involving step 2 or step users.
3, the applicable requirements of the
Civil Rights Act of 1964 and part 7 of § 35.925–12 Property.
this chapter have been met. That the applicant has demonstrated
to the satisfaction of the Regional Ad-
§ 35.925–10 Operation and mainte- ministrator that it has met or will met
nance program.
the property requirements of § 35.935–3.
If the award of grant assistance is for
a step 3 project, that the applicant has § 35.925–13 Sewage collection system.
made satisfactory provision to assure That, if the project involves sewage
proper and efficient operation and collection system work, such work (a)
maintenance of the treatment works is for the replacement or major reha-
(including the sewer system), in ac- bilitation of an existing sewer system
cordance with § 35.935–12, and that the under § 35.927–3(a) and is necessary to
State will have an effective operation the total integrity and performance of
and maintenance monitoring program the waste treatment works serving the
to assure that treatment works as- community, or (b) is for a new sewer
sisted under this subpart comply with system in a community in existence on
applicable permit and grant conditions. October 18, 1972, which has sufficient
447
§ 35.925–14 40 CFR Ch. I (7–1–00 Edition)
existing or planned capacity to ade- § 35.925–15 Treatment of industrial

quately treat such collected sewage. wastes.
Replacement or major rehabilitation of That the allowable project costs do
an existing sewer system may be ap- not include (a) costs of interceptor or
proved only if cost-effective; the result collector lines constructed exclusively,
must be a sewer system design capac- or almost exclusively, to serve indus-
ity equivalent to that of the existing trial sources or (b) costs allocable to
system plus a reasonable amount for the treatment for control or removal of
future growth. For purposes of this sec- pollutants in wastewater introduced
tion, a community would include any into the treatment works by industrial
area with substantial human habi- sources, unless the applicant is re-
tation on October 18, 1972, as deter- quired to remove such pollutants intro-
mined by an evaluation of each tract duced from nonindustrial sources. The
(city blocks or parcels of 5 acres or less project must be included in a complete
where city blocks do not exist). No waste treatment system, a principal
award may be made for a new sewer purpose of which project (as defined by
system in a community in existence on the Regional Administrator; see
October 18, 1972, unless the Regional §§ 35.903 (d) and 35.905) and system is the
Administrator further determines that: treatment of domestic wastes of the
(a) The bulk (generally two-thirds) of entire community, area, region or the
the expected flow (flow from existing district concerned. See the pretreat-
plus projected future habitations) from ment regulations in part 403 of this
the collection system will be for waste chapter and § 35.907.
waters originating from the commu-
nity (habitations) in existence on Octo- [44 FR 39340, July 5, 1979]
ber 18, 1972;
(b) The collection system is cost-ef- § 35.925–16 Federal activities.
fective; That the allowable step 2 or step 3
(c) The population density of the area project costs do not include the propor-
to be served has been considered in de- tional costs allocable to the treatment
termining the cost-effectiveness of the of wastes from major activities of the
proposed project: Federal Government. A ‘‘major activ-
(d) The collection system conforms ity’’ includes any Federal facility
with any approved WQM plan, other en- which contributes either (a) 250,000 gal-
vironmental laws in accordance with lons or more per day or (b) 5 percent or
§ 35.925–14, Executive Orders on Wet- more of the total design flow of waste
lands and Floodplains and Agency pol- treatment works, whichever is less.
icy on wetlands and agricultural lands;
and § 35.925–17 Retained amounts for re-
construction and expansion.
(e) The system would not provide ca-
pacity for new habitations or other es- That the allowable project costs have
tablishments to be located on environ- been reduced by an amount equal to
mentally sensitive land such as wet- the unexpended balance of the amounts
lands, floodplains or prime agricultural the applicant retains for future recon-
lands. Appropriate and effective grant struction and expansion under § 35.928–
conditions, (e.g., restricting sewer 2(a)(2)(ii), together with interest
hook-up) should be used where nec- earned.
essary to protect these resources from
new development. § 35.925–18 Limitation upon project
costs incurred prior to award.
§ 35.925–14 Compliance with environ- That project construction has not
mental laws. been initiated before the approved date
That the treatment works will com- of initiation of construction (as defined
ply with all pertinent requirements of in § 35.905), unless otherwise provided in
applicable Federal, State and local en- this section.
vironmental laws and regulations. (See (a) Step 1 or Step 2: No grant assist-
§ 30.101 and subpart C of part 30 of this ance is authorized for step 1 or step 2
chapter and the Clean Air Act.) project work performed before award of
448
a step 1 or step 2 grant. However, pay- sequent treatment works project, but
ment is authorized, in conjunction will allow payment for the previously
with the first award of grant assist- approved costs as allowable project
ance, for all preaward allowable project costs upon subsequent award of grant
costs in the following cases: assistance, if requested before grant
(1) Step 1 work begun after the date award (see § 35.945(a)). In instances
of approval by the Regional Adminis- where such approval is obtained, the
trator of a plan of study, if the State applicant proceeds at its own risk,
requests and the Regional Adminis- since payment for such costs cannot be
trator has reserved funds for the step 1 made unless grant assistance for the
grant. However, the step 1 grant must project is awarded.
be applied for and awarded within the [43 FR 44049, Sept. 27, 1978, as amended at 44
allotment period of the reserved funds. FR 39340, July 5, 1979]
(2) Step 1 or step 2 work begun after
October 31, 1974, but before June 30, § 35.925–19 [Reserved]
1975, in accordance with an approved
plan of study or an approved facilities § 35.925–20 Procurement.
plan, as appropriate, but only if a grant That the applicant has complied or
is awarded before April 1, 1981. will comply with the applicable provi-
(3) Step 1 or step 2 work begun before sions of §§ 35.935 through 35.939 with re-
November 1, 1974, but only if a grant is spect to procurement actions taken be-
awarded before April 1, 1980. fore the award of step 1, 2, or 3 grant
(b) Step 3: Except as otherwise pro- assistance, such as submission of the
vided in this paragraph, no grant as- information required under § 35.937–6.
sistance for a step 3 project may be
awarded unless the award precedes ini- § 35.925–21 Storm sewers.
tiation of the step 3 construction. Pre- That, under section 211(c) of the Act,
liminary step 3 work, such as advance the allowable project costs do not in-
acquisition of major equipment items clude costs of treatment works for con-
requiring long lead times, acquisition trol of pollutant discharges from a sep-
of eligible land or of an option for the arate storm sewer system (as defined in
purchase of eligible land, or advance § 35.905).
construction of minor portions of
treatment works, including associated § 35.926 Value engineering (VE).
engineering costs, in emergencies or (a) Value engineering proposal. All
instances where delay could result in step 2 grant applications for projects
significant cost increases, may be ap- having a projected total step 3 grant el-
proved by the Regional Administrator igible cost of $10 million or more, ex-
after completion of environmental re- cluding the cost for interceptor and
view, but only if (1) the applicant sub- collector sewers, will contain a VE
mits a written and adequately substan- commitment. The VE proposal sub-
tiated request for approval and (2) writ- mitted during step 2 must contain
ten approval by the Regional Adminis- enough information to determine the
trator is obtained before initiation of adequacy of the VE effort and the jus-
the advance acquisition or advance tification of the proposed VE fee. Es-
construction. (In the case of authoriza- sential information shall include:
tion for acquisition of eligible land, the (1) Scope of VE analysis;
applicant must submit a plat which (2) VE team and VE coordinator
shows the legal description of the prop- (names and background);
erty to be acquired, a preliminary lay- (3) Level of VE effort;
out of the distribution and drainage (4) VE cost estimate;
systems, and an explanation of the in- (5) VE schedule in relation to project
tended method of acquiring the prop- schedule (including completion of VE
erty.) analysis and submittal of VE summary
(c) The approval of a plan of study, a reports).
facilities plan, or advance acquisition (b) Value engineering analysis. For
of equipment or advance construction projects subject to the VE require-
will not constitute a commitment for ments of paragraph (a) of this section,
approval of grant assistance for a sub- a VE analysis of the project design
449
§ 35.927 40 CFR Ch. I (7–1–00 Edition)
shall be performed. When the VE anal- should be the minimum necessary to

ysis is completed, a preliminary report enable him to make a judgment.
summarizing the VE findings and a (c) Guidelines on sewer system eval-
final report describing implementation uation published by the Administrator
of the VE recommendations must be provide further advisory information
submitted to the project officer on a (see § 35.900(c)). Also see §§ 35.925–7(c)
schedule approved by him. and 35.935–16.
(c) Implementation. For those projects
for which a VE analysis has been per- § 35.927–1 Infiltration/inflow analysis.
formed in accordance with paragraph
(b) of this section, VE recommenda- (a) The infiltration/inflow analysis
tions shall be implemented to the max- shall demonstrate the nonexistence or
imum extent feasible, as determined by possible existence of excessive infiltra-
the grantee, subject to the approval of tion/inflow in the sewer system. The
the EPA project officer. Rejection of analysis should identify the presence,
any recommendation shall be on the flow rate, and type of infiltration/in-
basis of cost-effectiveness, reliability, flow conditions which exist in the
extent of project delays, and other fac- sewer system.
tors that may be critical to the treat- (b) For determination of the possible
ment processes and the environmental existence of excessive infiltration/in-
impact of the project. flow, the analysis shall include an esti-
mate of the cost of eliminating the in-
§ 35.927 Sewer system evaluation and filtration/inflow conditions. These
rehabilitation.
costs shall be compared with estimated
(a) All applicants for step 2 or step 3 total costs for transportation and
grant assistance must demonstrate to treatment of the infiltration/inflow.
the Regional Administrator’s satisfac- Cost-effectiveness analysis guidelines
tion that each sewer system dis- (Appendix A to this subpart) should be
charging into the treatment works
consulted with respect to this deter-
project for which grant application is
mination.
made is not or will not be subject to
excessive infiltration/inflow. A deter- (c) If the infiltration/inflow analysis
mination of whether excessive infiltra- demonstrates the existence or possible
tion/inflow exists may take into ac- existence of excessive infiltration/in-
count, in addition to flow and related flow a detailed plan for a sewer system
data, other significant factors such as evaluation survey shall be included in
cost-effectiveness (including the cost of the analysis. The plan shall outline the
substantial treatment works construc- tasks to be performed in the survey
tion delay, see appendix A to this sub- and their estimated costs.
part), public health emergencies, the
effects of plant bypassing or over- § 35.927–2 Sewer system evaluation
loading, or relevant economic or envi- survey.
ronmental factors. (a) The sewer system evaluation sur-
(b) A sewer system evaluation will vey shall identify the location, esti-
generally be used to determine whether mated flow rate, method of rehabilita-
or not excessive infiltration/inflow ex- tion and cost of rehabilitation versus
ists. It will consist of: cost of transportation and treatment
(1) Certification by the State agency, for each defined source of infiltration/
as appropriate; and, when necessary, inflow.
(2) An infiltration/inflow analysis;
(b) A report shall summarize the re-
and, if appropriate,
sults of the sewer system evaluation
(3) A sewer system evaluation survey
survey. In addition, the report shall in-
and, if appropriate, a program, includ-
ing an estimate of costs, for rehabilita- clude:
tion of the sewer system to eliminate (1) A justification for each sewer sec-
excessive infiltration/inflow identified tion cleaned and internally inspected.
in the sewer system evaluation. Infor- (2) A proposed rehabilitation program
mation submitted to the Regional Ad- for the sewer system to eliminate all
ministrator for such determination defined excessive infiltration/inflow.
450
§ 35.927–3 Rehabilitation. completion of construction. The ordi-

(a) Subject to State concurrence, the nance shall prohibit any new connec-
Regional Administrator may authorize tions from inflow sources into the sani-
the grantee to perform minor rehabili- tary sewer portions of the sewer sys-
tation concurrently with the sewer system and shall insure that new sewers
tem evaluation survey in any step and connections to the sewer system
under a grant if sufficient funding can are properly designed and constructed.
be made available and there is no ad-
verse environmental impact. However, § 35.927–5 Project procedures.
minor rehabilitation work in excess of (a) State certification. The State agen-
$10,000 which is not accomplished with cy may (but need not) certify that ex-
force account labor (see § 35.936– cessive infiltration/inflow does or does
14(a)(2)), must be procured through for- not exist. The Regional Administrator
mal advertising in compliance with the will determine that excessive infiltra-
applicable requirements of §§ 35.938 et tion/inflow does not exist on the basis
seq. and 35.939, the statutory require- of State certification, if he finds that
ments referenced in §§ 30.415 through the State had adequately established
30.415–4 of this subchapter, and other the basis for its certification through
applicable provisions of part 30. submission of only the minimum infor-
(b) Grant assistance for a step 3 mation necessary to enable a judgment
project segment consisting of major re- to be made. Such information could in-
habilitation work may be awarded conclude a preliminary review by the ap-
currently with step 2 work for the de- plicant or State, for example, of such
sign of the new treatment works. parameters as per capita design flow,
(c) The scope of each treatment ratio of flow to design flow, flow
works project defined within the facili- records or flow estimates, bypasses or
ties plan as being required for imple-
overflows, or summary analysis of
mentation of the plan, and for which
hydrological, geographical, and geo-
Federal assistance will be requested,
logical conditions, but this review
shall define (1) any necessary new
would not usually be equivalent to a
treatment works construction and (2)
complete infiltration/inflow analysis.
any rehabilitation work (including re-
placement) determined by the sewer State certification must be on a
system evaluation to be necessary for project-by-project basis. If, on the basis
the elimination of excessive infiltra- of State certification, the Regional Ad-
tion/inflow. However, rehabilitation ministrator determines that the treat-
which should be a part of the appli- ment works is or may be subject to ex-
cant’s normal operation and mainte- cessive infiltration/inflow, no step 2 or
nance responsibilities shall not be in- step 3 grant assistance may be awarded
cluded within the scope of a step 3 except as paragraph (c) of this section
treatment works project. provides.
(d) Only rehabilitation of the grant- (b) Pre-award sewer system evaluation.
ee’s sewage collection system is eligi- Generally, except as otherwise pro-
ble for grant assistance. However, the vided in paragraph (c) of this section,
grantee’s costs of rehabilitation be- an adequate sewer system evaluation,
yond ‘‘Y’’ fittings (see definition of consisting of a sewer system analysis
‘‘sewage collection system’’ in § 35.905) and, if required, an evaluation survey,
may be treated on an incremental cost is an essential element of step 1 facili-
basis. ties planning. It is a prerequisite to the
award of step 2 or 3 grant assistance. If
§ 35.927–4 Sewer use ordinance. the Regional Administrator determines
Each applicant for grant assistance through State Certification or an infil-
for a step 2 or step 3 project shall dem- tration/inflow analysis that excessive
onstrate to the satisfaction of the Re- infiltration/inflow does not exist, step 2
gional Administrator that a sewer use or 3 grant assistance may be awarded.
ordinance or other legally binding re- If on the basis of State certification or
quirement will be enacted and enforced the infiltration/inflow analysis, the Re-
in each jurisdiction served by the gional Administrator determines that
treatment works project before the possible excessive infiltration/inflow
451
§ 35.928 40 CFR Ch. I (7–1–00 Edition)
exists, an adequate sewer system eval- ments in §§ 35.928–1 through 35.928–4.

uation survey and, if required, a reha- The grantee shall be subject to the
bilitation program must be furnished, noncompliance provisions of § 35.965 for
except as set forth in paragraph (c) of failure to comply.
this section before grant assistance for (b) Grantees awarded step 3 grants
step 2 or 3 can be awarded. A step 1 under regulations promulgated on Feb-
grant may be awarded for the comple- ruary 11, 1974, or grantees who obtained
tion of this segment of step 1 work, approval of their industrial cost recov-
and, upon completion of step 1, grant ery systems before April 25, 1978, may
assistance for a step 2 or 3 project (for amend their systems to correspond to
which priority has been determined the definition of industrial users in
under § 35.915) may be awarded. § 35.905 or to provide for systemwide in-
(c) Exception. If the Regional Admin- dustrial cost recovery under § 35.928–
istrator determines that the treatment 1(g).
works would be regarded (in the ab-
sence of an acceptable program of cor- § 35.928–1 Approval of the industrial
rection) as being subject to excessive cost recovery system.
infiltration/inflow, grant assistance The Regional Administrator may ap-
may be awarded if the applicant estab- prove an industrial cost recovery sys-
lishes to the Regional Administrator’s tem if it meets the following require-
satisfaction that the treatment works ments:
project for which grant application is (a) General. Each industrial user of
made will not be significantly changed the treatment works shall pay an an-
by any subsequent rehabilitation pro- nual amount equal to its share of the
gram or will be a component part of total amount of the step 1, 2, and 3
any rehabilitated system. The appli- grants and any grant amendments
cant must agree to complete the sewer awarded under this subpart, divided by
system evaluation and any resulting the number of years in the recovery pe-
rehabilitation on an implementation riod. An industrial user’s share shall be
schedule the State accepts (subject to based on factors which significantly in-
approval by the Regional Adminis- fluence the cost of the treatment
trator), which shall be inserted as a works. Volume of flow shall be a factor
special condition in the grant agree- in determining an industrial user’s
ment. share in all industrial cost recovery
(d) Regional Administrator review. Mu- systems; other factors shall include
nicipalities may submit through the strength, volume, and delivery flow
State agency the infiltration/inflow rate characteristics, if necessary, to in-
analysis and, when appropriate, the sure that all industrial users of the
sewer system evaluation survey to the treatment works pay a proportionate
Regional Administrator for his review distribution of the grant assistance al-
at any time before application for a locable to industrial use.
treatment works grant. Based on such (b) Industrial cost recovery period. The
a review, the Regional Administrator industrial cost recovery period shall be
shall provide the municipality with a equal to 30 years or to the useful life of
written response indicating either his the treatment works, whichever is less.
concurrence or nonconcurrence. In (c) Frequency of payment. Except as
order for the survey to be an allowable provided in § 35.928–3, each industrial
cost, the Regional Administrator must user shall pay not less often than annu-
concur with the sewer system evalua- ally. The first payment by an indus-
tion survey plan before the work is per- trial user shall be made not later than
formed. 1 year after the user begins use of the
treatment works.
§ 35.928 Requirements for an indus- (d) Reserve capacity. If an industrial
trial cost recovery system. user enters into an agreement with the
(a) The Regional Administrator shall grantee to reserve a certain capacity in
approve the grantee’s industrial cost the treatment works, the user’s indus-
recovery system and the grantee shall trial cost recovery payments shall be
implement and maintain it in accord- based on the total reserved capacity in
ance with § 35.935–15 and the require- relation to the design capacity of the
452
treatment works. If the discharge of an (i) Inconsistent agreements. The grant-

industrial user exceeds the reserved ca- ee may have pre-existing agreements
pacity in volume, strength or delivery which address (1) the reservation of ca-
flow rate characteristics, the user’s in- pacity in the grantee’s treatment
dustrial cost recovery payment shall be works or (2) the charges to be collected
increased to reflect the actual use. If by the grantee in providing waste
there is no reserve capacity agreement water treatment services or reserving
between the industrial user and the capacity. The industrial cost recovery
grantee, and a substantial change in system shall take precedence over any
the strength, volume, or delivery flow terms or conditions of agreements or
rate characteristics of an industrial contracts between the grantee and in-
user’s discharge share occurs, the dustrial users which are inconsistent
user’s share shall be adjusted propor- with the requirements of section
tionately. 204(b)(1)(B) of the Act and these indus-
(e) Upgrading and expansion. (1) If the trial cost recovery regulations.
treatment works are upgraded, each [43 FR 44049, Sept. 27, 1978, as amended at 44
existing industrial user’s share shall be FR 10304, Feb. 16, 1979; 44 FR 39340, July 5,
adjusted proportionately. 1979]
(2) If the treatment works are ex-
§ 35.928–2 Use of industrial cost recov-
panded, each industrial user’s share ery payments.
shall be adjusted proportionately, ex-
cept that a user with reserved capacity (a) The grantee shall use industrial
under paragraph (d) of this section cost recovery payments received from
shall incur no additional industrial industrial users as follows:
cost recovery charges unless the user’s (1) The grantee shall return 50 per-
actual use exceeded its reserved capac- cent of the amounts received from in-
ity. dustrial users, together with any inter-
est earned, to the U.S. Treasury annu-
(f) [Reserved]
ally.
(g) Collection of industrial cost recovery
(2) The grantee shall retain 50 per-
payments. Industrial cost recovery pay- cent of the amount recovered from in-
ments may be collected on a system- dustrial users.
wide or on a project-by-project basis. (i) A portion of the amounts which
The total amount collected from all in- the grantee retains may be used to pay
dustrial users on a systemwide basis the incremental costs of administra-
shall equal the sum of the amounts tion of the industrial cost recovery sys-
which would be collected on a project- tem. The incremental costs of adminis-
by-project basis. tration are those costs remaining after
(h) Adoption of system. One or more deducting all costs reasonably attrib-
municipal legislative enactments or utable to the administration of the
other appropriate authority must in- user charge system. The incremental
corporate the industrial cost recovery costs shall be segregated from all other
system. If the project is a regional administrative costs of the grantee.
treatment works accepting waste-wa- (ii) A minimum of 80 percent of the
ters from other municipalities, the sub- amounts the grantee retains after pay-
scribers receiving waste treatment ing the incremental costs of adminis-
services from the grantee shall adopt tration, together with any interest
industrial cost recovery systems in ac- earned, shall be used for the allowable
cordance with section 204(b)(1)(B) of costs (see § 35.940) of any expansion, up-
the Act with §§ 35.928 through 35.928–4. grading or reconstruction of treatment
These industrial cost recovery systems works necessary to meet the require-
shall also be incorporated in appro- ments of the Act. The grantee shall ob-
priate municipal legislative enact- tain the written approval of the Re-
ments or other appropriate authority gional Administrator before the com-
of all municipalities contributing mitment of the amounts retained for
wastes to the treatment works. The expansion, upgrading, or reconstruc-
public shall be consulted prior to adoption.
tion of the industrial cost recovery sys- (iii) The remainder of the amounts
tem, in accordance with 40 CFR part 25. retained by the grantee may be used as
453
§ 35.928–3 40 CFR Ch. I (7–1–00 Edition)
the grantee sees fit, except that they or continue operating approved indus-
may not be used for construction of in- trial cost recovery systems and main-
dustrial pretreatment facilities or retain their activities of monitoring
bates to industrial users for costs inflows, calculating payments due, and
curred in complying with user charge submitting bills to industrial users in-
or industrial cost recovery require- forming them of their current or de-
ments. ferred obligation.
(b) Pending the use of industrial cost (c) Industrial users as defined in
recovery payments, as described in paragraphs (a) and (b) of the definition
paragraph (a) of this section, the grant- in § 35.905 who are served by grantees
ee shall: who defer payment during the 18-
(1) Invest the amounts received in ob- month period ending June 30, 1979,
ligations of the U.S. Government or in shall make industrial cost recovery
obligations guaranteed as to principal payments for that period in a lump
and interest by the U.S. Government or sum by June 30, 1980, or in equal annual
any agency thereof; or installments prorated from July 1, 1979,
(2) Deposit the amounts received in over the remaining industrial cost re-
accounts fully collateralized by obliga- covery period.
tions of the U.S. Government or any
agency thereof. § 35.929 Requirements for user charge
system.
§ 35.928–3 Implementation of the in- The Regional Administrator shall ap-
dustrial cost recovery system. prove the grantee’s user charge system
(a) When a grantee’s industrial cost and the grantee shall implement and
recovery system is approved, imple- maintain it in accordance with § 35.935–
mentation of the approved system shall 13 and the requirements in §§ 35.929–1
become a condition of the grant. through 35.929–3. The grantee shall be
(b) The grantee shall maintain all subject to the noncompliance provi-
records that are necessary to document sions of § 35.965 for failure to comply.
compliance with these regulations.
§ 35.929–1 Approval of the user charge
§ 35.928–4 Moratorium on industrial system.
cost recovery payments. The Regional Administrator may ap-
(a) EPA does not require that indus- prove a user charge system based on ei-
trial users defined in paragraphs (a) ther actual use under paragraph (a) of
and (b) of the definition in § 35.905 pay this section or ad valorem taxes under
industrial cost recovery for charges in- paragraph (b) of this section. The gen-
curred during the period after Decem- eral requirements in §§ 35.929–2 and
ber 31, 1977, and before July 1, 1979. Any 35.929–3 must also be satisfied.
industrial cost recovery charges in- (a) User charge system based on actual
curred for accounting periods or por- use. A grantee’s user charge system
tions of periods ending before January based on actual use (or estimated use)
1, 1978, shall be paid by industrial of waste water treatment services may
users. These funds are to be used as de- be approved if each user (or user class)
scribed in § 35.928–2. pays its proportionate share of oper-
(b) Grantees may either defer indus- ation and maintenance (including re-
trial cost recovery payments, or replacement) costs of treatment works
quire industrial users as defined in within the grantee’s service area, based
paragraphs (a) and (b) of the definition on the user’s proportionate contribu-
in § 35.905 to pay industrial cost recov- tion to the total waste water loading
ery payments for the period after De- from all users (or user classes). To in-
cember 31, 1977, and before July 1, 1979. sure a proportional distribution of op-
If grantees require payment, the eration and maintenance costs to each
amount held by the municipality for user (or user class), the user’s contribu-
eventual return to the U.S. Treasury tion shall be based on factors such as
under § 35.928–2(a)(1) shall be invested strength, volume, and delivery flow
as required under § 35.928–2(b) until rate characteristics.
EPA advises how such sums shall be (b) User charges based on ad valorem
distributed. Grantees shall implement taxes. A grantee’s user charge system
454
(or the user charge system of a sub- or a charter established under State
scriber, i.e., a constituent community law existed on December 27, 1977, which
receiving waste treatment services required the subscriber to pay its share
from the grantee) which is based on ad of the cost of waste water treatment
valorem taxes may be approved if it services.
meets the requirements of paragraphs (4) A user charge system funded by
(b)(1) through (b)(7) of this section. If dedicated ad valorem taxes shall estab-
the Regional Administrator determines lish, as a minimum, the classes of users
that the grantee did not have a dedi- listed below:
cated ad valorem tax system on De- (i) Residential users, including sin-
cember 27, 1977, meeting the require- gle-family and multifamily dwellings,
ments of paragraphs (b)(1) through and small nonresidential users, includ-
(b)(3) of this section, the grantee shall ing nonresidential commercial and in-
develop a user charge system based on dustrial users which introduce no more
actual use under § 35.929–1(a). than the equivalent of 25,000 gallons
(1) The grantee (or subscriber) had in per day of domestic sanitary wastes to
existence on December 27, 1977, a sys- the treatment works:
tem of ad valorem taxes which col- (ii) Industrial and commercial users;
lected revenues to pay the cost of oper-
(A) Any nongovernmental user of
ation and maintenance of waste water
publicly owned treatment works which
treatment works within the grantee’s
discharges more than 25,000 gallons per
service area and has continued to use
day (gpd) of sanitary waste; or a vol-
that system.
ume of process waste, or combined
(2) The grantee (or subscriber) has
not previously obtained approval of a process and sanitary waste, equivalent
user charge system on actual use. to 25,000 gpd of sanitary waste. The
(3) The system of ad valorem taxes in grantee, with the Regional Administra-
existence on December 27, 1977, was tor’s approval, shall define the
dedicated ad valorem tax system. strength of the residential discharges
(i) A grantee’s system will be consid- in terms of parameters including, as a
ered to be dedicated if the Regional Ad- minimum, biochemical oxygen demand
ministrator determines that the sys- (BOD) and suspended solids (SS) per
tem meets all of the following criteria: volume of flow. Dischargers with a vol-
(A) The ad valorem tax system pro- ume exceeding 25,000 gpd or the weight
vided for a separate tax rate or for the of BOD or SS equivalent to that weight
allocation of a portion of the taxes col- found in 25,000 gpd of sanitary waste
lected for payment of the grantee’s are considered industrial users.
costs of waste water treatment serv- (B) Any nongovernmental user of a
ices; publicly owned treatment works which
(B) The grantee’s budgeting and ac- discharges wastewater to the treat-
counting procedures assured that a ment works which contains toxic pol-
specified portion of the tax funds would lutants or poisonous solids, liquids, or
be used for the payment of the costs of gases in sufficient quantity either sin-
operation and maintenance; gly or by interaction with other
(C) The ad valorem tax system col- wastes, to contaminate the sludge of
lected tax funds for the costs of waste any municipal systems, or to injure or
water treatment services which could to interfere with any sewage treatment
not be or historically were not used for process, or which constitutes a hazard
other purposes; and to humans or animals, creates a public
(D) The authority responsible for the nuisance, or creates any hazard in or
operation and maintenance of the has an adverse effect on the waters re-
treatment works established the budg- ceiving any discharge from the treat-
et for the costs of operation and main- ment works.
tenance and used those specified (iii) Users which pay no ad valorem
amounts solely to pay the costs of op- taxes or receive substantial credits in
eration and maintenance. paying such taxes, such as tax exempt
(ii) A subscriber’s system based on ad institutions or governmental users, but
valorem taxes will be considered to be excluding publicly owned facilities per-
dedicated if a contractual agreement forming local governmental functions
455
§ 35.929–2 40 CFR Ch. I (7–1–00 Edition)
(e.g., city office building, police sta- to pay the costs of operation and main-
tion, school) which discharge solely do- tenance of the treatment works, and
mestic wastes. that designated rate is uniformly ap-
(5) The grantee must be prepared to plied to all members of this class:
demonstrate for the Regional Adminis- (ii) A system of surcharges and re-
trator’s approval that its system of bates is employed to adjust the reve-
evaluating the volume, strength, and nues from the ad valorem taxes col-
characteristics of the discharges from lected from each user of this class in
users or categories of users classified accordance with the rate designated
within the subclass of small nonresi- under paragraph (b)(7)(i) of this sec-
dential users is sufficient to assure tion, such that each member of the
that such users or the average users in class pays a total charge for its share
such categories do not discharge either of the costs of operation and mainte-
toxic pollutants or more than the nance based upon actual use.
equivalent of 25,000 gallons per day of
domestic wastewater. § 35.929–2 General requirements for all
(6) The ad valorem user charge sys- user charge systems.
tem shall distribute the operation and User charge systems based on actual
maintenance costs for all treatment use under § 35.929–1(a) or ad valorem
works in the grantee’s jurisdiction to taxes under § 35.929–1(b) shall also meet
the residential and small nonresi- the following requirements:
dential user class, in proportion to the
(a) Initial basis for operation and main-
use of the treatment works by this
tenance charges. For the first year of
class. The proportional allocation of
operation, operation and maintenance
costs for this user class shall take into
charges shall be based upon past expe-
account the total waste water loading
rience for existing treatment works or
of the treatment works, the con-
some other method that can be dem-
stituent elements of the wastes from
onstrated to be appropriate to the level
this user class and other appropriate
and type of services provided.
factors. The grantee may assess one ad
valorem tax rate to this entire class of (b) Biennial review of operation and
users or, if permitted under State law, maintenance charges. The grantee shall
the grantee may assess different ad va- review not less often than every 2 years
lorem tax rates for the subclass of resi- the waste water contribution of users
dential users and the subclass of small and user classes, the total costs of op-
nonresidential users provided the oper- eration and maintenance of the treat-
ation and maintenance costs are dis- ment works, and its approved user
tributed proportionately between these charge system. The grantee shall revise
subclasses. the charges for users or user classes to
(7) Each member of the industrial accomplish the following:
and commercial user class described (1) Maintain the proportionate dis-
under paragraph (b)(4)(ii) of this sec- tribution of operation and maintenance
tion and of the user class which pays costs among users and user classes as
no ad valorem taxes or receives sub- required herein;
stantial credits in paying such taxes (2) Generate sufficient revenue to pay
described under paragraph (b)(4)(iii) of the total operation and maintenance
this section shall pay its share of the costs necessary to the proper operation
costs of operation and maintenance of and maintenance (including replace-
the treatment works based upon ment) of the treatment works; and
charges for actual use (in accordance (3) Apply excess revenues collected
with § 35.929–1(a)). The grantee may use from a class of users to the costs of op-
its ad valorem tax system to collect, in eration and maintenance attributable
whole or in part, those charges from to that class for the next year and ad-
members of the industrial and large just the rate accordingly.
commercial class where the following (c) Toxic pollutants. The user charge
conditions are met: system shall provide that each user
(i) A portion or all of the ad valorem which discharges any toxic pollutants
tax rate assessed to members of this which cause an increase in the cost of
class has been specifically designated managing the effluent or the sludge of
456
the grantee’s treatment works shall works, or (2) the charges to be col-
pay for such increased costs. lected by the grantee in providing
(d) Charges for operation and mainte- wastewater treatment services or re-
nance for extraneous flows. The user serving capacity. The user charge sys-
charge system shall provide that the tem shall take precedence over any
costs of operation and maintenance for terms or conditions of agreements or
all flow not directly attributable to contracts between the grantee and
users (i.e., infiltration/inflow) be dis- users (including industrial users, spe-
tributed among all users of the grant- cial districts, other municipalities, or
ee’s treatment works system based Federal agencies or installations)
upon either of the following: which are inconsistent with the re-
(1) In the same manner that it dis- quirements of section 204(b)(1)(A) of
tributes the costs of operation and the Act and these regulations.
maintenance among users (or user (h) Costs of pretreatment program. A
classes) for their actual use, or user charge system submitted by a mu-
(2) Under a system which uses one of nicipality with an approved pretreat-
any combination of the following fac- ment program shall provide that the
tors on a reasonable basis: costs necessary to carry out the pro-
(i) Flow volume of the users; gram and to comply with any applica-
(ii) Land area of the users; ble requirements of section 405 of the
(iii) Number of hookups or discharges Act and related regulations are in-
to the users; cluded within the costs of operation
(iv) Property valuation of the users, and maintenance of the system and
if the grantee has a user charge system paid through user charges, or are paid
based on ad valorem taxes approved in whole or in part by other identified
under § 35.929–1(b). sources of funds.
(e) Adoption of system. One or more [43 FR 44049, Sept. 27, 1978, as amended at 44
municipal legislative enactments or FR 10304, Feb. 16, 1979]
other appropriate authority must in-
corporate the user charge system. If § 35.929–3 Implementation of the user
the project is a regional treatment sys- charge system.
tem accepting wastewaters from other (a) When a grantee’s user charge sys-
municipalities, the subscribers receiv- tem is approved, implementation of the
ing waste treatment services from the approved system shall become a condi-
grantee shall adopt user charge sys- tion of the grant.
tems in accordance with section (b) The grantee shall maintain such
204(b)(1)(A) of the Act and §§ 35.929 records as are necessary to document
through 35.929–3. These user charge sys- compliance with these regulations.
tems shall also be incorporated in ap- (c) Appendix B to this subpart con-
propriate municipal legislative enact- tains guidelines with illustrative ex-
ments or other appropriate authority amples of acceptable user charge sys-
of all municipalities contributing tems.
wastes to the treatment works. The (d) The Regional Administrator may
public shall be informed of the finan- review, no more often than annually, a
cial impact of the user charge system grantee’s user charge system to assure
on them and shall be consulted prior to that it continues to meet the require-
adoption of the system, in accordance ments of §§ 35.929–1 through 35.929–3.
with 40 CFR part 25.
(f) Notification. Each user charge sys- § 35.930 Award of grant assistance.
tem must provide that each user be no- The Regional Administrator’s ap-
tified, at least annually, in conjunction proval of an application or amend-
with a regular bill, of the rate and that ments to it through execution of a
portion of the user charges or ad valo- grant agreement (including a grant
rem taxes which are attributable to amendment), in accordance with
waste water treatment services. § 30.345 of this subchapter, shall con-
(g) Inconsistent agreements. The grant- stitute a contractual obligation of the
ee may have preexisting agreements United States for the payment of the
which address: (1) The reservation of Federal share of the allowable project
capacity in the grantee’s treatment costs, as determined by the Regional
457
§ 35.930–1 40 CFR Ch. I (7–1–00 Edition)
Administrator. Information about the training facilities or programs shall

approved project furnished in accord- not exceed $500,000.
ance with § 35.920–3 shall be considered (2) Any grantee who received a grant
incorporated in the grant agreement. under section 109(b) before December
27, 1977, is eligible to have the grant in-
§ 35.930–1 Types of projects.
creased by funds made available under
(a) The Regional Administrator is au- the Act, not to exceed 100 percent of el-
thorized to award grant assistance for igible costs.
the following types of projects:
(1) Step 1. A facilities plan and re- [43 FR 44049, Sept. 27, 1978, as amended at 44
lated step 1 elements (see § 35.920–3(b)), FR 39340, July 5, 1979]
if he determines that the applicant has
submitted the items required under § 35.930–2 Grant amount.
§ 35.920–3(a); (In the case of grant assist- The grant agreement shall set forth
ance awarded solely for the acquisition the amount of grant assistance. The
of eligible land, the following provi- grant amount may not exceed the
sions are deferred until the award of amount of funds available from the
the ensuing step 3 assistance for the State allotments and reallotments
construction of facilities: §§ 35.925–10, under § 35.910 et seq. Grant payments
35.925–11(b), 35.935–12 (c) and (d), 35.935– will be limited to the Federal share of
13(c), 35.935–15(c), 35.935–16 (b) and (c)); allowable project costs incurred within
(2) Step 2. Construction drawings and the grant amount or any increases ef-
specifications, if he determines that fected through grant amendments (see
the applicant has submitted the items
§ 35.955).
required under § 35.920–3(b);
(3) Step 3. Building and erection of a § 35.930–3 Grant term.
treatment works, if he determines that
the applicant has submitted the items The grant agreement shall establish
required under § 35.920–3(c); or the period within which the project
(4) Steps 2 and 3. A combination of de- must be completed, in accordance with
sign (step 2) and construction (step 3) § 30.345–1 of this chapter. This time pe-
for a treatment works (see § 35.909) if he riod is subject to extension for excus-
determines that the applicant has sub- able delay, at the discretion of the Re-
mitted the items required under gional Administrator.
§ 35.920–3(d).
(b) The Regional Administrator may § 35.930–4 Project scope.
award Federal assistance by a grant or The grant agreement must define the
grant amendment from any allotment scope of the project for which Federal
or reallotment available to a State assistance is awarded under the grant.
under § 35.910 et seq. for payment of 100 The project scope must include a step
percent of the cost of construction of or an identified segment. Grant assist-
treatment works required to train and ance may be awarded for a segment of
upgrade waste treatment works oper-
step 3 treatment works construction,
ations and maintenance personnel and
when that segment in and of itself does
for the costs of other operator training
not provide for achievement of applica-
programs. Costs of other operator
training programs are limited to mo- ble effluent discharge limitations, if:
bile training units, classroom rental, (a) The segment is to be a component
specialized instructors, and instruc- of an operable treatment works which
tional material, under section 109(b) of will achieve the applicable effluent dis-
the Act. charge limitations; and
(1) Where a grant is made to serve (b) A commitment for completion of
two or more States, the Administrator the entire treatment works is sub-
is authorized to make an additional mitted to the Regional Administrator
grant for a supplemental facility in and that commitment is reflected in a
each State. The Federal funds awarded special condition in the grant agree-
under section 109(b) to any State for all ment.
458
§ 35.930–5 Federal share. for the performance of the project (see

(a) General. The grant shall be 75 per- § 30.900 of this subchapter). Delay in
cent of the estimated total cost of con- submission of the notice and excess
struction that the Regional Adminis- cost information may prejudice ap-
trator approves in the grant agree- proval of an increase in the grant
ment, except as otherwise provided in amount. The United States shall not be
paragraphs (b) and (c) of this section obligated to pay for costs incurred in
and in §§ 35.925–15, 35.925–16, 35.925–17, excess of the approved grant amount or
35.930–1(b), and paragraph 10 of appen- any amendment to it until the State
dix A. has approved an increase in the grant
(b) Innovative and alternative tech- amount from available allotments
nology. In accordance with § 35.908(b), under § 35.915 and the Regional Admin-
the amount of any step 2, step 3, or istrator has issued a written grant
step 2=3 grant assistance awarded from amendment under § 35.955.
funds allotted for fiscal years 1979, 1980, § 35.935 Grant conditions.
and 1981 shall be 85 percent of the esti-
mated cost of construction for those el- In addition to the EPA general grant
igible treatment works or significant conditions (subpart C and appendix A
portions of them that the Regional Ad- to part 30 of this subchapter), each
ministrator determines meet the cri- treatment works grant shall be subject
teria for innovative or alternative to the following conditions:
technology in appendix E. These grants
depend on the availability of funds § 35.935–1 Grantee responsibilities.
from the reserve under § 35.915–1(b). The (a) Review or approval of project
proportional State contribution to the plans and specifications by or for EPA
non-Federal share of construction costs is for administrative purposes only and
for 85-percent grants must be the same does not relieve the grantee of its re-
as or greater than the proportional sponsibility to design, construct, oper-
State contribution (if any) to the non- ate, and maintain the treatment works
Federal share of eligible construction described in the grant application and
costs for all treatment works which re- agreement.
ceive 75-percent grants in the State. (b) By its acceptance of the grant,
(c) Modification and replacement of in- the grantee agrees to complete the
novative and alternative projects. In ac- treatment works in accordance with
cordance with § 35.908(c) and procedures the facilities plan, plans and specifica-
published by EPA, the Regional Ad- tions, and related grant documents ap-
ministrator may award grant assist- proved by the Regional Administrator,
ance to fund 100 percent of the eligible and to maintain and operate the treat-
costs of the modification or replacement works to meet the enforceable re-
ment of any treatment works con- quirements of the Act for the design
structed with grant assistance based life of the treatment works. The Re-
upon a Federal share of 85 percent gional Administrator is authorized to
under paragraph (b) of this section. seek specific enforcement or recovery
of funds from the grantee, or to take
§ 35.930–6 Limitation on Federal share. other appropriate action (see § 35.965), if
The grantee must exert its best ef- he determines that the grantee has
forts to perform the project work as failed to make good faith efforts to
specified in the grant agreement within meet its obligations under the grant.
the approved cost ceiling. If at any (c) The grantee agrees to pay, pursu-
time the grantee believes that the ant to section 204(a)(4) of the Act, the
costs which it expects to incur in the non-Federal costs of treatment works
performance of the project will exceed construction associated with the
or be substantially less than the pre- project and commits itself to complete
viously approved estimated total the construction of the operable treat-
project costs, the grantee must notify ment works and complete waste treat-
the Regional Administrator and the ment system (see definitions in § 35.905)
State agency promptly in writing. As of which the project is a part.
soon as practicable, the grantee must (d) The Regional Administrator may
give the revised estimate of total cost include special conditions in the grant
459
§ 35.935–2 40 CFR Ch. I (7–1–00 Edition)
or administer this subpart in the man- property until approval of the Regional
ner which he determines most appro- Administrator is obtained under
priate to coordinate with, restate, or § 35.940–3.
enforce NPDES permit terms and
schedules. § 35.935–4 Step 2=3 projects.
A grantee which has received step 2=3
§ 35.935–2 Procurement. grant assistance must make submittals
The grantee and party to any sub- required by § 35.920–3(c), together with
agreement must comply with the appli- approvable user charge and industrial
cable provisions of §§ 35.935 through cost recovery systems and a prelimi-
35.939 with respect to procurement for nary plan of operation. The Regional
step 1, 2, or 3 work. The Regional Ad- Administrator shall give written ap-
ministrator will cause appropriate re- proval of these submittals before ad-
view of grantee procurement to be vertising for bids on the step 3 con-
made. struction portion of the step 2=3
project. The cost of step 3 work initi-
§ 35.935–3 Property. ated before such approval is not allow-
(a) The grantee must comply with able. Failure to make the above sub-
the property provisions of § 30.810 et seq. mittals as required is cause for invok-
of this subchapter with respect to all ing sanctions under § 35.965.
property (real and personal) acquired
with project funds. § 35.935–5 Davis-Bacon and related
(b) With respect to real property (in- statutes.
cluding easements) acquired in connec- Before soliciting bids or proposals for
tion with the project, whether such step 3-type work, the grantee must
property is acquired with or in antici- consult with the Regional Adminis-
pation of EPA grant assistance or sole- trator concerning compliance with
ly with funds furnished by the grantee Davis-Bacon and other statutes ref-
or others: erenced in § 30.415 et seq. of this sub-
(1) The acquisition must be con- chapter.
ducted in accordance with part 4 of this
chapter; § 35.935–6 Equal employment oppor-
(2) Any displacement of a person by tunity.
or as a result of any acquisition of the Contracts involving step 3-type work
real property shall be conducted under of $10,000 or more are subject to equal
the applicable provisions of part 4 of employment opportunity requirements
this chapter; and under Executive Order 11246 (see part 8
(3) The grantee must obtain (before of this chapter). The grantee must con-
initiation of step 3 construction), and sult with the Regional Administrator
must thereafter retain, a fee simple or about equal employment opportunity
such estate or interest in the site of a requirements before issuance of an in-
step 3 project, and rights of access, as vitation for bids where the cost of con-
the Regional Administrator finds suffi- struction work is estimated to be more
cient to assure undisturbed use and than $1 million or where required by
possession for the purpose of construc- the grant agreement.
tion and operation for the estimated
life of the project. If a step 3 project § 35.935–7 Access.
serves more than one municipality, the The grantee must insure that EPA
grantee must insure that the partici- and State representatives will have ac-
pating municipalities have, or will cess to the project work whenever it is
have before the initiation of step 3 con- in preparation or progress. The grantee
struction, such interests or rights in must provide proper facilities for ac-
land as the Regional Administrator cess and inspection. The grantee must
finds sufficient to assure their undis- allow the Regional Administrator, the
turbed utilization of the project site Comptroller General of the United
for the estimated life of the project. States, the State agency, or any au-
(c) With respect to real property ac- thorized representative, to have access
quired with EPA grant assistance, the to any books, documents, plans, re-
grantee must defer acquisition of such ports, papers, and other records of the
460
contractor which are pertinent to the ‘‘construction’’ in § 35.905.) However,

project for the purpose of making the Regional Administrator may defer
audit, examination, excerpts, copies (in writing) the annulment or termi-
and transcriptions. The grantee must nation for not more than 6 additional
insure that a party to a subagreement months if:
will provide access to the project work, (1) The grantee has applied for and
sites, documents, and records. See justified the extension in writing to
§§ 30.605 and 30.805 of this subchapter, the Regional Administrator;
clause 9 of appendix C–1 to this sub- (2) The grantee has given written no-
part, and clause 10 of appendix C–2 to tice of the request for extension to the
this subpart. NPDES permit authority;
(3) The Regional Administrator de-
§ 35.935–8 Supervision. termines that there is good cause for
In the case of any project involving the delay in initiation of project con-
Step 3, the grantee will provide and struction; and
maintain competent and adequate en- (4) The State agency concurs in the
gineering supervision and inspection of extension.
the project to ensure that the con-
struction conforms with the approved § 35.935–10 Copies of contract docu-
ments.
plans and specifications.
In addition to the notification of
§ 35.935–9 Project initiation and com- project changes under § 30.900 of this
pletion. chapter, a grantee must promptly sub-
(a) The grantee agrees to expedi- mit to the Regional Administrator a
tiously initiate and complete the step copy of any prime contract or modi-
1, 2, or 3 project, or cause it to be con- fication of it and of revisions to plans
structed and completed, in accordance and specifications.
with the grant agreement and applica-
tion, including the project progress § 35.935–11 Project changes.
schedule, approved by the Regional Ad- (a) In addition to the notification of
ministrator. Failure of the grantee to project changes required under § 30.900–
promptly initiate and complete step 1, 1 of this chapter, the Regional Admin-
2, or 3 project construction may result istrator’s and (where necessary) the
in annulment or termination of the State agency’s prior written approval
grant. is required for:
(b) No date reflected in the grant (1) Project changes which may—
agreement, or in the project comple- (i) Substantially alter the design and
tion schedule, or extension of any such scope of the project;
date, shall modify any compliance date (ii) Alter the type of treatment to be
established in an NPDES permit. It is provided;
the grantee’s obligation to request any (iii) Substantially alter the location,
required modification of applicable per- size, capacity, or quality of any major
mit terms or other enforceable require- item of equipment; or
ments. (iv) Increase the amount of Federal
(c) The invitation for bids for step 3 funds needed to complete the project.
project work is expected to be issued However, prior EPA approval is not re-
promptly after grant award. Generally quired for changes to correct minor er-
this action should occur within 90 to rors, minor changes, or emergency
120 days after award unless compliance changes; and
with State or local laws requires a (2) Subagreement amendments
longer period of time. The Regional Ad- amounting to more than $100,000 for
ministrator shall annul or terminate which EPA review is required under
the grant if initiation of all significant §§ 35.937–6(b) and 35.938–5 (d) and (g).
elements of step 3 construction has not (b) No approval of a project change
occurred within 12 months of the award under § 30.900 of this chapter shall obli-
for the step 3 project (or approval of gate the United States to any increase
plans and specifications, in the case of in the amount of the grant or grant
a step 2=3 project). (See definition of payments unless a grant increase is
‘‘initiation of construction’’ under also approved under § 35.955. This does
461
§ 35.935–12 40 CFR Ch. I (7–1–00 Edition)
not preclude submission or consider- (2) More than 90 percent of the Fed-
ation of a request for a grant amend- eral share of the total of all inter-
ment under § 30.900–1 of this chapter. dependent step 3 segments unless the
grantee has furnished a satisfactory
§ 35.935–12 Operation and mainte- final operation and maintenance man-
nance. ual.
(a) The grantee must make provision (e) In multiple facility projects where
satisfactory to the Regional Adminis- an element or elements of the treat-
trator for assuring economic and effec- ment works are operable components
tive operation and maintenance of the and have been completely constructed
treatment works in accordance with a and placed in operation by the grantee,
plan of operation approved by the the Regional Administrator shall not
State water pollution control agency make any additional step 3 payment
or, as appropriate, the interstate agen- unless the operation and maintenance
cy. manual (or those portions associated
(b) As a minimum, the plan shall in- with the operating elements of the
clude provision for: treatment works) submitted by the
(1) An operation and maintenance grantee has been approved by the Re-
manual for each facility; gional Administrator.
(2) An emergency operating and re-
§ 35.935–13 Submission and approval
sponse program; of user charge systems.
(3) Properly trained management, op-
eration and maintenance personnel; The grantee shall obtain the approval
of the Regional Administrator of its
(4) Adequate budget for operation and
system of user charges. (See also
maintenance;
§ 35.929 et seq.)
(5) Operational reports;
(a) Step 3 grant assistance awarded
(6) Provisions for laboratory testing under regulations promulgated on Feb-
and monitoring adequate to determine ruary 11, 1974, (1) Except as paragraph
influent and effluent characteristics (a)(2) of this section provides, the
and removal efficiencies as specified in grantee must obtain the Regional Ad-
the terms and conditions of the NPDES ministrator’s approval of its system of
permit; user charges based on actual use which
(7) An operation and maintenance complies with § 35.929–1(a). The Re-
program for the sewer system. gional Administrator shall not pay
(c) Except as provided in paragraphs more than 50 percent of the Federal
(d) and (e) of this section, the Regional share of any step 3 project unless the
Administrator shall not pay— grantee has submitted adequate evi-
(1) More than 50 percent of the Fed- dence of timely development of its sys-
eral share of any step 3 project unless tem of user charges nor shall the Re-
the grantee has furnished a draft of the gional Administrator pay more than 80
operation and maintenance manual for percent of the Federal share unless he
review, or adequate evidence of timely has approved the system.
development of such a draft; or (2) A grantee which desires approval
(2) More than 90 percent of the Fed- of a user charge system based on ad va-
eral share unless the grantee has fur- lorem taxes in accordance with § 35.929–
nished a satisfactory final operation 1(b) shall submit to the Regional Ad-
and maintenance manual. ministrator by July 24, 1978, evidence
(d) In projects where segmenting of of compliance of its system with the
an operable treatment works has oc- criteria in § 35.929–1 (b)(1) through
curred, the Regional Administrator (b)(3). As soon as possible, the Regional
shall not pay— Administrator shall advise the grantee
(1) More than 50 percent of the Fed- if the system complies with § 35.929–1
eral share of the total of all inter- (b)(1). The Regional Administrator’s
dependent step 3 segments unless the determination may be appealed in ac-
grantee has furnished a draft of the op- cordance with subpart J, ‘‘Disputes,’’
eration and maintenance manual for of part 30 of this subchapter.
review, or adequate evidence of timely (i) Grantees whose ad valorem tax sys-
development of such a draft, or tems meet the criteria of § 35.929–1 (b)(1)
462
through (b)(3). Any step 3 payments trator determines that the treatment
held by the Regional Administrator at works have been satisfactorily con-
50 percent or 80 percent for failure to structed in accordance with the grant
comply with the requirement for devel- agreement, the grantee may make a re-
opment of a user charge system shall quest for final payment under
be released. However, the grantee shall § 35.945(e).
obtain approval of its user charge sys-
tem by June 30, 1979 or no further pay- § 35.935–15 Submission and approval
ments will be made until the sytem is of industrial cost recovery system.
approved and the grants may be termi- The grantee shall obtain the approval
nated or annulled. of the Regional Administrator of its
(ii) Grantees whose ad valorem tax sys-
system of industrial cost recovery. (See
tems do not meet the criteria of § 35.929–1
also § 35.928 et seq.)
(b)(1) through (b)(3). Step 3 grants will
continue to be administered in accord- (a) Step 3 grant assistance awarded
ance with paragraph (a)(1) of this sec- under regulations promulgated on Feb-
tion. ruary 11, 1974. (1) The grantee must ob-
(b) Step 3 grant assistance awarded tain the approval of the Regional Ad-
after April 24, 1978, but before July 1, ministrator for the system of indus-
1979. The grantee must obtain approval trial cost recovery (see § 35.928 et seq.).
of its user charge system based on ac- The Regional Administrator shall not
tual use or ad valorem taxes before pay more than 50 percent of the Fed-
July 1, 1979. The Regional Adminis- eral share of any step 3 project unless
trator may not make any payments on the grantee has submitted adequate
these grants, may terminate or annul evidence of timely development of its
these grants, and may not award any system of industrial cost recovery nor
new step 3 grants to the same grantee shall the Regional Administrator pay
after June 30, 1979, if the user charge more than 80 percent of the Federal
system has not been approved. The Re- share unless he has approved the sys-
gional Administrator shall approve the tem.
grantee’s user charge or ad valorem tax (2) Payments of grantees held under
rates and the ordinance required under paragraph (a)(1) of this section shall be
§ 35.929–2(e) and the grantee shall enact released after April 25, 1978. However,
them before the treatment works con- the grantee shall obtain approval of its
structed with the grant are placed in industrial cost recovery system by
operation. June 30, 1979, or no further payments
(c) Step 3 grant assistance awarded will be made until the system is ap-
after June 30, 1979. The Regional Admin-
proved.
istrator may not award step 3 grant as-
(b) Step 3 grant assistance awarded
sistance unless he has approved the
user charge system based on actual use after April 24, 1978, but before July 1,
or ad valorem taxes. The Regional Ad- 1979. The grantee must obtain approval
ministrator shall approve the grantee’s of its industrial cost recovery system
user charge or ad valorem tax rates under these regulations, except for the
and the ordinance required under ordinance and rates, before July 1, 1979.
§ 35.929–2(e) and the grantee shall enact The Regional Administrator shall not
them before the treatment works con- make any payments on these grants
structed with the grant are placed in and shall not award any new step 3
operation. grants to the same grantee after June
30, 1979, if the industrial cost recovery
§ 35.935–14 Final inspection. system, except for the ordinance and
The grantee shall notify the Regional rates, has not been approved. The
Administrator through the State agen- grantee shall enact the ordinance re-
cy of the completion of step 3 project quired under § 35.928–1(h) and submit
construction. The Regional Adminis- the ordinance and industrial cost re-
trator shall cause final inspection to be covery system rates to the Regional
made within 60 days of the receipt of Administrator who must approve the
the notice. When final inspection is ordinance before the treatment works
completed and the Regional Adminis- are placed in operation.
463
§ 35.935–16 40 CFR Ch. I (7–1–00 Edition)
(c) Step 3 grant assistance awarded required to train and upgrade waste
after June 30, 1979. The grantee must ob- treatment personnel under §§ 35.930–1(b)
tain the Regional Administrator’s ap- and 35.920–3(e), the grantee must oper-
proval of the industrial cost recovery ate the treatment works as a training
system under these regulations, except facility for a period of at least 10 years
for the ordinance and rates, before after construction is completed.
grant award. The grantee shall enact
the ordinance required under § 35.928– § 35.935–18 Value engineering.
1(h) and submit the ordinance and in-
A grantee must comply with the ap-
dustrial cost recovery system rates to
plicable value engineering require-
the Regional Administrator who must
approve the ordinance before the treatments of § 35.926.
ment works are placed in operation.
§ 35.935–19 Municipal pretreatment
§ 35.935–16 Sewer use ordinance and program.
evaluation/rehabilitation program. The grantee must obtain approval by
(a) The grantee must obtain the ap- the Regional Administrator of the mu-
proval of the Regional Administrator nicipal pretreatment program in ac-
of its sewer use ordinance under cordance with part 403 of this chapter.
§ 35.927–4. Prior to granting such approval, the
(b) Except as provided in paragraphs Regional Administrator shall not pay
(c) and (d) of this section, the Regional more than 90 percent of the Federal
Administrator shall not pay more than share of any step 3 project or cost of
80 percent of the Federal share of any step 3 work under a step 2=3 project
step 3 project unless he has approved awarded after October 1, 1978, except
the grantee’s sewer use ordinance, and that for any such grant assistance
the grantee is complying with the awarded before December 31, 1980, the
sewer system evaluation and rehabili- Regional Administrator may continue
tation schedule incorporated in the
grant payments if he determines that
grant agreement under § 35.927–5.
significant progress has been made
(c) In projects where segmenting of
an operable treatment works has oc- (and is likely to continue) toward the
curred, the Regional Administrator development of an approvable
shall not pay more than 80 percent of pretreatment program and that with-
the Federal share of the total of all holding of grant payments would not
interdependent step 3 segments unless be in the best interest of protecting the
he has approved the grantee’s sewer environment.
use ordinance and the grantee is com-
plying with the sewer system evalua- § 35.935–20 Innovative processes and
tion and rehabilitation schedule incor- techniques.
porated in the grant agreement under If the grantee receives 85-percent
§ 35.927–5. grant assistance for innovative proc-
(d) In mulitple facility projects esses and techniques, the following
where an element or elements of the conditions apply during the 5-year pe-
treatment works are operable compo- riod following completion of construc-
nents and have been completely con- tion:
structed and placed in operation by the (a) The grantee shall permit EPA
grantee, the Regional Administrator personnel and EPA designated contrac-
shall not make any additional step 3 tors to visit and inspect the treatment
payment unless he has approved the
works at any reasonable time in order
grantee’s sewer use ordinance and the
to review the operation of the innova-
grantee is complying with the sewer
tive processes or techniques.
system evaluation and rehabilitation
schedule incorporated in the grant (b) If the Regional Administrator re-
agreement under § 35.927–5. quests, the grantee will provide EPA
with a brief written report on the con-
§ 35.935–17 Training facility. struction, operation, and costs of oper-
If assistance has been provided for ation of the innovative processes or
the construction of a treatment works techniques.
464
§ 35.936 Procurement. subpart. In addition, where appropriate

(a) Sections 35.936 through 35.939 set in §§ 35.936 through 35.939, grantee may
forth policies and minimum standards also refer to an applicant for a grant.
for procurement of architectural or en- § 35.936–2 Grantee procurement sys-
gineering services as defined in § 35.937 tems; State or local law.
and construction contracts as de-
(a) Grantee procurement systems.
scribed in § 35.938 by grantees under all
Grantees may use their own procure-
steps of grants for construction of
ment systems and procedures which
treatment works. Acquisition of real
meet applicable requirements of State,
property shall be conducted in accord-
territorial, or local laws and ordi-
ance with part 4, subpart F of this
nances to the extent that these sys-
chapter. Other procurements of goods
tems and procedures do not conflict
and services shall be conducted in ac-
with the minimum requirements of
cordance with the provisions of part 33
of this subchapter. this subchapter.
(b) This subpart does not apply to (b) State or local law. The Regional
work beyond the scope of the project Administrator will generally rely on a
for which grant assistance is awarded grantee’s determination regarding the
(i.e., ineligible work). application of State or local law to
issues which are primarily determined
§ 35.936–1 Definitions. by such law. The Regional Adminis-
trator may request the grantee to fur-
As used in §§ 35.936 through 35.939, the
nish a written legal opinion adequately
following words and terms shall have
addressing any such legal issues. The
the meaning set forth below. All terms
not defined herein shall have the mean- Regional Administrator will accept the
ing given to them in § 30.135 of this subgrantee’s determination unless he finds
chapter, and in § 35.905. that it does not have a rational basis.
(a) Grant agreement. The written (c) Preference. State or local laws, or-
agreement and amendments thereto be- dinances, regulations or procedures
tween EPA and a grantee in which the which effectively give local or in-State
terms and conditions governing the bidders or proposers preference over
grant are stated and agreed to by both other bidders or proposers shall not be
parties under § 30.345 of this sub- employed in evaluating bids or pro-
chapter. posals for subagreements under a
(b) Subagreement. A written agree- grant.
ment between an EPA grantee and an- § 35.936–3 Competition.
other party (other than another public
agency) and any tier of agreement EPA’s policy is to encourage free and
thereunder for the furnishing of serv- open competition appropriate to the
ices, supplies, or equipment necessary type of project work to be performed.
to complete the project for which a
grant was awarded, including contracts § 35.936–4 Profits.
and subcontracts for personal and pro- Only fair and reasonable profits may
fessional services, agreements with be earned by contractors in subagree-
consultants and purchase orders, but ments under EPA grants. See § 35.937–7
excluding employment agreements sub- for discussion of profits under nego-
ject to State or local personnel sys- tiated subagreements for architectural
tems. (See §§ 35.937–12 and 35.938–9 re- or engineering services, and § 35.938–5(f)
garding subcontracts of any tier under for discussion of profits under nego-
prime contracts for architectural or tiated change orders to construction
engineering services or construction contracts. Profit included in a formally
awarded by the grantee—generally ap- advertised, competitively bid, fixed
plicable only to subcontracts in excess price construction contract awarded
of $10,000.) under § 35.938 is presumed reasonable.
(c) Contractor. A party to whom a
subagreement is awarded. § 35.936–5 Grantee responsibility.
(d) Grantee. Any municipality which (a) The grantee is responsible for the
has been awarded a grant for construc- administration and successful accom-
tion of a treatment works under this plishment of the project for which EPA
465
§ 35.936–6 40 CFR Ch. I (7–1–00 Edition)
grant assistance is awarded. The grant- 4(c)(5), and appendices C–1 and C–2 to
ee is responsible for the settlement and this subpart for the required solicita-
satisfaction of all contractual and ad- tion statement and contract provi-
ministrative issues arising out of sub- sions.) However, in accordance with
agreements entered into under the § 35.970 the Regional Administrator, if a
grant (except as § 35.936–6 provides) in grantee requests, may provide tech-
accordance with sound business judg- nical and legal assistance in the ad-
ment and good administrative practice. ministration and enforcement of any
This includes issuance of invitations contract related to treatment works
for bids or requests for proposals, selec- for which an EPA grant was made.
tion of contractors, award of contracts,
protests of award, claims, disputes, and § 35.936–9 Disputes.
other related procurement matters. Only an EPA grantee may initiate
(b) With the prior written approval of and prosecute an appeal to the Admin-
the Regional Administrator, the grant- istrator under the disputes provision of
ee may retain an individual or firm to a grant with respect to its subagree-
perform these functions. Such an agent ments (see subpart J of part 30 of this
acts for the grantee and is subject to subchapter). Neither a contractor nor a
the provisions of this subpart which subcontractor may prosecute an appeal
apply to the grantee. under the disputes provisions of a
(c) In accordance with § 35.970, a grant in its own name or interest.
grantee may request technical and
legal assistance from the Regional Ad- § 35.936–10 Federal procurement regu-
ministrator for the administration and lations.
enforcement of any contract related to Regulations applicable to direct Fed-
treatment works that are assisted by eral procurement shall not be applica-
an EPA grant. The Regional Adminis- ble to subagreements under grants ex-
trator’s assistance does not release the cept as stated in this subchapter.
grantee from those responsibilities
identified in paragraph (a) of this sec- § 35.936–11 General requirements for
tion. subagreements.
Subagreements must:
§ 35.936–6 EPA responsibility. (a) Be necessary for and directly re-
Generally, EPA will only review lated to the accomplishment of the
grantee compliance with Federal re- project work;
quirements applicable to a grantee’s (b) Be in the form of a bilaterally ex-
procurement. However, where specifi- ecuted written agreement (except for
cally provided in this chapter (e.g., small purchases of $10,000 or less);
§§ 8.8(j) and 35.939), EPA is responsible (c) Be for monetary or in-kind con-
for determining compliance with Fed- sideration; and
eral requirements. (d) Not be in the nature of a grant or
gift.
§ 35.936–7 Small and minority busi-
ness. § 35.936–12 Documentation.
Grantees shall make positive efforts (a) Procurement records and files for
to use small business and minority- purchases in excess of $10,000 shall in-
owned business sources of supplies and clude the following:
services. Such efforts should allow (1) Basis for contractor selection;
these sources the maximum feasible (2) Justification for lack of competi-
opportunity to compete for subagree- tion if competition appropriate to the
ments to be performed using Federal type of project work to be performed is
grant funds. required but is not obtained; and
(3) Basis for award cost or price.
§ 35.936–8 Privity of contract. (b) The grantee or contractors of the
Neither EPA nor the United States grantee must retain procurement docu-
shall be a party to any subagreement mentation required by § 30.805 of this
(including contracts or subcontracts), subchapter and by this subpart, includ-
nor to any solicitation or request for ing a copy of each subagreement, for
proposals. (See §§ 35.937–9(a), 35.938– the period of time specified in § 30.805.
466
The documentation is subject to all the ment must be negotiated under § 33.500
requirements of § 30.805. A copy of each et seq., including full cost review.
subagreement must be furnished to the (c) Experience clause restriction. The
project officer upon request. general use of experience clauses re-
quiring equipment manufacturers to
§ 35.936–13 Specifications. have a record of satisfactory operation
(a) Nonrestrictive specifications. (1) No for a specified period of time or of
specification for bids or statement of bonds or deposits to guarantee replace-
work in connection with such works ment in the event of failure is re-
shall be written in such a manner as to stricted to special cases where the
contain proprietary, exclusionary, or grantee’s engineer adequately justifies
discriminatory requirements other any such requirement in writing.
than those based upon performance, Where such justification has been
unless such requirements are necessary made, submission of a bond or deposit
to test or demonstrate a specific thing shall be permitted instead of a speci-
or to provide for necessary inter- fied experience period. The period of
changeability of parts and equipment, time for which the bond or deposit is
or at least two brand names or trade required should not exceed the experi-
names of comparable quality or utility ence period specified. No experience re-
are listed and are followed by the striction will be permitted which un-
words ‘‘or equal.’’ If brand or trade necessarily reduces competition or in-
names are specified, the grantee must novation.
be prepared to identify to the Regional (d) Buy American—(1) Definitions. As
Administrator or in any protest action used in this subpart, the following defi-
the salient requirements (relating to nitions apply:
the minimum needs of the project) (i) Construction material means any
which must be met by any offeror. The article, material, or supply brought to
single base bid method of solicitation the construction site for incorporation
for equipment and parts for determina- in the building or work.
tion of a low, responsive bidder may (ii) Component means any article, ma-
not be utilized. With regard to mate- terial, or supply directly incorporated
rials, if a single material is specified, in construction material.
the grantee must be prepared to sub- (iii) Domestic construction material
stantiate the basis for the selection of means an unmanufactured construc-
the material. tion material which has been mined or
(2) Project specifications shall, to the produced in the United States, or a
extent practicable, provide for max- manufactured construction material
imum use of structures, machines, which has been manufactured in the
products, materials, construction United States if the cost of its compo-
methods, and equipment which are nents which are mined, produced, or
readily available through competitive manufactured in the United States ex-
procurement, or through standard or ceeds 50 percent of the cost of all its
proven production techniques, meth- components.
ods, and processes, except to the extent (iv) Nondomestic construction material
that innovative technologies may be means a construction material other
used under § 35.908 of this subpart. than a domestic construction material.
(b) Sole source restriction. A specifica- (2) Domestic preference. Domestic con-
tion shall not require the use of struc- struction material may be used in pref-
tures, materials, equipment, or proc- erence to nondomestic materials if it is
esses which are known to be available priced no more than 6 percent higher
only from a sole source, unless the Re- than the bid or offered price of the non-
gional Administrator determines that domestic materials including all costs
the grantee’s engineer has adequately of delivery to the construction site,
justified in writing that the proposed any applicable duty, whether or not as-
use meets the particular project’s min- sessed. Computations will normally be
imum needs or the Regional Adminis- based on costs on the date of opening of
trator determines that use of a single bids or proposals.
source is necessary to promote innova- (3) Waiver. The Regional Adminis-
tion (see § 35.908). Sole source procure- trator may waive the Buy American
467
§ 35.936–14 40 CFR Ch. I (7–1–00 Edition)
provision based upon those factors that work in excess of $25,000 performed dur-
he considers relevant, including: ing step 1 (see § 35.927–3(a)); or (3) any
(i) Such use is not in the public inter- step 3 work in excess of $25,000; unless
est; the grant agreement stipulates the
(ii) The cost is unreasonable; force account method.
(iii) The Agency’s available resources (b) The project officer’s approval
are not sufficient to implement the shall be based on the grantee’s dem-
provision, subject to the Deputy Ad- onstration that he possesses the nec-
ministrator’s concurrence; essary competence required to accom-
(iv) The articles, materials, or sup- plish such work and that (1) the work
plies of the class or kind to be used or can be accomplished more economi-
the articles, materials, or supplies cally by the use of the force account
from which they are manufactured are method, or (2) emergency circum-
not mined, produced, or manufactured stances dictate its use.
in the United States in sufficient and
(c) Use of the force account method
reasonably available commercial quan-
for step 3 construction shall generally
tities or satisfactory quality for the
be limited to minor portions of a proj-
particular project; or
ect.
(v) Application of this provision is
contrary to multilateral government § 35.936–15 Limitations on subagree-
procurement agreements, subject to ment award.
the Deputy Administrator’s concur-
rence. No subagreement shall be awarded:
(4) Contract provision. Notwith- (a) To any person or organization
standing any other provision of this which does not meet the responsibility
subpart, bidding documents and con- standards in § 30.340–2 (a) through (d)
struction contracts for any step 3 and (g) of this subchapter;
project for which the Regional Admin- (b) If any portion of the contract
istrator receives an application after work not exempted by § 30.420–3(b) of
February 1, 1978, shall contain the this subchapter will be performed at a
‘‘Buy American’’ provision which re- facility listed by the Director, EPA Of-
quires use of domestic construction fice of Federal Activities, in violation
materials in preference to nondomestic of the antipollution requirements of
construction materials. the Clean Air Act and the Clean Water
(5) Substitution. If a nondomestic con- Act, as set forth in § 30.420–3 of this sub-
struction material or component is chapter and 40 CFR part 15 (Adminis-
proposed for use, a bidder or contractor tration of the Clean Air Act and the
may substitute an approved domestic Federal Water Pollution Control Act
material or component (at no change with respect to Federal contracts,
in price), if necessary to comply with grants, or loans); or
this subsection. (c) To any person or organization
(6) Procedures. The Regional Adminis- which is ineligible under the conflict of
trator may use the appropriate proce- interest requirements of § 30.420–4 of
dures of § 35.939 in making the deter- this subchapter.
minations with respect to this sub-
section. He shall generally observe the § 35.936–16 Code or standards of con-
Buy American procedures, regulations, duct.
precedents, and requirements of other (a) The grantee must maintain a code
Federal departments and agencies. or standards of conduct which shall
[43 FR 44049, Sept. 27, 1978, as amended at 44 govern the performance of its officers,
FR 37596, June 27, 1979; 44 FR 39340, July 5, employees, or agents in the conduct of
1979] project work, including procurement
and expenditure of project funds. The
§ 35.936–14 Force account work. grantee’s officers, employees, or agents
(a) A grantee must secure the project shall neither solicit nor accept gratu-
officer’s prior written approval for use ities, favors, or anything of monetary
of the force account method for (1) any value from contractors or potential
step 1 or step 2 work in excess of contractors. The grantee must avoid
$10,000; (2) any sewer rehabilitation personal or organizational conflicts of
468
interest or noncompetitive procure- type of project work to be performed.

ment practices which restrict or elimi- The grantee is authorized to negotiate
nate competition or otherwise restrain subagreements in accordance with the
trade. applicable procedures of this sub-
(b) To the extent permissible by chapter (see §§ 35.937 et seq. and 35.500 et
State or local law or formal institu- seq.) if any of the following conditions
tional requirements and procedures, exist:
the standards shall provide for pen- (1) Public exigency will not permit
alties, sanctions, or other adequate dis- the delay incident to formally adver-
ciplinary actions to be instituted for tised procurement (e.g., an emergency
project-related violations of law or of procurement).
the code or standards of conduct by ei- (2) The aggregate amount involved
ther the grantee officers, employees, or does not exceed $10,000 (see § 35.936–19
agents, or by contractors or their for small purchases).
agents. (3) The material or service to be pro-
(c) The grantee must inform the cured is available from only one person
project officer in writing of each seri- or entity. If the procurement is ex-
ous allegation of a project-related vio- pected to aggregate more than $10,000,
lation and of each known or proven the grantee must document its file
project-related violation of law or code with a justification of the need for non-
or standards of conduct, by its officers, competitive procurement, and provide
employees, contractors, or by their such documentation to the project offi-
agents. The grantee must also inform cer on request.
the project officer of the prosecutive or (4) The procurement is for personal
disciplinary action the grantee takes, or professional services (including ar-
and must cooperate with Federal offi- chitectural or engineering services) or
cials in any Federal prosecutive or dis- for any service that a university or
ciplinary action. Under § 30.245 of this other educational institution may
subchapter, the project officer must render.
notify the Director, EPA Security and (5) No responsive, responsible bids at
Inspection Division, of all notifications acceptable price levels have been re-
from the grantee. ceived after formal advertising, and,
(d) EPA shall cooperate with the with respect to procurement under
grantee in its disciplinary or prose- § 35.938–4, the Regional Administrator’s
cutive actions taken for any apparent prior written approval has been ob-
project-related violations of law or of tained.
the grantee’s code or standards of con-
(6) The procurement is for materials
duct.
or services where the prices are estab-
§ 35.936–17 Fraud and other unlawful lished by law.
or corrupt practices. (7) The procurement is for technical
All procurements under grants are items or equipment requiring standard-
covered by the provisions of § 30.245 of ization and interchangeability of parts
this subchapter relating to fraud and with existing equipment.
other unlawful or corrupt practices. (8) The procurement is for experi-
mental, developmental or research
§ 35.936–18 Negotiation of subagree- services.
ments.
(a) Formal advertising, with ade- § 35.936–19 Small purchases.
quate purchase descriptions, sealed (a) A small purchase is the procure-
bids, and public openings shall be the ment of materials, supplies, and serv-
required method of procurement unless ices when the aggregate amount in-
negotiation under paragraph (b) of this volved in any one transaction does not
section is necessary to accomplish exceed $10,000. The small purchase lim-
sound procurement. itation of $10,000 applies to the aggre-
(b) All negotiated procurement shall gate total of an order, including all es-
be conducted in a manner to provide to timated handling and freight charges,
the maximum practicable extent open overhead, and profit to be paid under
and free competition appropriate to the the order. In arriving at the aggregate
469
§ 35.936–20 40 CFR Ch. I (7–1–00 Edition)
amount involved in any one trans- § 35.936–21 Delegation to State agen-

action, all items which should properly cies; certification of procurement
be grouped together must be included. systems.
Reasonable competition shall be ob- (a) Under § 35.912 and subpart F of
tained. this part, the Regional Administrator
(b) Subagreements for small pur- may delegate authority to a State
chases need not be in the form of a bi- agency to review and certify the tech-
laterally executed written agreement. nical and administrative adequacy of
Where appropriate, unilateral purchase procurement documentation required
orders, sales slips, memoranda of oral under these sections.
price quotations, and the like may be (b) If a State agency believes that
used to minimize paperwork. Retention State laws which govern municipal
in the purchase files of these docu- procurement include the same require-
ments and of written quotations re- ments or operate to provide the same
ceived, or references to catalogs or protections as do §§ 35.936, 35.937 and
printed price lists used, will suffice as 35.938, the State may request the Ad-
the record supporting the price paid. ministrator to approve the State sys-
tem instead of the procedures of these
§ 35.936–20 Allowable costs. sections. EPA shall review the State
system to determine its adequacy.
(a) Incurring costs under sub- (c) If a State agency determines that
agreements which are not awarded or an applicant’s procurement ordinances
administered in compliance with this or applicable statutes include the same
part or part 33 of this subchapter, as requirements or operate to provide the
appropriate, shall be cause for disal- same protections as do §§ 35.936, 35.937
lowance of those costs. and 35.938, the State may certify (ac-
(b) Appropriate cost principles which companied by appropriate documenta-
apply to subagreements under EPA tion) the adequacy of the municipal-
grants are identified in § 30.710 of this ity’s ordinances and statutes and re-
subchapter. Under that section, the quest the Administrator to approve the
contractor’s actual costs, direct and in- municipality’s system instead of the
direct, eligible for Federal participa- procedures of these sections. EPA shall
tion in a cost reimbursement contract conduct or may request the State to
shall be those allowable under the ap- conduct a review of the municipality’s
plicable provisions of 41 CFR 1–15.2 system to determine its adequacy.
(Principles and Procedures for Use in
§ 35.936–22 Bonding and insurance.
Cost-Reimbursement Type Supply and
Research Contracts With Commercial (a) On contracts for the building and
Organizations) and 41 CFR 1–15.4 (Con- erection of treatment works or con-
struction and Architect-Engineer Con- tracts for sewer system rehabilitation
tracts). exceeding $100,000, each bidder must
(c) Reasonable costs of compliance furnish a bid guarantee equivalent to 5
percent of the bid price. In addition,
with the procurement and project man-
the contractor awarded a construction
agement requirements of these regula-
contract for the building and erection
tions are allowable costs of administra- of treatment works or sewer system re-
tion under the grant. Costs of an- habilitation must furnish performance
nouncement, selection, negotiation, and payment bonds, each of which shall
and cost review and analysis in connec- be in an amount not less than 100 per-
tion with procurement of architectural cent of the contract price. Construc-
or engineering services are allowable, tion contracts less than $100,000 shall
even when conducted before award of be subject to State and local require-
the grant. Legal and engineering costs ments for bid guarantees, performance
which a grantee is required to incur in bonds, and payment bonds. For con-
a protest action under § 35.939 are al- tracts or subcontracts in excess of
lowable. $100,000 the Regional Administrator
470
may authorize the grantee to use its strued as requiring competitive bids or
own bonding policies and requirements price competition in the procurement
if he determines, in writing, that the of architectural or engineering serv-
Government’s interest is adequately ices.
protected. (c) Definitions. As used in §§ 35.937
(b) Contractors should obtain such through 35.937–11 the following words
construction insurance (e.g., fire and and terms mean:
extended coverage, workmen’s com- (1) Architectural or engineering serv-
pensation, public liability and property ices. Those professional services associ-
damage, and ‘‘all risk’’ builder’s risk or ated with research, development, de-
installation floater coverage) as is re- sign and construction, alteration, or
quired by State or local law or the repair of real property, as well as inci-
grantee or as is customary and appro- dental services that members of these
priate. Under the Flood Disaster Pro- professions and those in their employ
tection Act of 1973, a contractor must may logically or justifiably perform,
purchase flood insurance to cover his including studies, investigations, sur-
risk of loss if the grantee has not pur- veys, evaluations, consultations, plan-
chased the insurance (see § 30.405–10 of ning, programing, conceptual designs,
this subchapter). plans and specifications, cost esti-
mates, inspections, shop drawing re-
§ 35.937 Subagreements for architec- views, sample recommendations, prepa-
tural or engineering services. ration of operation and maintenance
(a) Applicability. Except as § 35.937–2 manuals, and other related services.
otherwise provides, the provisions of (2) Engineer. A professional firm or
§§ 35.937 through 35.937–11 apply to all individual engaged to provide services
subagreements of grantees for archi- as defined in paragraph (c)(1) of this
tectural or engineering services where section by subagreement under a grant.
the aggregate amount of services in-
volved is expected to exceed $10,000. § 35.937–1 Type of contract (subagree-
The provisions of §§ 35.937–2, 35.937–3, ment).
and 35.937–4 are not required, but may (a) General. Cost-plus-percentage-of-
be followed, where the population of cost and percentage-of-construction-
the grantee municipality is 25,000 or cost contracts are prohibited. Cost re-
less according to the most recent U.S. imbursement, fixed price, or per diem
census. When $10,000 or less of services contracts or combinations of these
(e.g., for consultant or consultant sub- may be negotiated for architectural or
contract services) is required, the engineering services. A fixed price con-
small purchase provisions of § 35.936–19 tract is generally used only when the
apply. scope and extent of work to be per-
(b) Policy. Step 1, step 2, or adminis- formed is clearly defined. In most
tration or management of step 3 other cases, a cost reimbursement type
project work may be performed by ne- of contract is more appropriate. A per
gotiated procurement of architectural diem contract may be used if no other
or engineering services. The Federal type of contract is appropriate. An in-
Government’s policy is to encourage centive fee may be used if the grantee
public announcement of the require- submits an adequate independent cost
ments for personal and professional estimate and price comparison under
services, including engineering serv- § 35.937–6.
ices. Subagreements for engineering (b) Cost reimbursement contracts. Each
services shall be negotiated with can- cost reimbursement contract must
didates selected on the basis of dem- clearly establish a cost ceiling which
onstrated competence and qualifica- the engineer may not exceed without
tions for the type of professional serv- formally amending the contract and a
ices required and at fair and reasonable fixed dollar profit which may not be in-
prices. All negotiated procurement creased except in case of a contract
shall be conducted in a manner that amendment to increase the scope of
provides to the maximum practicable work.
extent, open and free competition. (c) Fixed price contracts. An accept-
Nothing in this subpart shall be con- able fixed price contract is one which
471
§ 35.937–2 40 CFR Ch. I (7–1–00 Edition)
establishes a guaranteed maximum with an anticipated price in excess of

price which may not be increased un- $25,000 except as paragraph (b) of this
less a contract amendment increases section provides. In providing public
the scope of work. notice under paragraphs (a)(1) and (2)
(d) Compensation procedures. If, under of this section, grantees must comply
either a cost reimbursement or fixed with the policies in §§ 35.936–2(c), 35.936–
price contract, the grantee desires to 3, and 35.936–7.
use a multiplier type of compensation, (1) Public announcement. A notice of
all of the following must apply: request for qualifications should be
(1) The multiplier and the portions of published in professional journals,
the multiplier allocable to overhead newspapers, or publications of general
and allocable to profit have been spe- circulation over a reasonable area and,
cifically negotiated; in addition, if desired, through posted
(2) The portion of the multiplier allo- public notices or written notification
cable to overhead includes only allow- directed to interested person, firms, or
able items of cost under the cost prin- professional organizations inviting the
ciples of 41 CFR 1–15.2 and 1–15.4; submission of statements of qualifica-
(3) The portions of the multiplier al- tions. The announcement must clearly
locable to profit and allocable to over- state the deadline and place for sub-
head have been separately identified in mission of qualification statements.
the contract; and (2) Prequalified list. As an alternative
(4) The fixed price contract includes to publishing public notice as in para-
a guaranteed maximum price for com- graph (b) of this section, the grantee
pletion of the specifically defined scope may secure or maintain a list of quali-
of work; the cost reimbursement con- fied candidates. The list must:
tract includes a fixed dollar profit (i) Be developed with public notice
which may not be increased except in procedures as in paragraph (a)(1) of this
case of a contract amendment which section;
increases the scope of work. (ii) Provide for continuous updating;
(e) Per diem contracts. A per diem
and
agreement expected to exceed $10,000
(iii) Be maintained by the grantee or
may be utilized only after a determina-
secured from the State or from a near-
tion that a fixed price or cost reim-
by political subdivision.
bursement type contract is not appro-
priate. Per diem agreements should be (b) Exceptions. The public notice re-
used only to a limited extent, e.g., quirement of this section and the re-
where the first task under a step 1 lated requirements of §§ 35.937–3 and
grant involves establishing the scope 35.937–4 are not applicable, but may be
and cost of succeeding step 1 tasks, or followed, in the cases described in
for incidental services such as expert paragraphs (b) (1) through (3) of this
testimony or intermittent professional section. All other appropriate provi-
or testing services. (Resident engineer sions of this section, including cost re-
and resident inspection services should view and negotiation of price, apply.
generally be compensated under para- (1) Where the population of the
graph (b) or (c) of this section.) Cost grantee municipality is 25,000 or less
and profit included in the per diem rate according to the latest U.S. census.
must be specifically negotiated and (2) For step 2 or step 3 of a grant, if:
displayed separately in the engineer’s (i) The grantee is satisfied with the
proposal. The contract must clearly es- qualifications and performance of an
tablish a price ceiling which may not engineer who performed all or any part
be exceeded without formally amend- of the step 1 or step 2 work;
ing the contract. (ii) The engineer has the capacity to
perform the subsequent steps; and
§ 35.937–2 Public notice. (iii) The grantee desires the same en-
(a) Requirement. Adequate public no- gineer to provide architectural or engi-
tice as paragraph (a)(1) or (2) of this neering services for the subsequent
section provide, must be given of the steps.
requirement for architectural or engi- (3) For subsequent segments of design
neering services for all subagreements work under one grant if:
472
(i) A single treatment works is seg- than three candidates who either re-
mented into two or more step 3 sponded to the announcement or who
projects; were selected from the prequalified
(ii) The step 2 work is accordingly list. If, after good faith effort to solicit
segmented so that the initial contract qualifications in accordance with
for preparation of construction draw- § 35.937–2, fewer than three qualified
ings and specifications does not cover candidates respond, all qualified can-
the entire treatment works to be built didates must be provided requests for
under one grant; and proposals.
(iii) The grantee desires to use the (b) Requests for professional services
same engineering firm that was se- proposals must be in writing and must
lected for the initial segment of step 2 contain the information necessary to
work for subsequent segments. enable a prospective offeror to prepare
a proposal properly. The request for
§ 35.937–3 Evaluation of qualifications. proposals must include the solicitation
(a) The grantee shall review the statement in § 35.937–9(a) and must in-
qualifications of firms which responded form offerors of the evaluation cri-
to the announcement or were on the teria, including all those in paragraph
prequalified list and shall uniformly (c) of this section, and of the relative
evaluate the firms. importance attached to each criterion
(b) Qualifications shall be evaluated (a numerical weighted formula need
through an objective process (e.g., the not be utilized).
appointment of a board or committee (c) All proposals submitted in re-
which, to the extent practicable, sponse to the request for professional
should include persons with technical services proposals must be uniformly
skills). evaluated. Evaluation criteria shall in-
(c) Criteria which should be consid- clude, as a minimum, all criteria stat-
ered in the evaluation of candidates for ed in § 35.937–3(c) of this subpart. The
submission of proposals should include: grantee shall also evaluate the can-
(1) Specialized experience and tech- didate’s proposed method to accom-
nical competence of the candidate or plish the work required, including,
firm and its personnel (including a where appropriate, demonstrated capa-
joint venture, association or profes- bility to explore and develop innova-
sional subcontract), considering the tive or advanced techniques and de-
type of services required and the com- signs. The grantee’s evaluation shall
plexity of the project; comply with § 35.936–7.
(2) Past record of performance on (d) Proposals shall be evaluated
contracts with the grantee, other gov- through an objective process (e.g., the
ernment agencies or public bodies, and appointment of a board or committee
with private industry, including such which, to the extent practicable,
factors as control of costs, quality of should include persons with technical
work, and ability to meet schedules; skills. Oral (including telephone) or
(3) The candidate’s capacity to per- written interviews should be conducted
form the work (including any special- with top rated proposers, and informa-
ized services) within the time limitation derived therefrom shall be treated
tions, considering the firm’s current on a confidential basis, except as re-
and planned workload; quired to be disclosed under State or
(4) The candidate’s familiarity with local law or to EPA under § 35.937–6.
types of problems applicable to the (e) At no point during the procure-
project; and ment process shall information be con-
(5) Avoidance of personal and organi- veyed to any candidate which would
zational conflicts of interest prohibited provide an unfair competitive advan-
under State and local law and § 35.936– tage.
16.
§ 35.937–5 Negotiation.
§ 35.937–4 Solicitation and evaluation (a) Grantees are responsible for nego-
of proposals. tiation of their contracts for architec-
(a) Requests for professional services tural or engineering services. Contract
proposals must be sent to no fewer procurement including negotiation
473
§ 35.937–6 40 CFR Ch. I (7–1–00 Edition)
may be performed by the grantee di- contract price in excess of $100,000, or

rectly or by another non-Federal gov- where the amendment itself is in ex-
ernmental body, person or firm recess of $100,000, the provisions of this
tained for the purpose. Contract nego- paragraph (b) shall apply.
tiations may include the services of (1) The candidate(s) selected for ne-
technical, legal, audit, or other special- gotiation shall submit to the grantee
ists to the extent appropriate. for review sufficient cost and pricing
(b) Negotiations may be conducted in data as described in paragraph (c) of
accordance with State or local require- this section to enable the grantee to
ments, as long as they meet the min- ascertain the necessity and reasonable-
imum requirements as set forth in this ness of costs and amounts proposed,
section. In the absence of State or local and the allowability and eligibility of
statutory or code requirements, nego- costs proposed.
tiations may be conducted by the (2) The grantee shall submit to the
grantee under procedures it adopts EPA Project Officer for review (i) docu-
based upon Public Law 92–582, 40 U.S.C. mentation of the public notice of need
541–544 (commonly known as the for architectural or engineering serv-
‘‘Brooks Bill’’) or upon the negotiation ices, and selection procedures used, in
procedures of 40 CFR 33.510–2. those cases where §§ 35.937–2, 35.937–3
(c) The object of negotiations with and 35.937–4 are applicable; (ii) the cost
any candidate shall be to reach agree- and pricing data the selected engineer
ment on the provisions of the proposed submitted; (iii) a certification of re-
contract. The grantee and the can- view and acceptance of the selected en-
didate shall discuss, as a minimum: gineer’s cost or price; and (iv) a copy of
(1) The scope and extent of work and the proposed subagreement. The EPA
other essential requirements; Project Officer will review the com-
(2) Identification of the personnel and plete subagreement action and approve
facilities necessary to accomplish the the grantee’s compliance with appro-
work within the required time, includ- priate procedures before the grantee
ing where needed, employment of addi- awards the subagreement. The grantee
tional personnel, subcontracting, joint shall be notified upon completion of re-
ventures, etc.; view.
(3) Provision of the required tech- (c) Cost review. (1) The grantee shall
nical services in accordance with regu- review proposed subagreement costs.
lations and criteria established for the (2) As a minimum, proposed sub-
project; and agreement costs shall be presented on
(4) A fair and reasonable price for the EPA form 5700–41 on which the selected
required work, to be determined in ac- engineer shall certify that the proposed
cordance with the cost and profit con- costs reflect complete, current, and ac-
siderations set forth in §§ 35.937–6 and curate cost and pricing data applicable
35.937–7, and payment provisions. to the date of anticipated sub-
agreement award.
§ 35.937–6 Cost and price consider- (3) In addition to the specific ele-
ations. ments of cost, the estimated amount of
(a) General. EPA policy is that the profit shall be set forth separately in
cost or price of all subagreements and the cost summary for fixed price con-
amendments to them must be consid- tracts and a maximum total dollar
ered. For each subagreement in excess amount of profit shall be set forth sep-
of $10,000 but not greater than $100,000, arately in the cost summary for cost
grantees shall use the procedures de- reimbursement contracts.
scribed in paragraph (c) of this section, (4) The grantee may require more de-
or an equivalent process. tailed cost data than the form requires
(b) Subagreements over $100,000. For in order to substantiate the reason-
each subagreement expected to exceed ableness of proposed subagreement
$100,000, or for two subagreements costs. EPA normally requires more de-
which aggregate more than $100,000 tailed documentation only when the se-
awarded to an engineer for work on one lected engineer is unable to certify
step, or where renegotiation or amend- that the cost and pricing data used are
ment of a subagreement will result in a complete, current, and accurate. EPA
474
may, on a selected basis, perform a pre- agreements under EPA grants, profit is
award cost analysis on any sub- defined as the net proceeds obtained by
agreement. Normally, a provisional deducting all allowable costs (direct
overhead rate will be agreed upon be- and indirect) from the price. (Because
fore contract award. this definition of profit is based on
(5) Appropriate consideration should Federal procurement principles, it may
be given to § 30.710 of this subchapter vary from the firm’s definition of profit
which contains general cost principles for other purposes.) Profit on a sub-
which must be used to determine the agreement and each amendment to a
allowability of costs under grants. The subagreement under a grant should be
engineer’s actual costs, direct and indi- sufficient to attract engineers who pos-
rect, allowable for Federal participa- sess talents and skills necessary to the
tion shall be determined in accordance accomplishment of project objectives,
with the terms and conditions of the and to stimulate efficient and expedi-
subagreement, this subpart and the tious completion of the project. Where
cost principles included in 41 CFR 1– cost review is performed, the grantee
15.2 and 1–15.4. Examples of cost which should review the estimate of profit as
are not allowable under those cost he reviews all other elements of price.
principles include entertainment, in-
terest on borrowed capital and bad § 35.937–8 Award of subagreement.
debts.
After the close of negotiations and
(6) The engineer shall have an ac-
after review and approval by the EPA
counting system which accounts for
Project Officer if required under
costs in accordance with generally ac-
§ 35.937–6(b), the grantee may award the
cepted accounting principles. This sys-
contract. Unsuccessful candidates
tem shall provide for the identifica-
should be notified promptly.
tion, accumulation, and segregation of
allowable and unallowable project § 35.937–9 Required solicitation and
costs among projects. Allowable subagreement provisions.
project costs shall be determined in ac-
cordance with paragraph (c)(5) of this (a) Required solicitation statement. Re-
section. The engineer must propose and quests for qualifications or proposals
account for costs in a manner con- must include the following statement,
sistent with his normal accounting as well as the proposed terms of the
procedures. subagreement.
(7) Subagreements awarded on the Any contract awarded under this request
basis of review of a cost element sum- for (qualifications/professional proposals) is
mary and a certification of complete, expected to be funded in part by a grant from
current, and accurate cost and pricing the United States Environmenal Protection
data shall be subject to downward re- Agency. This procurement will be subject to
negotiation or recoupment of funds regulations contained in 40 CFR 35.936, 35.937,
where the Regional Administrator de- and 35.939. Neither the United States nor the
United States Environmental Protection
termines that such certification was Agency is nor will be a party to this request
not based on complete, current, and ac- for (qualifications/professional proposals) or
curate cost and pricing data or not any resulting contract.
based on costs allowable under the ap-
propriate FPR cost principles (41 CFR (b) Content of subagreement. Each sub-
1–15.2 and 1–15.4) at the time of award. agreement must adequately define:
(1) The scope and extent of project
§ 35.937–7 Profit. work;
The objective of negotiations shall be (2) The time for performance and
the exercise of sound business judg- completion of the contract work, in-
ment and good administrative practice cluding where appropriate, dates for
including the determination of a fair completion of significant project tasks;
and reasonable profit based on the (3) Personnel and facilities necessary
firm’s assumption of risk and input to to accomplish the work within the re-
total performance and not merely the quired time;
application of a predetermined percent- (4) The extent of subcontracting and
age factor. For the purpose of sub- consultant agreements; and
475
§ 35.937–10 40 CFR Ch. I (7–1–00 Edition)
(5) Payment provisions in accordance awarding such subcontracts must com-

with § 35.937–10. ply with the following:
If any of these elements cannot be de- (1) Section 35.936–2 (Grantee procure-
fined adequately for later tasks or ment systems; State or local law);
steps at the time of contract execution, (2) Section 35.936–7 (Small and minor-
the contract should not include the ity business);
subsequent tasks or steps at that time. (3) Section 35.936–15 (Limitations on
(c) Required subagreement provisions. subagreement award);
Each consulting engineering contract (4) Section 35.936–17 (Fraud and other
must include the provisions set forth in unlawful or corrupt practices);
appendix C–1 to this subpart. (5) Section 35.937–6 (Cost and price
considerations);
§ 35.937–10 Subagreement payments— (6) Section 35.937–7 (Profit);
architectural or engineering serv- (7) Prohibition of percentage-of-con-
ices. struction-cost and cost-plus-percent-
The grantee shall make payment to age-of-cost contracts (see § 35.937–1);
the engineer in accordance with the and
payment schedule incorporated in the (8) Applicable subagreement clauses
engineering agreement or in accord- (see appendix C–1, clauses 9, 17, 18; note
ance with paragraph 7b of appendix C– clause 10).
1 to this subpart. Any retainage is at (c) The applicable provisions of this
the option of the grantee. No payment subpart shall apply to lower tier sub-
request made by the Engineer under agreements where an engineer acts as
the agreement may exceed the esti- an agent for the grantee under a man-
mated amount and value of the work agement subagreement (see § 35.936–
and services performed. 5(b)).
(d) If an engineer procures items or
§ 35.937–11 Applicability to existing services (other than architectural or
contracts. engineering services) which are more
Some negotiated engineering sub- appropriately procured by formal ad-
agreements already in existence may vertising or competitive negotiation
not comply with the requirements of procedures, the applicable procedures
§§ 35.936 and 35.937. Appendix D to this of § 35.938 or of part 33 shall be ob-
subpart contains EPA policy with reserved.
spect to these subagreements and must
be implemented before the grant award § 35.938 Construction contracts (sub-
agreements) of grantees.
action for the next step under the
grant. § 35.938–1 Applicability.
§ 35.937–12 Subcontracts under sub- This section applies to construction
agreements for architectural or en- contracts (subagreements) in excess of
gineering services. $10,000 awarded by grantees for any
(a) Neither award and execution of step 3 project.
subcontracts under a prime contract
§ 35.938–2 Performance by contract.
for architectural or engineering serv-
ices, nor the procurement and negotia- The project work shall be performed
tion procedures used by the engineer in under one or more contracts awarded
awarding such subcontracts are re- by the grantee to private firms, except
quired to comply with any of the provi- for force account work authorized by
sions, selection procedures, policies or § 35.936–14.
principles set forth in § 35.936 or § 35.937
except as provided in paragraphs (b), § 35.938–3 Type of contract.
(c), and (d) of this section. Each contract shall be a fixed price
(b) The award or execution of sub- (lump sum or unit price or a combina-
contracts in excess of $10,000 under a tion of the two) contract, unless the
prime contract for architectural or en- Regional Administrator gives advance
gineering services and the procurement written approval for the grantee to use
procedures used by the engineer in some other acceptable type of contract.
476
The cost-plus-percentage-of-cost con- tion of bid prices, and the basis and
tract shall not be used in any event. method for award of the contract;
(4) Responsibility requirements or
§ 35.938–4 Formal advertising. criteria which will be employed in
Each contract shall be awarded after evaluating bidders;
formal advertising, unless negotiation (5) The following statement:
is permitted in accordance with Any contract or contracts awarded under
§ 35.936–18. Formal advertising shall be this invitation for bids are expected to be
in accordance with the following: funded in part by a grant from the U.S. Envi-
(a) Adequate public notice. The grant- ronmental Protection Agency. Neither the
ee will cause adequate notice to be United States nor any of its departments,
given of the solicitation by publication agencies or employees is or will be a party to
this invitation for bids or any resulting con-
in newspapers or journals of general tract. This procurement will be subject to
circulation beyond the grantee’s local- regulations contained in 40 CFR 35.936, 35.938,
ity (statewide, generally), inviting bids and 35.939.;
on the project work, and stating the
method by which bidding documents and
may be obtained or examined. Where (6) A copy of §§ 35.936, 35.938, and
the estimated cost of step 3 construc- 35.939.
tion is $10 million or more, the grantee (d) Sealed bids. The grantee shall pro-
must generally publish the notice in vide for bidding by sealed bid and for
trade journals of nationwide distribu- the safeguarding of bids received until
tion. The grantee should, in addition, public opening.
solicit bids directly from bidders if it (e) Addenda to bidding documents. If a
maintains a bidders list. grantee desires to amend any part of
(b) Adequate time for preparing bids. the bidding documents (including
Adequate time, generally not less than drawings and specifications) during the
30 days, must be allowed between the period when bids are being prepared,
date when public notice under para- the addenda shall be communicated in
graph (a) of this section is first pub- writing to all firms which have ob-
lished and the date by which bids must tained bidding documents in time to be
be submitted. Bidding documents (in- considered before the bid opening time.
cluding specifications and drawings) (f) Bid modifications. A firm which has
shall be available to prospective bid- submitted a bid shall be allowed to
ders from the date when such notice is modify or withdraw its bid before the
first published. time of bid opening.
(c) Adequate bidding documents. The (g) Public opening of bids. The grantee
grantee shall prepare a reasonable shall provide for a public opening of
number of bidding documents (invita- bids at the place, date and time an-
tions for bids) and shall furnish them nounced in the bidding documents.
upon request on a first-come, first- (h) Award to the low, responsive, re-
served basis. The grantee shall main- sponsible bidder. (1) After bids are
tain a complete set of bidding docu- opened, the grantee shall evaluate
ments and shall make them available them in accordance with the methods
for inspection and copying by any and criteria set forth in the bidding
party. The bidding documents shall in- documents.
clude: (2) The grantee may reserve the right
(1) A complete statement of the work to reject all bids. Unless all bids are re-
to be performed, including necessary jected for good cause, award shall be
drawings and specifications, and the re- made to the low, responsive, respon-
quired completion schedule. (Drawings sible bidder.
and specifications may be made avail- (3) If the grantee intends to make the
able for inspection and purchase, in- award to a firm which did not submit
stead of being furnished.); the lowest bid, he shall prepare a writ-
(2) The terms and conditions of the ten statement before any award, ex-
contract to be awarded; plaining why each lower bidder was
(3) A clear explanation of the method deemed nonresponsible or nonrespon-
of bidding and the method of evalua- sive, and shall retain it in his files.
477
§ 35.938–5 40 CFR Ch. I (7–1–00 Edition)
(4) State or local laws, ordinances, (3) Assure a fair and reasonable price
regulations or procedures which are de- for the required work.
signed or which operate to give local or (b) Changes in contract price or time.
in-State bidders preference over other The contract price or time may be
bidders shall not be employed in evalu- changed only by a change order. When
ating bids. negotiations are required, they shall be
(5) If an unresolved procurement re- conducted in accordance with para-
view issue or a protest relates only to graph (c) or (d) of this section, as ap-
award of a subcontract or procurement propriate. The value of any work cov-
of a subitem under the prime contract, ered by a change order or of any claim
and resolution of that issue or protest for increase or decrease in the contract
is unduly delaying performance of the price shall be determined by the meth-
prime contract, the Regional Adminis- od set forth in paragraphs (b) (1)
trator may authorize award and per- through (3) of this section which is
formance of the prime contract before most advantageous to the grantee.
resolution of the issue or protest, if the (1) Unit prices—(i) Original bid items.
Regional Administrator determines Unit prices previously approved are ac-
that: ceptable for pricing changes of original
(i) Resolution of the protest— bid items. However, when changes in
(A) Will not affect the placement of quantities exceed 15 percent of the
the prime contract bidders; and original bid quantity and the total dol-
(B) Will not materially affect initial lar change of that bid item is signifi-
performance of the prime contract; and cant, the grantee shall review the unit
that price to determine if a new unit price
(ii) Award of the prime contract— should be negotiated.
(A) Is in the Government’s best inter- (ii) New items. Unit prices of new
est; items shall be negotiated.
(B) Will not materially affect resolu- (2) A lump sum to be negotiated.
tion of the protest; and (3) Cost reimbursement—the actual
(C) Is not barred by State law. cost for labor, direct overhead, mate-
(6) The grantee shall not reject a bid rials, supplies, equipment, and other
as nonresponsive for failure to list or services necessary to complete the
otherwise indicate the selection of a work plus an amount to be agreed upon
subcontractor(s) or equipment, unless to cover the cost of general overhead
the grantee has unambiguously stated and profit to be negotiated.
in the solicitation documents that such (c) For each change order not in ex-
failure to list shall render a bid non- cess of $100,000 the contractor shall
responsive and shall cause rejection of submit sufficient cost and pricing data
a bid. to the grantee to enable the grantee to
determine the necessity and reason-
§ 35.938–5 Negotiation of contract ableness of costs and amounts pro-
amendments (change orders). posed, and the allowability and eligi-
(a) Grantee responsibility. Grantees are bility of costs proposed.
responsible for negotiation of construc- (d) For each change order in excess of
tion contract change orders. This func- $100,000, the contractor shall submit to
tion may be performed by the grantee the grantee for review sufficient cost
directly or, if authorized, by his engi- and pricing data as described in para-
neer. During negotiations with the con- graphs (d) (1) through (6) of this section
tractor the grantee shall: to enable the grantee to ascertain the
(1) Make certain that the contractor necessity and reasonableness of costs
has a clear understanding of the scope and amounts proposed, and the allow-
and extent of work and other essential ability and eligibility of costs pro-
requirements; posed.
(2) Assure that the contractor dem- (1) As a minimum, proposed change
onstrates that he will make available order costs shall be presented on EPA
or will obtain the necessary personnel, Form 5700–41 on which the contractor
equipment and materials to accomplish shall certify that proposed costs reflect
the work within the required time; and complete, current, and accurate cost
478
and pricing data applicable to the date where subsequent audit substantiates
of the change order. that such certification was not based
(2) In addition to the specific ele- on complete, current and accurate cost
ments of cost, the estimated amount of and pricing data and on costs allowable
profit shall be set forth separately in under the appropriate FPR cost prin-
the cost summary for fixed price ciples (41 CFR 1–15.2 and 1–15.4) at the
change orders and a specific total dol- time of change order execution.
lar amount of profit will be set forth (e) EPA review. In addition to the re-
separately in the cost summary for quirements of §§ 35.935–10 (copies of con-
cost reimbursement change orders. tract documents) and 35.935–11 (project
(3) The grantee may require more de- changes), the grantee shall submit, be-
tailed cost data than the form requires fore the execution of any change order
in order to substantiate the reason- in excess of $100,000, to the EPA
ableness of proposed change order Project Officer for review:
costs. EPA normally requires more de- (1) The cost and pricing data the con-
tailed documentation only when the tractor submitted;
contractor is unable to certify that (2) A certification of review and ac-
proposed change order cost data are ceptance of the contractor’s cost or
complete, current, and accurate. EPA price; and
may, on a selected basis, perform a de- (3) A copy of the proposed change
tailed cost analysis on any change order.
order. (f) Profit. The objective of negotia-
(4) Appropriate consideration should tions shall be the exercise of sound
be given to § 30.710 of this subchapter business judgment and good adminis-
which contains general cost principles trative practice including the deter-
which must be used for the determina- mination of a fair and reasonable profit
tion and allowability of costs under based on the contractor’s assumption
grants. The contractor’s actual costs, of risk and input to total performance
direct and indirect, allowable for Fed- and not merely the application of a
eral participation shall be determined predetermined percentage factor. For
in accordance with the terms and con- the purpose of negotiated change or-
ditions of the contract, this subpart ders to construction contracts under
and the cost principles included in 41 EPA grants, profit is defined as the net
CFR 1–15.2 and 1–15.4. Examples of costs proceeds obtained by deducting all al-
which are not allowable under those lowable costs (direct and indirect) from
cost principles include, but are not the price. The grantee should review
limited to, entertainment, interest on the estimate or profit as he reviews all
borrowed capital and bad debts. other elements of price.
(5) For costs under cost reimburse- (g) Related work. Related work shall
ment change orders, the contractor not be split into two amendments or
shall have an accounting system which change orders merely to keep it under
accounts for such costs in accordance $100,000 and thereby avoid the require-
with generally accepted accounting ments of paragraph (d) of this section.
principles. This system shall provide For change orders which include both
for the identification, accumulation additive and deductive items:
and segregation of allowable and unal- (1) If any single item (additive or de-
lowable change orders. Allowable ductive) exceeds $100,000, the require-
change order costs shall be determined ments of paragraph (d) of this section
in accordance with paragraph (d)(4) of shall be applicable.
this section. The contractor must pro- (2) If no single additive or deductive
pose and account for such costs in a item has a value of $100,000, but the
manner consistent with his normal ac- total price of the change order is over
counting procedures. $100,000, the requirements of paragraph
(6) Change orders awarded on the (d) of this section shall be applicable.
basis of review of a cost element sum- (3) If the total of additive items of
mary and a certification of complete, work in the change order exceeds
current, and accurate cost and pricing $100,000, or the total of deductive items
data shall be subject to downward re- of work in the change order exceeds
negotiation or recoupment of funds $100,000, and the net price of the change
479
§ 35.938–6 40 CFR Ch. I (7–1–00 Edition)
order is less than $100,000, the require- referred to in paragraph (b)(3) of this
ments of paragraph (d) of this section section. This protection must be ac-
shall apply. ceptable to the grantee and must take
the form of:
§ 35.938–6 Progress payments to con- (1) Securities negotiable without re-
tractors. course, condition or restrictions, a
(a) Policy. EPA policy is that, except progress payment bond, or an irrev-
as State law otherwise provides, grant- ocable letter of credit provided to the
ees should make prompt progress pay- grantee through the prime contractor
ments to prime contractors and prime by the subcontractor or supplier; and,
contractors should make prompt (2) For items or equipment in excess
progress payment to subcontractors of $200,000 in value which are manufac-
and suppliers for eligible construction, tured in a jurisdiction in which the
material, and equipment costs, includ- Uniform Commercial Code is applica-
ing those of undelivered specifically ble, the creation and perfection of a se-
manufactured equipment, incurred curity interest under the Uniform
under a contract under an EPA con- Commercial Code reasonably adequate
struction grant. to protect the interests of the grantee.
(b) Conditions of progress payments. (d) Limitations on progress payments
For purposes of this section, progress for specifically manufactured equipment.
payments are defined as follows: (1) Progress payments made for specifi-
(1) Payments for work in place. cally manufactured equipment or
(2) Payments for materials or equip- items shall be limited to the following:
ment which have been delivered to the (i) A first payment upon submission
construction site, or which are stock- by the prime contractor of shop draw-
piled in the vicinity of the construc- ings for the equipment or items in an
tion site, in accordance with the terms amount not exceeding 15 percent of the
of the contract, when conditional or contract or item price plus appropriate
final acceptance is made by or for the and allowable higher tier costs; and
grantee. The grantee shall assure that (ii) Subsequent to the grantee’s re-
items for which progress payments lease or approval for manufacture, ad-
have been made are adequately insured ditional payments not more frequently
and are protected through appropriate than monthly thereafter up to 75 per-
security measures. Costs of such insur- cent of the contract or item price plus
ance and security are allowable costs appropriate and allowable higher tier
in accordance with § 35.940. costs. However, payment may also be
(3) Payments for undelivered specifi- made in accordance with the contract
cally manufactured items or equip- and grant terms and conditions for an-
ment (excluding off-the-shelf or cata- cillary onsite work before delivery of
log items), as work on them progresses. the specifically manufactured equip-
Such payments must be made if provi- ment or items.
sions therefor are included in the bid (2) In no case may progress payments
and contract documents. Such provi- for undelivered equipment or items
sions may be included at the option of under paragraph (d)(1)(i) or (d)(1)(ii) of
the grantee only when all of the fol- this section be made in an amount
lowing conditions exist: greater than 75 percent of the cumu-
(i) The equipment is so designated in lative incurred costs allocable to con-
the project specifications; tract performance with respect to the
(ii) The equipment to be specifically equipment or items. Submission of a
manufactured for the project could not request for any such progress payments
be readily utilized on nor diverted to must be accompanied by a certification
another job; and furnished by the fabricator of the
(iii) A fabrication period of more equipment or item that the amount of
than 6 months is anticipated. progress payment claimed constitutes
(c) Protection of progress payments not more than 75 percent of cumulative
made for specifically manufactured equip- incurred costs allocable to contract
ment. The grantee will assure protec- performance, and in addition, in the
tion of the Federal interest in progress case of the first progress payment re-
payments made for items or equipment quest, a certification that the amount
480
claimed does not exceed 15 percent of that amount necessary to assure com-
the contract or item price quoted by pletion.
the fabricator. (4) The grantee may reinstate up to
(3) As used in this section, the term 10 percent withholding if the grantee
costs allocable to contract performance determines, at its discretion, that the
with respect to undelivered equipment contractor is not making satisfactory
or items includes all expenses of con- progress or there is other specific cause
tract performance which are reason- for such withholding.
able, allocable to the contract, con- (5) The grantee may accept securities
sistent with sound and generally ac- negotiable without recourse, condition
cepted accounting principles and prac- or restrictions, a release of retainage
tices consistently applied, and which
bond, or an irrevocable letter of credit
are not excluded by the contract.
provided by the contractor instead of
(e) Enforcement. A subcontractor or
all or part of the cash retainage.
supplier which is determined by the
Regional Administrator to have frus- (b) The foregoing retention policy
trated the intent of the provisions re- shall be implemented with respect to
garding progress payments for major all step 3 projects for which plans and
equipment or specifically manufac- specifications are approved after March
tured equipment through intentional 1, 1976. Appropriate provision to assure
forfeiture of its bond or failure to de- compliance with this policy must be in-
liver the equipment may be determined cluded in the bid documents for such
nonresponsible and ineligible for fur- projects initially or by addendum be-
ther work under EPA grants. fore the bid submission date, and as a
(f) Contract provisions. Where applica- special condition in the grant agree-
ble, appropriate provisions regarding ment or in a grant amendment. For all
progress payments must be included in previous active projects, the grantee
each contract and subcontract. Grant- may implement the foregoing policy
ees must use clauses acceptable to the through contract amendment upon
EPA Regional Administrator. written request to the grantee by the
(g) Implementation. The foregoing contractor upon consideration that the
progress payments policy should be im- grantee deems adequate.
plemented in invitations for bids under (c) Under § 30.620–3 of this subchapter,
step 3 grants. If provision for progress a grantee who delays disbursement of
payments is made after contract grant funds will be required to credit
award, it must be for consideration to the United States all interest earned
that the grantee deems adequate. on those funds.
§ 35.938–7 Retention from progress § 35.938–8 Required construction con-
payments. tract provisions.
(a) The grantee may retain a portion
Each construction contract must in-
of the amount otherwise due the con-
clude the ‘‘Supplemental General Con-
tractor. Except as State law otherwise
ditions’’ set forth in appendix C–2 to
provides, the amount the grantee re-
tains shall be limited to the following: this subpart.
(1) Withholding of not more than 10 § 35.938–9 Subcontracts under con-
percent of the payment claimed until struction contracts.
work is 50 percent complete;
(2) When work is 50 percent complete, (a) The award or execution of sub-
reduction of the withholding to 5 per- contracts by a prime contractor under
cent of the dollar value of all work sat- a construction contract awarded to the
isfactorily completed to date, provided prime contractor by the grantee, and
that the contractor is making satisfac- the procurement and negotiation pro-
tory progress and there is no specific cedures used by prime contractors in
cause for greater withholding; awarding or executing subcontracts are
(3) When the work is substantially not required to comply with any of the
complete (operational or beneficial oc- provisions, selection procedures, poli-
cupancy), the withheld amount shall be cies or principles set forth in § 35.936 or
further reduced below 5 percent to only § 35.938 except those specifically stated
481
§ 35.939 40 CFR Ch. I (7–1–00 Edition)
in this section. In addition, the bid pro- view is filed under paragraph (b)(2) of
test procedures of § 35.939 are not avail- this section. In the case of protests
able to parties executing subcontracts which he determines are untimely,
with prime contractors except as spe- frivolous, or without merit, the Re-
cifically provided in that section. gional Administrator may take such
(b) The award or execution of sub- actions as are described in paragraphs
contracts by a prime contractor under (f)(7), (i)(2), and (k) of this section.
a formally advertised, competitively (b) Time limitations. (1) A protest
bid, fixed price construction contract under paragraph (d) of this section
awarded to the prime contractor by the should be made as early as possible
grantee, and the procurement and ne- during the procurement process (for ex-
gotiation procedures used by such ample, immediately after issuance of a
prime contractors in awarding or exe- solicitation for bids) to avoid disrup-
cuting such subcontracts must comply tion of or unnecessary delay to the pro-
with the following: curement process. A protest authorized
(1) Section 35.936–2 (Grantee procure- by paragraph (d) of this section must
ment systems; State or local law); be received by the grantee within 1
(2) Section 35.936–7 (Small and minor- week after the basis for the protest is
ity business); known or should have been known,
(3) Section 35.936–13 (Specifications); whichever is earlier (generally, for for-
(4) Section 35.936–15 (Limitations on mally advertised procurement, after
subagreement award); bid opening, within 1 week after the
(5) Section 35.936–17 (Fraud and other basis for the protest is, or should have
unlawful or corrupt practices); been, known).
(6) Section 35.938–5(d) (Negotiation of
(i) However, in the case of an alleged
contract amendments); and
violation of the specification require-
(7) Applicable subagreement clauses
ments of § 35.936–13 (e.g., that a product
(see appendix C–2, clauses 8, 10, 14, 15,
fails to qualify as an ‘‘or equal’’) or
16; note clause 11).
(c) The award of subcontracts under other specification requirements of
construction contracts not described this subpart, a protest need not be filed
above in paragraph (b) of this section prior to the opening of bids. But the
and the procurement and negotiation grantee may resolve the issue before
procedures of prime contractors on receipt of bids or proposals through a
contracts not meeting that description written or other formal determination,
must comply with paragraphs (b)(1) after notice and opportunity to com-
through (4) of this section as well as ment is afforded to any party with a di-
the principles of § 35.938–5. rect financial interest.
(ii) In addition, where an alleged vio-
§ 35.939 Protests. lation of the specification require-
(a) General. A protest based upon an ments of § 35.936–13 or other require-
alleged violation of the procurement ments of this subpart first arises subse-
requirements of §§ 35.936 through 35.938– quent to the receipt of bids or pro-
9 of this subpart may be filed against a posals, the grantee must decide the
grantee’s procurement action by a protest if the protest was received by
party with an adversely affected direct the grantee within 1 week of the time
financial interest. Any such protest that the grantee’s written or other for-
must be received by the grantee within mal notice is first received.
the time period in paragraph (b)(1) of (2) A protest appeal authorized by
this section. The grantee is responsible paragraph (e) of this section must be
for resolution of the protest before the received by the Regional Adminis-
taking of the protested action, in ac- trator within 1 week after the com-
cordance with paragraph (d) of this sec- plainant has received the grantee’s de-
tion, except as otherwise provided by termination.
paragraph (j) or (k) or § 35.938–4(h)(5). (3) If a protest is mailed, the com-
The Regional Administrator will re- plaining party bears the risk of non-
view grantee protest determinations in delivery within the required time pe-
accordance with paragraph (e) of this riod. It is suggested that all documents
section, if a timely request for such re- transmitted in accordance with this
482
section be mailed by certified mail (re- (iii) Obtain an appropriate extension

turn receipt requested) or otherwise de- of the period for acceptance of the bid
livered in a manner which will objec- and bid bond(s) of each interested
tively establish the date of receipt. Ini- party, where applicable; failure to
tiation of protest actions under para- agree to a suitable extension of such
graph (d) or (e) of this section may be bid and bid bond(s) by the party which
made by brief telegraphic notice ac- initiated the protest shall be cause for
companied by prompt mailing or other summary dismissal of the protest by
delivery of a more detailed statement the grantee or the Regional Adminis-
of the basis for the protest. Telephonic trator; and
protests will not be considered. (iv) Promptly deliver (preferably by
(c) Other initial requirements. (1) The certified mail, return receipt re-
initial protest document must briefly quested, or by personal delivery) its
state the basis for the protest, and written determination of the protest to
should— the complaining party and to each
(i) Refer to the specific section(s) of other participating party.
this subpart which allegedly prohibit (3) The grantee’s determination must
the procurement action; be accompanied by a legal opinion ad-
(ii) Specifically request a determina- dressing issues arising under State,
tion pursuant to this section; territorial, or local law (if any) and,
where step 3 construction is involved,
(iii) Identify the specific procure-
by an engineering report, if appro-
ment document(s) or portion(s) of them
priate.
in issue; and
(4) The grantee should decide the pro-
(iv) Include the name, telephone
test as promptly as possible—generally
number, and address of the person rep-
within 3 weeks after receipt of a pro-
resenting the protesting party.
test, unless extenuating circumstances
(2) The party filing the protest must require a longer period of time for
concurrently transmit a copy of the proper resolution of the protest.
initial protest document and any at- (e) Regional Administrator review. (1) A
tached documentation to all other par- party with a direct financial interest
ties with a direct financial interest adversely affected by a grantee deter-
which may be adversely affected by the mination made under paragraph (d)
determination of the protest (gen- with respect to a procurement require-
erally, all bidders or proposers who ap- ment of this subpart may submit a
pear to have a substantial and reason- written request to the Regional Admin-
able prospect of receiving an award if istrator for his review of such deter-
the protest is denied or sustained) and mination. Any such request must be in
to the appropriate EPA Regional Ad- writing, must adequately state the
ministrator. basis for the protest (including ref-
(d) Grantee determination. (1) The erence to the specific section(s) of this
grantee is responsible for the initial subpart alleged to prohibit the procure-
resolution of protests based upon al- ment action), and must be received by
leged violations of the procurement re- the Regional Administrator within 1
quirements of this subpart. week after the complaining party has
(2) When the grantee receives a time- received the grantee’s determination of
ly written protest, he must defer the the protest. A copy of the grantee’s de-
protested procurement action (see termination and other documentation
paragraph (h) of this section) and: in support of the request for review
(i) Afford the complaining party and shall be transmitted with the request.
interested parties an opportunity to (2) The Regional Counsel or his del-
present arguments in support of their egee will afford both the grantee and
views in writing or at a conference or the complaining party, as well as any
other suitable meeting (such as a city other party with a financial interest
council meeting), which may be adversely affected by de-
(ii) Inform the complainant and other termination of the protest, an oppor-
interested parties of the procedures tunity to present arguments in support
which the grantee will observe for reso- of their views in writing or at a con-
lution of the protest; ference at a time and place convenient
483
§ 35.939 40 CFR Ch. I (7–1–00 Edition)
to the parties as determined by the Re- (iv) If none of the foregoing ade-
gional Counsel or his delegee, and he quately resolve the issue, published de-
shall thereafter promptly submit in cisions of the Comptroller General of
writing his report and recommenda- the United States (U.S. General Ac-
tions (or recommended determination) counting Office) or of the Federal
concerning the protest to the Regional courts addressing Federal requirements
Administrator. comparable to procurement require-
(3) Any such conference should be ments of this subpart.
held within not more than 10 days after (2) For the determination of Federal
receipt of the request for review and issues presented by the protest, the Re-
the report should be transmitted to the gional Administrator may rely upon:
Regional Administrator within 10 days (i) Determinations of other protests
after the date set for receipt of the par- decided under this section, unless such
ticipants’ written materials or for the protests have been reversed; and
conference. The Regional Adminis- (ii) Decisions of the Comptroller Gen-
trator should transmit his determina- eral of the United States or of the Fed-
tion of the protest with an adequate eral courts addressing Federal require-
explanation thereof to the grantee and ments comparable to procurement re-
simultaneously to each participating quirements of this subpart.
party within 1 week after receipt of the
(3) The Regional Counsel may estab-
report and recommendations. His de-
lish additional procedural require-
termination shall constitute final
ments or deadlines for the submission
agency action, from which there shall
of materials by parties or for the ac-
be no further administrative appeal.
complishment of other procedures.
The Regional Counsel may extend
Where time limitations are established
these time limitations, where appro-
by this section or by the Regional
priate.
Counsel, participants must seek to ac-
(4) The Regional Administrator may
complish the required action as
review the record considered by the
promptly as possible in the interest of
grantee, and any other documents or
expediting the procurement action.
arguments presented by the parties, to
determine whether the grantee has (4) A party who submits a document
complied with this subpart and has a subsequent to initiation of a protest
rational basis for its determination. proceeding under paragraph (d) or (e) of
(5) If a determination is made by the this section must simultaneously fur-
Regional Administrator which is favor- nish each other party with a copy of
able to the complainant, the grantee’s such document.
procurement action (for example, con- (5) The procedures established by this
tract award) must be taken in accord- section are not intended to preclude in-
ance with such determination. formal resolution or voluntary with-
(f) Procedures. (1) Where resolution of drawal of protests. A complainant may
an issue properly raised with respect to withdraw its appeal at any time, and
a procurement requirement of this sub- the protest proceeding shall thereupon
part requires prior or collateral resolu- be terminated.
tion of a legal issue arising under State (6) The Regional Administrator may
or local law, and such law is not clear- utilize appropriate provisions of this
ly established in published legal deci- section in the discharge of his responsi-
sions of the State or other relevant ju- bility to review grantee procurement
risdiction, the grantee or Regional Ad- under 40 CFR 35.935–2.
ministrator may rely upon: (7) A protest may be dismissed for
(i) An opinion of the grantee’s legal failure to comply with procedural re-
counsel adequately addressing the quirements of this section.
issue (see § 35.936–2(b)); (g) Burden of proof. (1) In proceedings
(ii) The established or consistent under paragraphs (d) and (e) of this sec-
practice of the grantee, to the extent tion, if the grantee proposes to award a
appropriate; or formally advertised, competitively bid,
(iii) The law of other States or local fixed price contract to a party who has
jurisdictions as established in pub- submitted the apparent lowest price,
lished legal decisions; or the party initiating the protest will
484
bear the burden of proof in the protest U.S.C. 4621 et seq., 4651 et seq.), and part
proceedings. 4 of this chapter;
(2) In the proceedings under para- (h) Costs of complying with the Na-
graph (e) of this section— tional Environmental Policy Act, in-
(i) If the grantee proposes to award a cluding costs of public notices and
formally advertised, competitively bid, hearings;
fixed-price contract to a bidder other (i) Preparation of construction draw-
than the bidder which submitted the ings, specifications, estimates, and
apparent lowest price, the grantee will construction contract documents;
bear the burden of proving that its de- (j) Landscaping;
termination concerning responsiveness (k) Removal and relocation or re-
is in accordance with this subchapter; placement of utilities, for which the
and grantee is legally obligated to pay;
(ii) If the basis for the grantee’s (l) Materials acquired, consumed, or
determination is a finding of non- expended specifically for the project;
responsibility, the grantee must estab- (m) A reasonable inventory of labora-
lish and substantiate the basis for its tory chemicals and supplies necessary
determination and must adequately es- to initiate plant operations;
tablish that such determination has (n) Development and preparation of
been made in good faith.coverage) as is an operation and maintenance manual;
required by State or local law or the (o) A plan of operation, in accordance
grantee or as is customary and appro- with guidance issued by the Adminis-
priate. Under the Flood Disaster Pro- trator;
tection Act of 1973, a contractor must (p) Start-up services for new treat-
purchase flood insurance to cover his ment works, in accordance with guid-
risk of loss if the grantee has not pur- ance issued by the Administrator;
chased the insurance (see § 30.405–10 of (q) Project identification signs
this subchapter). (§ 30.625–3 of this chapter);
(r) Development of a municipal
§ 35.940 Determination of allowable pretreatment program approvable
costs. under part 403 of this chapter, and pur-
The grantee will be paid, upon re- chase of monitoring equipment and
quest in accordance with § 35.945, for construction of facilities to be used by
the Federal share of all necessary costs the municipal treatment works in the
within the scope of the approved pretreatment program;
project and determined to be allowable (s) Costs of complying with the pro-
in accordance with § 30.705 of this chap- curement requirements of these regula-
ter, this subpart, and the grant agree- tions (see § 35.936–20).
ment. (t) Reasonable costs of public partici-
pation incurred by grantees which are
§ 35.940–1 Allowable project costs. identified in a public participation
Allowable costs include: work plan, or which are otherwise ap-
(a) Costs of salaries, benefits, and ex- proved by EPA, shall be allowable.
pendable material the grantee incurs [43 FR 44049, Sept. 27, 1978, as amended at 44
for the project, except as provided in FR 10304, Feb. 16, 1979]
§ 35.940–2(g);
(b) Costs under construction con- § 35.940–2 Unallowable costs.
tracts; Costs which are not necessary for the
(c) Professional and consultant serv- construction of a treatment works
ices; project are unallowable. Such costs in-
(d) Facilities planning directly re- clude, but are not limited to:
lated to the treatment works; (a) Basin or areawide planning not di-
(e) Sewer system evaluation (§ 35.927); rectly related to the project;
(f) Project feasibility and engineering (b) Bonus payments not legally re-
reports; quired for completion of construction
(g) Costs required under the Uniform before a contractual completion date;
Relocation Assistance and Real Prop- (c) Personal injury compensation or
erty Acquisition Policies Act of 1970 (42 damages arising out of the project,
485
§ 35.940–3 40 CFR Ch. I (7–1–00 Edition)
whether determined by adjudication, (c) Land acquired after December 26,

arbitration, negotiation, or otherwise; 1977, that will be used for composting
(d) Fines and penalties due to viola- or temporary storage of compost resi-
tions of, or failure to comply with, dues which result from wastewater
Federal, State, or local laws; treatment, if EPA has approved a pro-
(e) Costs outside the scope of the ap- gram for use of the compost.
proved project; (d) Acquisition of an operable portion
(f) Interest on bonds or any other of a treatment works. This type of ac-
form of indebtedness required to fi- quisition is generally not allowable ex-
nance the project costs; cept when determined by the Regional
(g) Ordinary operating expenses of Administrator in accordance with guid-
local government, such as salaries and ance issued by the Administrator.
expenses of a mayor, city council mem- (e) Rate determination studies re-
bers, or city attorney, except as pro- quired under § 35.925–11.
vided in § 35.940–4; (f) A limited amount of end-of-pipe
(h) Site acquisition (for example, sampling and associated analysis of in-
sewer rights-of-way, sewage treatment dustrial discharges to municipal treat-
plantsite, sanitary landfills and sludge ment works as provided in § 35.907(f).
disposal areas) except as otherwise pro-
vided in § 35.940–3(a); § 35.940–4 Indirect costs.
(i) Costs for which payment has been Indirect costs shall be allowable in
or will be received under another Fed- accordance with an indirect cost agree-
eral assistance program; ment negotiated and incorporated in
(j) Costs of equipment or material the grant agreement. An indirect cost
procured in violation of § 35.938–4(h); agreement must identify those cost
(k) Costs of studies under § 35.907 elements allowable under § 35.940–1.
(d)(6) and (7) when performed solely for Where the benefits derived from indi-
the purpose of seeking an allowance for rect services cannot be readily deter-
removal of pollutants under part 403 of mined, a lump sum for overhead may
this chapter; be negotiated if EPA determines that
(l) Costs of monitoring equipment this amount will be approximately the
used by industry for sampling and same as the actual indirect costs.
analysis of industrial discharges to mu-
nicipal treatment works; § 35.940–5 Disputes concerning allow-
(m) Construction of privately-owned able costs.
treatment works, including pretreat- The grantee should seek to resolve
ment facilities, except as authorized by any questions relating to cost allow-
section 201(h) of the Act and § 35.918; ability or allocation at its earliest op-
(n) Preparation of a grant applica- portunity (if possible, before execution
tion, including a plan of study. of the grant agreement). Final deter-
minations concerning the allowability
§ 35.940–3 Costs allowable, if approved. of costs shall be conclusive unless ap-
Certain direct costs are sometimes pealed within 30 days in accordance
necessary for the construction of a with the ‘‘Disputes’’ provisions of part
treatment works. The following costs 30, subpart J, of this subchapter.
are allowable if reasonable and if the
Regional Administrator approves them § 35.945 Grant payments.
in the grant agreement. The grantee shall be paid the Federal
(a) Land acquired after October 17, share of allowable project costs in-
1972, that will be an integral part of the curred within the scope of an approved
treatment process, or that will be used project and which are currently due
for ultimate disposal of residues result- and payable from the grantee (i.e., not
ing from such treatment (for example, including withheld or deferred
land for spray irrigation of sewage ef- amounts), subject to the limitations of
fluent). §§ 35.925–18, 35.930–5, 35.930–6, and 35.965
(b) Land acquired after December 26, (b) and (c), up to the grant amount set
1977, that will be used for storage of forth in the grant agreement and any
treated wastewater in land treatment amendments thereto. Payments for en-
systems before land application. gineering services for step 1, 2 or 3
486
shall be made in accordance with United States. Reasonable expenses in-

§ 35.937–10 and payments for step 3 con- curred by the grantee for the purpose
struction contracts shall be made in of securing such refunds, rebates, cred-
accordance with §§ 35.938–6 and 35.938–7. its, or other amounts shall be allow-
All allowable costs incurred before ini- able under the grant when approved by
tiation of construction of the project the Regional Administrator.
must be claimed in the application for (e) Final payment. After completion of
grant assistance for that project before final inspection under § 35.935–14, ap-
the award of the assistance or no sub- proval of the request for payment
sequent payment will be made for the which the grantee designates as the
costs. ‘‘final payment request,’’ and the
(a) Initial request for payment. Upon grantee’s compliance with all applica-
award of grant assistance, the grantee ble requirements of this subchapter
may request payment for the unpaid and the grant agreement, the Regional
Federal share of actual or estimated Administrator shall pay to the grantee
allowable project costs incurred before any balance of the Federal share of al-
grant award subject to the limitations lowable project costs which has not al-
of § 35.925–18. Payment for such costs ready been paid. The grantee must sub-
shall be made in accordance with the mit the final payment request prompt-
negotiated payment schedule included ly after final inspection.
in the grant agreement. (f) Assignment and release. By its ac-
(b) Interim requests for payment. The ceptance of final payment, the grantee
grantee may submit requests for pay- agrees to assign to the United States
ments for allowable costs in accord- the Federal share of refunds, rebates,
ance with the negotiated payment credits or other amounts (including
schedule included in the grant agree- any interest) properly allocable to
ment. Upon receipt of a request for costs for which the grantee has been
payment, subject to the limitations set paid by the Government under the
forth in § 30.615–3 of this subchapter and grant. The grantee thereby also re-
§§ 35.935–12, 35.935–13, and 35.935–16, the leases and discharges the United
Regional Administrator shall cause to States, its officers, agents, and employ-
be disbursed from available appro- ees from all liabilities, obligations, and
priated funds such amounts as are nec- claims arising out of the project work
essary so that the total amount of Fed- or under the grant, subject only to ex-
eral payments to the grantee for the ceptions previously specified in writing
project is equal to the Federal share of between the Regional Administrator
the actual or estimated allowable and the grantee.
project costs incurred to date, as cer- (g) Payment of costs incurred under the
tified by the grantee in its most recent Uniform Relocation Assistance and Real
request for payment. Generally, pay- Property Acquisition Policies Act. Not-
ments will be made within 20 days after withstanding the provisions of para-
receipt of a request for payment. graph (a) of this section, if the Re-
(c) Adjustment. At any time before gional Administrator determines it is
final payment under the grant, the Re- necessary for the expeditious comple-
gional Administrator may cause any tion of a project, he may make advance
request(s) for payment to be reviewed payment after grant award under
or audited. Based on such review or § 4.502(c) of this subchapter for the EPA
audit, any payment may be reduced for share of the cost of any payment of re-
prior overpayment or increased for location assistance by the grantee. The
prior underpayment. requirements in § 30.615–1 (b) and (d) of
(d) Refunds, rebates, credits, etc. The this subchapter apply to any advances
Federal share of any refunds, rebates, of funds for assistance payments.
credits, or other amounts (including [43 FR 44049, Sept. 27, 1978, as amended at 44
any interest) that accrue to or are re- FR 39340, July 5, 1979]
ceived by the grantee for the project,
and that are properly allocable to costs § 35.950 Suspension, termination or
for which the grantee has been paid annulment of grants.
under a grant, must be credited to the Grants may be suspended under
current State allotment or paid to the § 30.915, or terminated or annulled
487
§ 35.955 40 CFR Ch. I (7–1–00 Edition)
under § 30.920. The State agency shall (f) An injunction may be entered or
be concurrently notified in writing of other equitable relief afforded by a
any such action. court of appropriate jurisdiction;
(g) Such other administrative or judi-
§ 35.955 Grant amendments to increase cial action may be instituted if it is le-
grant amounts. gally available and appropriate.
Grant agreements may be amended
§ 35.970 Contract enforcement.
under § 30.900–1 of this chapter for
project changes which have been ap- (a) Regional Administrator authority.
proved under §§ 30.900 and 35.935–11 of At the request of a grantee, the Re-
this subchapter. However, no grant gional Administrator is authorized to
agreement may be amended to increase provide technical and legal assistance
the amount of a grant unless the State in the administration and enforcement
agency has approved the grant increase of any contract related to treatment
from available State allotments and works for which an EPA grant was
reallotments under § 35.915. made and to intervene in any civil ac-
tion involving the enforcement of such
§ 35.960 Disputes. contracts, including contract disputes
which are the subject of either arbitra-
(a) The Regional Administrator’s tion or court action. Any assistance is
final determination on the ineligibility to be provided at the discretion of the
of a project (see § 35.915(h)) or a grant Regional Administrator and in a man-
applicant (see § 35.920–1), on the Federal ner determined to best serve the public
share (see § 35.930–5(b)), or on any dis- interest. Factors which the Regional
pute arising under a grant shall be Administrator may consider in deter-
final and conclusive unless the appli- mining whether to provide assistance
cant or grantee appeals within 30 days are:
from the date of receipt of the final de- (1) Available agency resources.
termination. (See subpart J of part 30 (2) Planned or ongoing enforcement
of this subchapter.) action.
(b) The EPA General Counsel will (3) The grantee’s demonstration of
publish periodically as a Notice docu- good faith to resolve contract matters
ment in the FEDERAL REGISTER a digest at issue.
of grant appeals decisions. (4) The grantee’s adequate docu-
mentation.
§ 35.965 Enforcement. (5) The Federal interest in the con-
If the Regional Administrator deter- tract matters at issue.
mines that the grantee has failed to (b) Grantee request. The grantee’s re-
comply with any provision of this sub- quest for technical or legal assistance
part, he may impose any of the fol- should be submitted in writing and be
lowing sanctions: accompained by documentation ade-
quate to inform the Regional Adminis-
(a) The grant may be terminated or
trator of the nature and necessity of
annulled under § 30.920 of this sub-
the requested assistance. A grantee
chapter;
may orally request assistance from the
(b) Project costs directly related to Regional Administrator on an emer-
the noncompliance may be disallowed; gency basis.
(c) Payment otherwise due to the (c) Privity of contract. The Regional
grantee of up to 10 percent may be Administrator’s technical or legal in-
withheld (see § 30.615–3 of this chapter); volvement in any contract dispute will
(d) Project work may be suspended not make EPA a party to any contract
under § 30.915 of this subchapter; entered into by the grantee. (See
(e) A noncomplying grantee may be § 35.936–8.)
found nonresponsible or ineligible for (d) Delegation to States. The authority
future Federal assistance or a noncom- to provide technical and legal assist-
plying contractor may be found non- ance in the administration of contract
responsible or ineligible for approval matters described in this section may
for future contract award under EPA be delegated to a State agency under
grants; subpart F of this part if the State
488
Environmental Protection Agency Pt. 35, Subpt. E, App. A
agency can demonstrate that it has the termine which systems have cost-effective
appropriate legal authority to under- potential and which should be fully evalu-
take such functions. ated according to the cost-effectiveness anal-
ysis procedures established in the guidelines.
APPENDIX A TO SUBPART E—COST- d. Extent of effort. The extent of effort and
EFFECTIVENESS ANALYSIS GUIDELINES the level of sophistication used in the cost-
effectiveness analysis should reflect the
1. Purpose. These guidelines represent project’s size and importance. Where proc-
Agency policies and procedures for deter- esses or techniques are claimed to be innova-
mining the most cost-effective waste treat- tive technology on the basis of the cost re-
ment management system or component duction criterion contained in paragraph
part. 6e(1) of appendix E to this subpart, a suffi-
2. Authority. These guidelines are provided ciently detailed cost analysis shall be in-
under sections 212(2)(C) and 217 of the Clean cluded to substantiate the claim to the satis-
Water Act. faction of the Regional Administrator.
3. Applicability. These guidelines, except as 6. Cost-effectiveness analysis procedures.
otherwise noted, apply to all facilities plan-
a. Method of analysis. The resources costs
ning under step 1 grant assistance awarded
shall be determined by evaluating oppor-
after September 30, 1978. The guidelines also
tunity costs. For resources that can be ex-
apply to State or locally financed facilities
planning on which subsequent step 2 or step pressed in monetary terms, the analysis will
3 Federal grant assistance is based. use the interest (discount) rate established
4. Definitions. Terms used in these guide- in paragraph 6e. Monetary costs shall be cal-
lines are defined as follows: culated in terms of present worth values or
a. Waste treatment management system. Used equivalent annual values over the planning
synonymously with ‘‘complete waste treat- period defined in section 6b. The analysis
ment system’’ as defined in § 35.905 of this shall descriptively present nonmonetary fac-
subpart. tors (e.g., social and environmental) in order
b. Cost-effectiveness analysis. An analysis to determine their significance and impact.
performed to determine which waste treat- Nonmonetary factors include primary and
ment management system or component secondary environmental effects, implemen-
part will result in the minimum total re- tation capability, operability, performance
sources costs over time to meet Federal, reliability and flexibility. Although such fac-
State, or local requirements. tors as use and recovery of energy and scarce
c. Planning period. The period over which a resources and recycling of nutrients are to
waste treatment management system is be included in the monetary cost analysis,
evaluated for cost-effectiveness. The plan- the non-monetary evaluation shall also in-
ning period begins with the system’s initial clude them. The most cost-effective alter-
operation. native shall be the waste treatment manage-
d. Useful life. The estimated period of time ment system which the analysis determines
during which a treatment works or a compo- to have the lowest present worth or equiva-
nent of a waste treatment management sys- lent annual value unless nonmonetary costs
tem will be operated. are overriding. The most cost-effective alter-
e. Disaggregation. The process or result of native must also meet the minimum require-
breaking down a sum total of population or ments of applicable effluent limitations,
economic activity for a State or other juris- groundwater protection, or other applicable
diction (i.e., designated 208 area or SMSA) standards established under the Act.
into smaller areas or jurisdictions. b. Planning period. The planning period for
5. Identification, selection, and screening of
the cost-effectiveness analysis shall be 20
alternatives. a. Identification of alternatives.
years.
All feasible alternative waste management
systems shall be initially identified. These c. Elements of monetary costs. The monetary
alternatives should include systems dis- costs to be considered shall include the total
charging to receiving waters, land applica- value of the resources which are attributable
tion systems, on-site and other non-central- to the waste treatment management system
ized systems, including revenue generating or to one of its component parts. To deter-
applications, and systems employing the mine these values, all monies necessary for
reuse of wastewater and recycyling of pollut- capital construction costs and operation and
ants. In identifying alternatives, the appli- maintenance costs shall be identified.
cant shall consider the possibility of no ac- (1) Capital construction costs used in a
tion and staged development of the system. cost-effective analysis shall include all con-
b. Screening of alternatives. The identified tractors’ costs of construction including
alternatives shall be systematically screened overhead and profit, costs of land, reloca-
to determine those capable of meeting the tion, and right-of-way and easement acquisi-
applicable Federal, State and local criteria. tion; costs of design engineering, field explo-
c. Selection of alternatives. The identified al- ration and engineering services during con-
ternatives shall be initially analyzed to destruction; costs of administrative and legal
489
Pt. 35, Subpt. E, App. A 40 CFR Ch. I (7–1–00 Edition)
services including costs of bond sales; start- i=the interest rate (discount rate in section
up costs such as operator training; and inter- 6e).
est during construction. Capital construc-
(2) Where expenditures will not be uniform,
tion costs shall also include contingency al-
or when the construction period will be
lowances consistent with the cost estimate’s
greater than 4 years, interest during con-
level of precision and detail. struction shall be calculated on a year-by-
(2) The cost-effectiveness analysis shall in- year basis.
clude annual costs for operation and mainte- g. Useful life. (1) The treatment works’ use-
nance (including routine replacement of ful life for a cost-effectiveness analysis shall
equipment and equipment parts). These costs be as follows:
shall be adequate to ensure effective and de-
pendable operation during the system’s plan- Land—permanent.
ning period. Annual costs shall be divided be- Waste water conveyance structures (includes
tween fixed annual costs and costs which collection systems, outfall pipes, intercep-
would depend on the annual quantity of tors, force mains, tunnels, etc.)—50 years.
waste water collected and treated. Annual Other structures (includes plant building,
revenues generated by the waste treatment concrete process tankage, basins, lift sta-
management system through energy recov- tions structures, etc.)—30–50 years.
ery, crop production, or other outputs shall Process equipment—15–20 years.
be deducted from the annual costs for oper- Auxiliary equipment—10–15 years.
ation and maintenance in accordance with (2) Other useful life periods will be accept-
guidance issued by the Administrator. able when sufficient justification can be pro-
d. Prices. The applicant shall calculate the vided. Where a system or a component is for
various components of costs on the basis of interim service, the anticipated useful life
market prices prevailing at the time of the shall be reduced to the period for interim
cost-effectiveness analysis. The analysis service.
shall not allow for inflation of wages and h. Salvage value. (1) Land purchased for
prices, except those for land, as described in treatment works, including land used as part
paragraph 6h(1) and for natural gas. This of the treatment process or for ultimate dis-
stipulation is based on the implied assump- posal of residues, may be assumed to have a
tion that prices, other than the exceptions, salvage value at the end of the planning pe-
for resources involved in treatment works riod at least equal to its prevailing market
construction and operation, will tend to value at the time of the analysis. In calcu-
change over time by approximately the same lating the salvage value of land, the land
percentage. Changes in the general level of value shall be appreciated at a compound
prices will not affect the results of the cost- rate of 3 percent annually over the planning
effectiveness analysis. Natural gas prices period, unless the Regional Administrator
shall be escalated at a compound rate of 4 determines that the grantee has justified the
percent annually over the planning period, use of a greater or lesser percentage based
unless the Regional Administrator deter- upon historical differences between local
mines that the grantee has justified use of a land cost escalation and construction cost
greater or lesser percentage based upon re- escalation. The land cost escalation rate
gional differentials between historical nat- may be updated periodically in accordance
ural gas price escalation and construction with Agency guidelines. Right-of-way ease-
cost escalation. Land prices shall be appre- ments shall be considered to have a salvage
ciated as provided in paragraph 6h(1). Both value not greater than the prevailing market
historical data and future projections sup- value at the time of the analysis.
port the gas and land price escalations rel- (2) Structures will be assumed to have a
ative to those for other goods and services salvage value if there is a use for them at the
related to waste water treatment. Price es- end of the planning period. In this case, sal-
calation rates may be updated periodically vage value shall be estimated using straight
in accordance with Agency guidelines. line depreciation during the useful life of the
e. Interest (discount) rate. The rate which treatment works.
the Water Resources Council establishes an- (3) The method used in paragraph 6h(2)
nually for evaluation of water resource may be used to estimate salvage value at the
projects shall be used. end of the planning period for phased addi-
f. Interest during construction. (1) Where tions of process equipment and auxiliary
capital expenditures can be expected to be equipment.
fairly uniform during the construction pe- (4) When the anticipated useful life of a fa-
riod, interest during construction may be cility is less than 20 years (for analysis of in-
calculated at I=1/2PCi where: terim facilities), salvage value can be
claimed for equipment if it can be clearly
I=the interest accrued during the construc- demonstrated that a specific market or reuse
tion period, opportunity will exist.
P=the construction period in years, 7. Innovative and alternative wastewater
C=the total capital expenditures, treatment processes and techniques.
490
a. Beginning October 1, 1978, the capital State projections and disaggregations may
costs of publicly owned treatment works be updated periodically in accordance with
which use processes and techniques meeting Agency guidelines.
the criteria of appendix E to this subpart and (2) Each State, working with designated
which have only a water pollution control 208 planning agencies, organizations certified
function, may be eligible if the present by the Governor under section 174(a) of the
worth cost of the treatment works is not Clean Air Act, as amended, and other re-
more than 115 percent of the present worth gional planning agencies in the State’s non-
cost of the most cost-effective pollution con- designated areas, shall disaggregate the
trol system, exclusive of collection sewers State population projection among its des-
and interceptors common to the two systems ignated 208 areas, other standard metropoli-
being compared, by 115 percent, except for tan statistical areas (SMSA’s) not included
the following situation. in the 208 area, and non-SMSA counties or
b. Where innovative or alternative unit other appropriate jurisdictions. States that
processes would serve in lieu of conventional had enacted laws, as of June 26, 1978, man-
unit processes in a conventional waste water dating disaggregation of State population to-
treatment plant, and the present worth costs tals to each county for areawide 208 planning
of the nonconventional unit processes are may retain this requirement. When
less than 50 percent of the present worth disaggregating the State population total,
costs of the treatment plant, multiply the the State shall take into account the pro-
present worth costs of the replaced conven-
jected population and economic activities
tional processes by 115 percent, and add the
identified in facility plans, areawide 208
cost of nonreplaced unit processes.
plans and municipal master plans. The sum
c. The eligibility of multipurpose projects
of the disaggregated projections shall not ex-
which combine a water pollution control
ceed the State projection. Where a des-
function with another function, and which
ignated 208 area has, as of June 26, 1978, al-
use processes and techniques meeting the
ready prepared a population projection, it
criteria of appendix E to this subpart, shall
may be used if the year 2000 population does
be determined in accordance with guidance
issued by the Administrator. not exceed that of the disaggregated projec-
d. The above provisions exclude individual tion by more than 10 percent. The State may
systems under § 35.918. The regional Adminis- then increase its population projection to in-
trator may allow a grantee to apply the 15- clude all such variances rather than lower
percent preference authorized by this section the population projection totals for the
to facility plans prepared under step 1 grant other areas. If the 208 area population fore-
assistance awarded before October 1, 1978. cast exceeds the 10 percent allowance, the 208
8. Cost-effective staging and sizing of treat- agency must lower its projection within the
ment works. allowance and submit the revised projection
a. Population projections. (1) The for approval to the State and the Regional
disaggregation of State projections of popu- Administrator.
lation shall be the basis for the population (3) The State projection totals and the
forecasts presented in individual facility disaggregations will be submitted as an out-
plans, except as noted. These State projec- put of the statewide water quality manage-
tions shall be those developed in 1977 by the ment process. The submission shall include a
Bureau of Economic Analysis (BEA), Depart- list of designated 208 areas, all SMSA’s, and
ment of Commerce, unless, as of June 26, counties or other units outside the 208 areas.
1978, the State has already prepared projec- For each unit the disaggregated population
tions. These State projections may be used shall be shown for the years 1980, 1990, and
instead of the BEA projections if the year 2000. Each State will submit its projection
2000 State population does not exceed that of totals and disaggregations for the Regional
the BEA projection by more than 5 percent. Administrator’s approval before October 1,
If the difference exceeds this amount, the 1979. Before this submission, the State shall
State must either justify or lower its projec- hold a public meeting on the disaggregations
tion. Justification must be based on the his- and shall provide public notice of the meet-
torical and current trends (e.g., energy and ing consistent with part 25 of this chapter.
industrial development, military base open- (See § 35.917(e).)
ings) not taken into account in the BEA pro- (4) When the State projection totals and
jections. The State must submit for approval disaggregations are approved they shall be
to the Administrator the request and jus- used thereafter for areawide water quality
tification for use of State projections higher management planning as well as for facility
than the BEA projections. By that time, the planning and the needs surveys under section
State shall issue a public notice of the re- 516(b) of the Act. Within areawide 208 plan-
quest. Before the Administrator’s approval ning areas, the designated agencies, in con-
of the State projection, the Regional Admin- sultation with the States, shall disaggregate
istrator shall solicit public comments and the 208 area projections among the SMSA
hold a public hearing if important issues are and non-SMSA areas and then disaggregate
raised about the State projection’s validity. these SMSA and non-SMSA projections
491
among the facility planning areas and the resumption and losses or on records of waste-
maining areas. For those SMSA’s not in- water flows for extended dry periods less es-
cluded within designated 208 planning areas, timated dry weather infiltration. Future
each State, with assistance from appropriate flows for the treatment works design should
regional planning agencies, shall be estimated by determining the existing per
disaggregate the SMSA projection among capita flows based on existing sewered resi-
the facility planning areas and the remain- dent population and multiplying this figure
ing areas within the SMSA. The State shall by the future projected population to be
check the facility planning area forecasts to served. Seasonal population can be converted
ensure reasonableness and consistency with to equivalent full time residents using the
the SMSA projections. following multipliers:
(5) For non-SMSA facility planning areas Day-use visitor......................................0.1–0.2
not included in designated areawide 208 Seasonal visitor ....................................0.5–0.8
areas, the State may disaggregate popu- The preferred method shall be used wherever
lation projections for non-SMSA counties water supply records or wastewater flow
among facility planning areas and remaining data exist. Allowances for future increases of
areas. Otherwise, the grantee is to forecast per capita flow over time will not be ap-
future population growth for the facility proved.
planning area by linear extrapolation of the (b) Optional method. Where water supply
recent past (1960 to present) population and wastewater flow data are lacking, exist-
trends for the planning area, use of correla- ing and future ADBF shall be estimated by
tions of planning area growth with popu- multiplying a gallon per capita per day
lation growth for the township, county or (gpcd) allowance not exceeding those in the
other larger parent area population, or an- following table, except as noted below, by
other appropriate method. A population fore- the estimated total of the existing and fu-
cast may be raised above that indicated by ture resident populations to be served. The
the extension of past trends where likely im- tabulated ADBF allowances, based upon sev-
pacts (e.g., significant new energy develop- eral studies of municipal water use, include
ments, large new industries, Federal instal- estimates for commercial and institutional
lations, or institutions) justify the dif- sources as well as residential sources. The
ference. The facilities plan must document Regional Administrator may approve excep-
the justification. These population forecasts tions to the tabulated allowances where
should be based on estimates of new employ- large (more than 25 percent of total esti-
ment to be generated. The State shall check mated ADBF) commercial and institutional
individual population forecasts to insure flows are documented.
consistency with overall projections for non-
SMSA counties and justification for any dif- Gallons per
ference from past trends. Description capita per
day
(6) Facilities plans prepared under step 1
grant assistance awarded later than 6 Non-SMSA cities and towns with projected
months after Agency approval of the State total 10-year populations of 5,000 or less ..... 60–70
disaggregations shall follow population fore- Other cities and towns ....................................... 65–80
casts developed in accordance with these
guidelines. c. Flow reduction. The cost-effectiveness
b. Wastewater flow estimates. (1) In deter- analysis for each facility planning area shall
mining total average daily flow for the de- include an evaluation of the costs, cost sav-
sign of treatment works, the flows to be con- ings, and effects of flow reduction measures
sidered include the average daily base flows unless the existing ADBF from the area is
(ADBF) expected from residential sources, less than 70 gpcd, or the current population
commercial sources, institutional sources, of the applicant municipality is under 10,000,
and industries the works will serve plus al- or the Regional Administrator exempts the
lowances for future industries and nonexces- area for having an effective existing flow re-
sive infiltration/inflow. The amount of non- duction program. Flow reduction measures
excessive infiltration/inflow not included in include public education, pricing and regu-
the base flow estimates presented herein, is latory approaches or a combination of these.
to be determined according to the Agency In preparing the facilities plan and included
guidance for sewer system evaluation or cost effectiveness analysis, the grantee shall,
Agency policy on treatment and control of as a minimum:
combined sewer overflows (PRM 75–34). (1) Estimate the flow reductions
(2) The estimation of existing and future implementable and cost effective when the
ADBF, exclusive of flow reduction from com- treatment works become operational and
bined residential, commercial and institu- after 10 and 20 years of operation. The meas-
tional sources, shall be based upon one of the ures to be evaluated shall include a public
following methods: information program; pricing and regulatory
(a) Preferred method. Existing ADBF is esti- approaches; installation of water meters, and
mated based upon a fully documented anal- retrofit of toilet dams and low-flow
ysis of water use records adjusted for con- showerheads for existing homes and other
492
habitations; and specific changes in local or- for such industrial growth. This additional
dinances, building codes or plumbing codes allowance for future unplanned industrial
requiring installations of water saving de- flow shall not exceed 5 percent (or 10 percent
vices such as water meters, water conserving for towns with less than 10,000 population) of
toilets, showerheads, lavatory faucets, and the total design flow of the treatment works
appliances in new homes, motels, hotels, in- exclusive of the allowance or 25 percent of
stitutions, and other establishments. the total industrial flow (existing plus docu-
(2) Estimate the costs of the proposed flow mented future), whichever is greater.
reduction measures over the 20-year plan- e. Staging of treatment plants. (1) The capac-
ning period, including costs of public infor- ity of treatment plants (i.e., new plants, up-
mation, administration, retrofit of existing graded plants, or expanded plants) to be
buildings and the incremental costs, if any, funded under the construction grants pro-
of installing water conserving devices in new gram shall not exceed that necessary for
homes and establishments. wastewater flows projected during an initial
(3) Estimate the energy reductions; total staging period determined by one of the fol-
cost savings for wastewater treatment, lowing methods:
water supply and energy use; and the net (a) First method. The grantee shall analyze
cost savings (total savings minus total costs) at least three alternative staging periods (10
attributable to the proposed flow reduction years, 15 years, and 20 years). He shall select
measures over the planning period. The esti- the least costly (i.e., total present worth or
mated cost savings shall reflect reduced sizes average annual cost) staging period.
of proposed wastewater treatment works (b) Second method. The staging period shall
plus reduced costs of future water supply fa- not exceed the period which is appropriate
cility expansions. according to the following table.
(4) Develop and provide for implementing a
recommended flow reduction program. This STAGING PERIODS FOR TREATMENT PLANTS
shall include a public information program
highlighting effective flow reduction meas- Staging
Flow growth factors (20 years) 1 period 2
ures, their costs, and the savings of water (years)
and costs for a typical household and for the
community. In addition, the recommended Less than 1.3 ....................................................... 20
program shall comprise those flow reduction 1.3 to 1.8 ............................................................. 15
measures which are cost effective, supported Greater than 1.8 .................................................. 10
by the public and within the implementation 1 Ratio of wastewater flow expected at end of 20 year plan-
authority of the grantee or another entity ning period to initial flow at the time the plant is expected to
willing to cooperate with the grantee. become operational.
2 Maximum initial staging period.
(5) Take into account in the design of the
treatment works the flow reduction esti- (2) A municipality may stage the construc-
mated for the recommended program. tion of a treatment plant for a shorter period
d. Industrial flows. (1) The treatment than the maximum allowed under this pol-
works’ total design flow capacity may in- icy. A shorter staging period might be based
clude allowances for industrial flows. The al- upon environmental factors (secondary im-
lowances may include capacity needed for in- pacts, compliance with other environmental
dustrial flows which the existing treatment laws under § 35.925–14, energy conservation,
works presently serves. However, these flows water supply), an objective concerning
shall be carefully reviewed and means of re- planned modular construction, the utiliza-
ducing them shall be considered. Letters of tion of temporary treatment plants, or at-
intent to the grantee are required to docu- tainment of consistency with locally adopted
ment capacity needs for existing flows from plans including comprehensive and capital
significant industrial users and for future improvement plans. However, the staging pe-
flows from all industries intending to in- riod in no case may be less than 10 years, be-
crease their flows or relocate in the area. Re- cause of associated cost penalties and the
quirements for letters of intent from signifi- time necessary to plan, apply for and receive
cant industrial dischargers are set forth in funding, and construct later stages.
§ 35.925–11(c). (3) The facilities plan shall present the de-
(2) While many uncertainties accompany sign parameters for the proposed treatment
forecasting future industrial flows, there is plant. Whenever the proposed treatment
still a need to allow for some unplanned fu- plant components’ size or capacity would ex-
ture industrial growth. Thus, the cost-effec- ceed the minimum reliability requirements
tive (grant eligible) design capacity and flow suggested in the EPA technical bulletin,
of the treatment works may include (in addi- ‘‘Design Criteria for Mechanical, Electric,
tion to the existing industrial flows and fu- and Fluid System and Component Reli-
ture industrial flows documented by letters ability,’’ a complete justification, including
of intent) a nominal flow allowance for fu- supporting data, shall be provided to the Re-
ture nonidentifiable industries or for un- gional Administrator for his approval.
planned industrial expansions, provided that f. Staging of interceptors. Since the location
208 plans, land use plans and zoning provide and length of interceptors will influence
493
growth, interceptor routes and staging of (iii) Effects on air quality and environ-
construction shall be planned carefully. mentally sensitive areas by cultural
They shall be consistent with approved 208 changes.
plans, growth management plans and other (3) The estimation of peak flows in inter-
environmental laws under § 35.925–14 and ceptors shall be based upon the following
shall also be consistent with Executive or- considerations:
ders for flood plains and wetlands. (a) Daily and seasonal variations of pipe
(1) Interceptors may be allowable for con- flows, the timing of flows from the various
struction grant funding if they eliminate ex- parts of the tributary area, and pipe storage
isting point source discharges and accommo- effects.
date flows from existing habitations that (b) The feasibility of off-pipe storage to re-
violate an enforceable requirement of the duce peak flows.
Act. Unless necessary to meet those objec- (c) The use of an appropriate peak flow fac-
tives, interceptors should not be extended tor that decreases as the average daily flow
into environmentally sensitive areas, prime to be conveyed increases.
agricultural lands and other undeveloped 9. State guidelines. If a State has developed
areas (density less than one household per 2 or chooses to develop comprehensive guide-
acres). Where extension of an interceptor lines on cost-effective sizing and staging of
through such areas would be necessary to treatment works, the Regional Adminis-
interconnect two or more communities, the trator may approve all or portions of the
grantee shall reassess the need for the inter- State guidance for application to step 1 facil-
ceptor by further consideration of alter- ity plans. Approved State guidance may be
native wastewater treatment systems. If the used instead of corresponding portions of
reassessment demonstrates a need for the in- these guidelines, if the following conditions
terceptor, the grantee shall evaluate the are met:
interceptor’s primary and secondary envi- a. The State guidance must be at least as
ronmental impacts, and provide for appro- stringent as the provisions of these guide-
priate mitigating measures such as rerouting lines.
the pipe to minimize adverse impacts or re- b. The State must have held at least one
stricting future connections to the pipe. Ap- public hearing on proposed State guidance,
propriate and effective grant conditions under regulations in part 25 of this chapter,
(e.g., restricting sewer hookups) should be before submitting the guidance for Agency
used where necessary to protect environ- approval.
mentally sensitive areas or prime agricul- 10. Additional capacity beyond the cost-effec-
tural lands from new development. NPDES tive capacity. Treatment works which propose
permits shall include the conditions to in- to include additional capacity beyond the
sure implementation of the mitigating meas- cost-effective capacity determined in accord-
ures when new permits are issued to the af- ance with these guidelines may receive Fed-
fected treatment facilities in those cases eral grant assistance if the following require-
where the measures are required to protect ments are met:
the treatment facilities against overloading. a. The facilities plan shall determine the
(2) Interceptor pipe sizes (diameters for cy- most cost-effective treatment works and its
lindrical pipes) allowable for construction associated capacity in accordance with these
grant funding shall be based on a staging pe- guidelines. The facilities plan shall also de-
riod of 20 years. A larger pipe size cor- termine the actual characteristics and total
responding to a longer staging period not to capacity of the treatment works to be built.
exceed 40 years may be allowed if the grantee b. Only a portion of the cost of the entire
can demonstrate, wherever water quality proposed treatment works including the ad-
management plans or other plans developed ditional capacity shall be eligible for Federal
for compliance with laws under § 35.925–14 funding. The portion of the cost of construc-
have been approved, that the larger pipe tion which shall be eligible for Federal fund-
would be consistent with projected land use ing under sections 203(a) and 202(a) of the Act
patterns in such plans and that the larger shall be equivalent to the estimated con-
pipe would reduce overall (primary plus sec- struction costs of the most cost-effective
ondary) environmental impacts. These envi- treatment works. For the eligibility deter-
ronmental impacts include: mination, the costs of construction of the ac-
(a) Primary impacts. (i) Short-term disrup- tual treatment works and the most cost-ef-
tion of traffic, business and other daily ac- fective treatment works must be estimated
tivities. on a consistent basis. Up-to-date cost curves
(ii) Destruction of flora and fauna, noise, published by EPA’s Office of Water Program
erosion, and sedimentation. Operations or other cost estimating guidance
(b) Secondary impacts. (i) Pressure to rezone shall be used to determine the cost ratios be-
or otherwise facilitate unplanned develop- tween cost-effective project components and
ment. those of the actual project. These cost ratios
(ii) Pressure to accelerate growth for shall be multiplied by the step 2 cost and
quicker recovery of the non-Federal share of step 3 contract costs of actual components to
the interceptor investments. determine the eligible step 2 and step 3 costs.
494
Environmental Protection Agency Pt. 35, Subpt. E, App. B
c. The actual treatment works to be built spect to user charges is to distribute the cost
shall be assessed. It must be determined that of operation and maintenance of publicly
the actual treatment works meets the re- owned treatment works to the pollutant
quirements of the National Environmental source and to promote self-sufficiency of
Policy Act and all applicable laws, regula- treatment works with respect to operation
tions, and guidance, as required of all treat- and maintenance costs. The 1977 Amend-
ment works by §§ 35.925–8 and 35.925–14. Par- ments amended section 204(b) to allow grant-
ticular attention should be given to assess- ees to establish user charge systems based on
ing the project’s potential secondary envi- ad valorem taxes. This appendix does not
ronmental effects and to ensuring that air apply to ad valorem user charge systems.
quality standards will not be violated. The (d) Definitions—(1) Replacement. Expendi-
actual treatment works’ discharge must not tures for obtaining and installing equipment,
cause violations of water quality standards. accessories, or appurtenances which are nec-
d. The Regional Administrator shall ap- essary to maintain the capacity and per-
prove the plans, specifications, and esti- formance during the service life of the treat-
mates for the actual treatment works under ment works for which such works were de-
section 203(a) of the Act, even though EPA signed and constructed. The term ‘‘operation
will be funding only a portion of its designed and maintenance’’ includes replacement.
capacity. (2) User charge. A charge levied on users of
e. The grantee shall satisfactorily assure treatment works for the cost of operation
the Agency that the funds for the construc- and maintenance of such works.
tion costs due to the addtional capacity be-
(e) Classes of users. At least two basic types
yond the cost-effective treatment works’ ca-
of user charge systems are common. The
pacity as determined by EPA (i.e., the ineli-
first is to charge each user a share of the
gible portion of the treatment works), as
treatment works operation and maintenance
well as the local share of the grant eligible
costs based on his estimate of measured pro-
portion of the construction costs will be
portional contribution to the total treat-
available.
f. The grantee shall execute appropriate ment works loading. The second system es-
grant conditions or releases providing that tablishes classes for users having similar
the Federal Government is protected from flows and waste water characteristics; i.e.,
any further claim by the grantee, the State, levels of biochemical oxygen demand, sus-
or any other party for any of the costs of pended solids, etc. Each class is then as-
construction due to the additional capacity. signed its share of the waste treatment
g. Industrial cost recovery shall be based works operation and maintenance costs
upon the portion of the Federal grant allo- based on the proportional contribution of the
cable to the treatment of industrial wastes. class to the total treatment works loading.
h. The grantee must implement a user Either system is in compliance with these
charge system which applies to the entire guidelines.
service area of the grantee, including any (f) Criteria against which to determine the
area served by the additional capacity. adequacy of user charges. The user charge sys-
tem shall be approved by the Regional Ad-
APPENDIX B TO SUBPART E—FEDERAL ministrator and shall be maintained by the
GUIDELINES—USER CHARGES FOR grantee in accordance with the following re-
OPERATION AND MAINTENANCE OF quirements:
(1) The user charge system must result in
PUBLICLY OWNED TREATMENT
the distribution of the cost of operation and
WORKS maintenance of treatment works within the
(a) Purpose. To set forth advisory informa- grantee’s jurisdiction to each user (or user
tion concerning user charges based on actual class) in proportion to such user’s contribu-
use pursuant to section 204 of the Clean tion to the total wastewater loading of the
Water Act, hereinafter referred to as the treatment works. Factors such as strength,
Act. Applicable requirements are set forth in volume, and delivery flow rate characteris-
subpart E (40 CFR part 35). tics shall be considered and included as the
(b) Authority. The authority for establish- basis for the user’s contribution to ensure a
ment of the user charge guidelines is con- proportional distribution of operation and
tained in section 204(b)(2) of the Act. maintenance costs to each user (or user
(c) Background. Section 204(b)(1) of the Act class).
provides that after March 1, 1973, Federal (2) For the first year of operation, oper-
grant applicants shall be awarded grants ation and maintenance costs shall be based
only after the Regional Administrator has upon past experience for existing treatment
determined that the applicant has adopted or works or some other rational method that
will adopt a system of charges to assure that can be demonstrated to be applicable.
each recipient of waste treatment services (3) The grantee shall review user charges
will pay its proportionate share of the costs annually and revise them periodically to re-
of operation and maintenance, including reflect actual treatment works operation and
placement. The intent of the Act with re- maintenance costs.
495
Pt. 35, Subpt. E, App. C–1 40 CFR Ch. I (7–1–00 Edition)
(4) The user charge system must generate mately equal, then user charges can be de-
sufficient revenue to offset the cost of all veloped on a volume basis in accordance with
treatment works operation and maintenance the model below:
provided by the grantee.
(5) The user charge system must be incor- Cu = CT/VT(Vu)
porated in one or more municipal legislative (2) Model No. 2.—When BOD, suspended sol-
enactments or other appropriate authority. ids, or other pollutant concentrations from a
If the project is a regional treatment works user exceed the range of concentration of
accepting wastewaters from treatment these pollutants in normal domestic sewage,
works owned by others, then the subscribers a surcharge added to a base charge, cal-
receiving waste treatment services from the culated by means of Model No. 1, can be lev-
grantee shall have adopted user charge sys- ied. The surcharge can be computed by the
tems in accordance with these guidelines. model below:
Such user charge systems shall also be incor-
porated in the appropriate municipal legisla- Cs = [Bc(B)=Sc(S)=Pc(P)]Vu
tive enactments or other appropriate author-
ity. (3) Model No. 3.—This model is commonly
(g) Model user charge systems. The user called the ‘‘quantity/quality formula’’:
charge system adopted by the applicant Cu = Vc Vu=Bc Bu=Sc Su=Pc Pu
must result in the distribution of treatment
works operation and maintenance costs to (h) Other considerations.—(1) Quantity dis-
each user (or user class) in approximate pro- counts to large volume users will not be ac-
portion to his contribution to the total ceptable. Savings resulting from economies
wastewater loading of the treatment works. of scale should be apportioned to all users or
The following user charge models can be user classes.
used for this purpose; however, the applicant (2) User charges may be established based
is not limited to their use. The symbols used on a percentage of the charge for water
in the models are as defined below: usage only in cases where the water charge
is based on a constant cost per unit of con-
CT = Total operation and maintenance (O. & sumption.
M.) costs per unit of time.
Cu = A user’s charge for O. & M. per unit of [39 FR 5270, Feb. 11, 1974]
time.
Cs = A surcharge for wastewaters of exces- APPENDIX C–1 TO SUBPART E—REQUIRED
sive strength. PROVISIONS—CONSULTING ENGINEER-
Vc = O&M cost for transportation and treat- ING AGREEMENTS
ment of a unit of wastewater volume.
Vu = Volume contribution from a user per 1. General
unit of time. 2. Responsibility of the Engineer
VT = Total volume contribution from all 3. Scope of Work
users per unit of time. 4. Changes
Bc = O&M cost for treatment of a unit of bio- 5. Termination
chemical oxygen demand (BOD). 6. Remedies
Bu = Total BOD contribution from a user per 7. Payment
unit of time. 8. Project Design
BT = Total BOD contribution from all users 9. Audit; Access to Records
per unit of time. 10. Price Reduction for Defective Cost or
B = Concentration of BOD from a user above Pricing Data
a base level. 11. Subcontracts
Sc = O&M cost for treatment of a unit of sus- 12. Labor Standards
pended solids. 13. Equal Employment Opportunity
Su = Total suspended solids contribution 14. Utilization of Small or Minority Business
from a user per unit of time. 15. Covenant Against Contingent Fees
S = Concentration of SS from a user above a 16. Gratuities
base level. 17. Patents
Pc = O&M cost for treatment of a unit of any 18. Copyrights and Rights in Data
pollutant.
Pu = Total contribution of any pollutant 1. GENERAL
from a user per unit of time. (a) The owner and the engineer agree that
PT = Total contribution of any pollutant
the following provisions apply to the EPA
from all users per unit of time.
grant-eligible work to be performed under
P = Concentration of any pollutant from a
this agreement and that such provisions su-
user above a base level.
persede any conflicting provisions of this
(1) Model No. 1. If the treatment works is agreement.
primarily flow dependent or if the BOD, sus- (b) The work under this agreement is fund-
pended solids, and other pollutant concentra- ed in part by a grant from the U.S. Environ-
tions discharged by all users are approxi- mental Protection Agency. Neither the
496
Environmental Protection Agency Pt. 35, Subpt. E, App. C–1
United States nor the U.S. Environmental 3. SCOPE OF WORK
Protection Agency (hereinafter, ‘‘EPA’’) is a
The services to be performed by the engi-
party to this agreement. This agreement
neer shall include all services required to
which covers grant-eligible work is subject complete the task or Step in accordance
to regulations contained in 40 CFR 35.936, with applicable EPA regulations (40 CFR
35.937, and 35.939 in effect on the date of exe- part 35, subpart E in effect on the date of
cution of this agreement. As used in these execution of this agreement) to the extent of
clauses, the words ‘‘the date of execution of the scope of work as defined and set out in
this agreement’’ mean the date of execution the engineering services agreement to which
of this agreement and any subsequent modi- these provisions are attached.
fication of the terms, compensation or scope
of services pertinent to unperformed work. 4. CHANGES
(c) The owner’s rights and remedies pro- (a) The owner may, at any time, by written
vided in these clauses are in addition to any order, make changes within the general
other rights and remedies provided by law or scope of this agreement in the services or
this agreement. work to be performed. If such changes cause
an increase or decrease in the engineer’s cost
2. RESPONSIBILITY OF THE ENGINEER of, or time required for, performance of any
(a) The engineer shall be responsible for services under this agreement, whether or
the professional quality, technical accuracy, not changed by any order, an equitable ad-
justment shall be made and this agreement
timely completion, and the coordination of
shall be modified in writing accordingly. The
all designs, drawings, specifications, reports,
engineer must assert any claim for adjust-
and other services furnished by the engineer
ment under this clause in writing within 30
under this agreement. The engineer shall, days from the date of receipt by the engineer
without additional compensation, correct or of the notification of change, unless the
revise any errors, omissions, or other defi- owner grants a further period of time before
ciencies in his designs, drawings, specifica- the date of final payment under this agree-
tions, reports, and other services. ment.
(b) The engineer shall perform such profes- (b) No services for which an additional
sional services as may be necessary to ac- compensation will be charged by the engi-
complish the work required to be performed neer shall be furnished without the written
under this agreement, in accordance with authorization of the owner.
this agreement and applicable EPA require- (c) In the event that there is a modifica-
ments in effect on the date of execution of tion of EPA requirements relating to the
this agreement. services to be performed under this agree-
(c) The owner’s or EPA’s approval of draw- ment after the date of execution of this
ings, designs, specifications, reports, and in- agreement, the increased or decreased cost
cidental engineering work or materials fur- of performance of the services provided for in
nished hereunder shall not in any way re- this agreement shall be reflected in an ap-
lieve the engineer of responsibility for the propriate modification of this agreement.
technical adequacy of his work. Neither the 5. TERMINATION
owner’s nor EPA’s review, approval or ac-
ceptance of, nor payment for, any of the (a) Either party may terminate this agree-
services shall be construed to operate as a ment, in whole or in part, in writing, if the
waiver of any rights under this agreement or other party substantially fails to fulfill its
of any cause of action arising out of the per- obligations under this agreement through no
formance of this agreement. fault of the terminating party. However, no
such termination may be affected unless the
(d) The engineer shall be and shall remain
other party is given (1) not less than ten (10)
liable, in accordance with applicable law, for
calendar days written notice (delivered by
all damages to the owner or EPA caused by
certified mail, return receipt requested) of
the engineer’s negligent performance of any intent to terminate and (2) an opportunity
of the services furnished under this agree- for consultation with the terminating party
ment, except for errors, omissions or other before termination.
deficiencies to the extent attributable to the (b) The owner may terminate this agree-
owner, owner-furnished data or any third ment, in whole or in part, in writing, for its
party. The engineer shall not be responsible convenience, if the termination is for good
for any time delays in the project caused by cause (such as for legal or financial reasons,
circumstances beyond the engineeer’s con- major changes in the work or program re-
trol. Where innovative processes or tech- quirements, initiation of a new step) and the
niques (see 40 CFR 35.908) are recommended engineer is given (1) not less than ten (10)
by the engineer and are used, the engineer calendar days written notice (delivered by
shall be liable only for gross negligence to certified mail, return receipt requested) of
the extent of such use. intent to terminate, and (2) an opportunity
497
for consultation with the terminating party 7. PAYMENT
before termination.
(a) Payment shall be made in accordance
(c) If the owner terminates for default, an
with the payment schedule incorporated in
equitable adjustment in the price provided this agreement as soon as practicable upon
for in this agreement shall be made, but (1) submission of statements requesting pay-
no amount shall be allowed for anticipated ment by the engineer to the owner. If no
profit on unperformed services or other such payment schedule is incorporated in
work, and (2) any payment due to the engi- this agreement, the payment provisions of
neer at the time of termination may be ad- paragraph (b) of this clause shall apply.
justed to the extent of any additional costs (b) The engineer may request monthly
the owner incurs because of the engineer’s progress payments and the owner shall make
default. If the engineer terminates for de- them as soon as practicable upon submission
fault or if the owner terminates for conven- of statements requesting payment by the en-
ience, the equitable adjustment shall include gineer to the owner. When such progress pay-
a reasonable profit for services or other work ments are made, the owner may withhold up
performed. The equitable adjustment for any to ten (10) percent of the vouchered amount
termination shall provide for payment to the until satisfactory completion by the engi-
engineer for services rendered and expenses neer of work and services within a step
incurred before the termination, in addition called for under this agreement. When the
to termination settlement costs the engineer owner determines that the work under this
reasonably incurs relating to commitments agreement or any specified task hereunder is
which had become firm before the termi- substantially complete and that the amount
of retained percentages is in excess of the
nation.
amount considered by him to be adequate for
(d) Upon receipt of a termination action
his protection, he shall release to the engi-
under paragraph (a) or (b) of this section 5., neer such excess amount.
the engineer shall (1) promptly discontinue (c) No payment request made under para-
all services affected (unless the notice di- graph (a) or (b) of this clause shall exceed
rects otherwise), and (2) deliver or otherwise the estimated amount and value of the work
make available to the owner all data, draw- and services performed by the engineer under
ings, specifications, reports, estimates, sum- this agreement. The engineer shall prepare
maries, and such other information and ma- the estimates of work performed and shall
terials as the engineer may have accumu- supplement them with such supporting data
lated in performing this agreement, whether as the owner may require.
completed or in process. (d) Upon satisfactory completion of the
(e) Upon termination under paragraph (a) work performed under this agreement, as a
or (b) of this section 5., the owner may take condition precedent to final payment under
over the work and prosecute the same to this agreement or to settlement upon termi-
completion by agreement with another party nation of the agreement, the engineer shall
or otherwise. Any work the owner takes over execute and deliver to the owner a release of
for completion will be completed at the own- all claims against the owner arising under or
er’s risk, and the owner will hold harmless by virtue of this agreement, other than such
the engineer from all claims and damages claims, if any, as may be specifically ex-
arising out of improper use of the engineer’s empted by the engineer from the operation
work. of the release in stated amounts to be set
forth therein.
(f) If, after termination for failure of the
engineer to fulfill contractual obligations, it 8. PROJECT DESIGN
is determined that the engineer had not so
failed, the termination shall be deemed to (a) In the performance of this agreement,
have been effected for the convenience of the the engineer shall, to the extent practicable,
owner. In such event, adjustment of the price provide for maximum use of structures, ma-
provided for in this agreement shall be made chines, products, materials, construction
as paragraph (c) of this clause provides. methods, and equipment which are readily
available through competitive procurement,
6. REMEDIES or through standard or proven production
techniques, methods, and processes, con-
Except as this agreement otherwise pro- sistent with 40 CFR 35.936–3 and 35.936–13 in
vides, all claims, counter-claims, disputes, effect on the date of execution of this agree-
and other matters in question between the ment, except to the extent to which innova-
owner and the engineer arising out of or re- tive technology may be used under 40 CFR
lating to this agreement or the breach of it 35.908 in effect on the date of execution of
will be decided by arbitration if the parties this agreement.
hereto mutually agree, or in a court of com- (b) The engineer shall not, in the perform-
petent jurisdiction within the State in which ance of the work under this agreement,
the owner is located. produce a design or specification which
498
would require the use of structures, ma- contracts and all tier subcontracts directly
chines, products, materials, construction related to project performance that are in
methods, equipment, or processes which the excess of $10,000.
engineer knows to be available only from a (c) Audits conducted under this provision
sole source, unless the engineer has ade- shall be in accordance with generally accept-
quately justified the use of a sole source in ed auditing standards and established proce-
writing. dures and guidelines of the reviewing or
(c) The engineer shall not, in the perform- audit agency(ies).
ance of the work under this agreement, (d) The engineer agrees to the disclosure of
produce a design or specification which all information and reports resulting from
would be restrictive in violation of section access to records under paragraphs (a) and
204(a)(6) of the Clean Water Act. This statute (b) of this clause, to any of the agencies re-
requires that no specification for bids or ferred to in paragraph (a), provided that the
statement of work shall be written in such a engineer is afforded the opportunity for an
manner as to contain proprietary, exclu- audit exit conference and an opportunity to
sionary, or discriminatory requirements comment and submit any supporting docu-
other than those based upon performance, mentation on the pertinent portions of the
unless such requirements are necessary to draft audit report and that the final audit re-
test or demonstrate a specific thing, or to port will include written comments of rea-
provide for necessary interchangeability of sonable length, if any, of the engineer.
parts and equipment, or at least two brand (e) The engineer shall maintain and make
names or trade names of comparable quality available records under paragraphs (a) and
or utility are listed and are followed by the (b) of this clause during performance on EPA
words ‘‘or equal.’’ With regard to materials, grant work under this agreement and until 3
if a single material is specified, the engineer years from the date of final EPA grant pay-
must be prepared to substantiate the basis ment for the project. In addition, those
for the selection of the material. records which relate to any ‘‘Dispute’’ appeal
(d) The engineer shall report to the owner under an EPA grant agreement, to litiga-
any sole-source or restrictive design or spection, to the settlement of claims arising out
ification giving the reason or reasons why it of such performance, or to costs or items to
is necessary to restrict the design or speci- which an audit exception has been taken,
fication. shall be maintained and made available until
(e) The engineer shall not knowingly speci- 3 years after the date of resolution of such
fy or approve the performance of work at a appeal, litigation, claim, or exception.
facility which is in violation of clean air or
water standards and which is listed by the 10. PRICE REDUCTION FOR DEFECTIVE COST OR
Director of the EPA Office of Federal Activi- PRICING DATA
ties under 40 CFR part 15. (This clause is applicable if the amount of this
agreement exceeds $100,000.)
9. AUDIT; ACCESS TO RECORDS
(a) If the owner or EPA determines that
(a) The engineer shall maintain books, any price, including profit, negotiated in
records, documents, and other evidence di- connection with this agreement or any cost
rectly pertinent to performance on EPA reimbursable under this agreement was in-
grant work under this agreement in accord- creased by any significant sums because the
ance with generally accepted accounting engineer or any subcontractor furnished in-
principles and practices consistently applied, complete or inaccurate cost or pricing data
and 40 CFR 30.605, 30.805, and 35.935–7 in effect or data not current as certified in his certifi-
on the date of execution of this agreement. cation of current cost or pricing data (EPA
The engineer shall also maintain the finan- form 5700–41), then such price, cost, or profit
cial information and data used by the engi- shall be reduced accordingly and the agree-
neer in the preparation or support of the cost ment shall be modified in writing to reflect
submission required under 40 CFR 35.937–6(b) such reduction.
in effect on the date of execution of this (b) Failure to agree on a reduction shall be
agreement and a copy of the cost summary subject to the remedies clause of this agree-
submitted to the owner. The U.S. Environ- ment.
mental Protection Agency, the Comptroller (Note: Since the agreement is subject to reduc-
General of the United States, the U.S. De- tion under this clause by reason of defective cost
partment of Labor, owner, and [the State or pricing data submitted in connection with
water pollution control agency] or any of certain subcontracts, the engineer may wish to
their duly authorized representatives shall include a clause in each such subcontract re-
have access to such books, records, docu- quiring the subcontractor to appropriately in-
ments, and other evidence for inspection, demnify the engineer. It is also expected that
audit, and copying. The engineer will provide any subcontractor subject to such indemnifica-
proper facilities for such access and inspection will generally require substantially similar
tion. indemnification for defective cost or pricing
(b) The engineer agrees to include para- data required to be submitted by his lower tier
graphs (a) through (e) of this clause in all his subcontractors.)
499
11. SUBCONTRACTS agreement or understanding for a commis-
sion, percentage, brokerage, or contingent
(a) Any subcontractors and outside associ-
fee, excepting bona fide employees. For
ates or consultants required by the engineer
breach or violation of this warranty the
in connection with services under this agree-
owner shall have the right to annul this
ment will be limited to such individuals or
agreement without liability or in its discre-
firms as were specifically identified and
tion to deduct from the contract price or
agreed to during negotiations, or as the
consideration, or otherwise recover, the full
owner specifically authorizes during the per-
amount of such commission, percentage, bro-
formance of this agreement. The owner must
kerage, or contingent fee.
give prior approval for any substitutions in
or additions to such subcontractors, associ- 16. GRATUITIES
ates, or consultants.
(b) The engineer may not subcontract serv- (a) If it is found, after notice and hearing,
ices in excess of thirty (30) percent (or lll by the owner that the engineer, or any of the
percent, if the owner and the engineer here- engineer’s agents or representatives, offered
by agree) of the contract price to sub- or gave gratuities (in the form of entertain-
contractors or consultants without the own- ment, gifts, or otherwise), to any official,
er’s prior written approval. employee, or agent of the owner, of the
State, or of EPA in an attempt to secure a
12. LABOR STANDARDS contract or favorable treatment in awarding,
amending, or making any determinations re-
To the extent that this agreement involves
lated to the performance of this agreement,
‘‘construction’’ (as defined by the Secretary
the owner may, by written notice to the en-
of Labor), the engineer agrees that such con-
gineer, terminate the right of the engineer
struction work shall be subject to the fol-
to proceed under this agreement. The owner
lowing labor standards provisions, to the ex-
may also pursue other rights and remedies
tent applicable:
(a) Davis-Bacon Act (40 U.S.C. 276a—276a– that the law or this agreement provides.
7); However, the existence of the facts upon
(b) Contract Work Hours and Safety Stand- which the owner bases such findings shall be
ards Act (40 U.S.C. 327–333); in issue and may be reviewed in proceedings
(c) Copeland Anti-Kickback Act (18 U.S.C. under the remedies clause of this agreement.
874); and (b) In the event this agreement is termi-
(d) Executive Order 11246 (Equal Employ- nated as provided in paragraph (a) hereof,
ment Opportunity); the owner shall be entitled: (1) To pursue the
same remedies against the engineer as it
and implementing rules, regulations, and could pursue in the event of a breach of the
relevant orders of the Secretary of Labor or contract by the engineer, and (2) as a pen-
EPA. The engineer further agrees that this alty, in addition to any other damages to
agreement shall include and be subject to which it may be entitled by law, to exem-
the ‘‘Labor Standards Provisions for Feder- plary damages in an amount (as determined
ally Assisted Construction Contracts’’ (EPA by the owner) which shall be not less than 3
form 5720–4) in effect at the time of execu- nor more than 10 times the costs the engi-
tion of this agreement. neer incurs in providing any such gratuities
13. EQUAL EMPLOYMENT OPPORTUNITY to any such officer or employee.
In accordance with EPA policy as ex- 17. PATENTS

pressed in 40 CFR 30.420–5, the engineer If this agreement involves research, devel-
agrees that he will not discriminate against opmental, experimental, or demonstration
any employee or applicant for employment work and any discovery or invention arises
because of race, religion, color, sex, age, or or is developed in the course of or under this
national origin. agreement, such invention or discovery shall
14. UTILIZATION OF SMALL AND MINORITY be subject to the reporting and rights provi-
BUSINESS sions of subpart D of 40 CFR part 30, in effect
on the date of execution of this agreement,
In accordance with EPA policy as ex- including appendix B of part 30. In such case,
pressed in 40 CFR 35.936–7, the engineer the engineer shall report the discovery or in-
agrees that qualified small business and mi- vention to EPA directly or through the
nority business enterprises shall have the owner, and shall otherwise comply with the
maximum practicable opportunity to par- owner’s responsibilities in accordance with
ticipate in the performance of EPA grant- subpart D of 40 CFR part 30. The engineer
assisted contracts and subcontracts. agrees that the disposition of rights to in-
ventions made under this agreement shall be
15. COVENANT AGAINST CONTINGENT FEES
in accordance with the terms and conditions
The engineer warrants that no person or of appendix B. The engineer shall include ap-
selling agency has been employed or retained propriate patent provisions to achieve the
to solicit or secure this contract upon an purpose of this condition in all subcontracts
500
involving research, developmental, experi- 10. Audit; Access to Records
mental, or demonstration work. 11. Price Reduction for Defective Cost or
Pricing Data
18. COPYRIGHTS AND RIGHTS IN DATA 12. Covenant Against Contingent Fees
(a) The engineer agrees that any plans, 13. Gratuities
drawings, designs, specifications, computer 14. Patents
programs (which are substantially paid for 15. Copyrights and Rights in Data
with EPA grant funds), technical reports, op- 16. Prohibition Against Listed Violating Fa-
erating manuals, and other work submitted cilities
with a step 1 facilities plan or with a step 2 17. Buy American
or step 3 grant application or which are spec-
1. GENERAL
ified to be delivered under this agreement or
which are developed or produced and paid for (a) The owner and the contractor agree
under this agreement (referred to in this that the following supplemental general pro-
clause as ‘‘Subject Data’’) are subject to the visions apply to the work to be performed
rights in the United States, as set forth in under this contract and that these provisions
subpart D of 40 CFR part 30 and in appendix supersede any conflicting provisions of this
C to 40 CFR part 30, in effect on the date of contract.
execution of this agreement. These rights in- (b) This contract is funded in part by a
clude the right to use, duplicate, and disclose grant from the U.S. Environmental Protec-
such subject data, in whole or in part, in any tion Agency. Neither the United States nor
manner for any purpose whatsoever, and to any of its departments, agencies or employ-
have others do so. For purposes of this ees is a party to this contract. This contract
clause, ‘‘grantee’’ as used in appendix C re- is subject to regulations contained in 40 CFR
fers to the engineer. If the material is copy- 35.936, 35.938, and 35.939 in effect on the date
rightable, the engineer may copyright it, as of execution of this contract.
appendix C permits, subject to the rights in (c) The owner’s rights and remedies pro-
the Government in appendix C, but the vided in these clauses are in addition to any
owner and the Federal Government reserve a other rights and remedies provided by law or
royalty-free, nonexclusive, and irrevocable under this contract.
license to reproduce, publish, and use such
materials, in whole or in part, and to author- 2. CHANGES
ize others to do so. The engineer shall in- (a) The owner may, at any time, without
clude appropriate provisions to achieve the notice to the sureties, by written order des-
purpose of this condition in all subcontracts ignated or indicated to be a change order,
expected to produce copyrightable subject make any change in the work within the
data. general scope of the contract, including but
(b) All such subject data furnished by the not limited to changes—
engineer pursuant to this agreement are in- (1) In the specifications (including draw-
struments of his services in respect of the ings and designs);
project. It is understood that the engineer (2) In the method or manner of perform-
does not represent such subject data to be ance of the work;
suitable for reuse on any other project or for (3) In the owner-furnished facilities, equip-
any other purpose. If the owner reuses the ment, materials, services, or site; or
subject data without the engineer’s specific (4) Directing acceleration in the perform-
written verification or adaptation, such ance of the work.
reuse will be at the risk of the owner, with- (b) Any other written order or an oral
out liability to the engineer. Any such order (which terms as used in this paragraph
verification or adaptation will entitle the (b) shall include direction, instruction, inter-
engineer to further compensation at rates pretation, or determination) from the owner,
agreed upon by the owner and the engineer. which causes any such change, shall be
treated as a change order under this clause,
APPENDIX C–2 TO SUBPART E—REQUIRED if the contractor gives the owner written no-
PROVISIONS—CONSTRUCTION CONTRACTS tice stating the date, circumstances, and
source of the order and if the contractor re-
SUPPLEMENTAL GENERAL CONDITIONS
gards the order as a change order.
1. General (c) Except as provided in this clause, no
2. Changes order, statement, or conduct of the owner
3. Differing Site Conditions shall be treated as a change under this
4. Suspension of Work clause or shall entitle the contractor to an
5. Termination for Default; Damages for equitable adjustment.
Delay; Time Extensions (d) If any change under this clause causes
6. Termination for Convenience an increase or decrease in the contractor’s
7. Remedies cost of, or the time required for, the per-
8. Labor Standards formance of any part of the work under this
9. Utilization of Small or Minority Business contract, whether or not changed by any
501
order, an equitable adjustment shall be made as he may determine to be appropriate for
and the contract modified in writing accord- the convenience of the owner.
ingly. However, except for claims based on (b) If the performance of all or any part of
defective specifications, no claim for any the work is, for an unreasonable period of
change under paragraph (b) of this section 2., time, suspended, delayed, or interrupted by
shall be allowed for any costs incurred more an act of the owner in administration of this
than 20 days before the contractor gives contract, or by his failure to act within the
written notice as there required. Also, in the time specfied in this contract (or if no time
case of defective specifications for which the is specified, within a reasonable time), an ad-
owner is responsible, the equitable adjust- justment shall be made for any increase in
ment shall include any increased cost rea- the cost of performance of this contract (ex-
sonably incurred by the contractor in at- cluding profit) necessarily caused by such
tempting to comply with such defective unreasonable suspension, delay, or interrup-
specifications. tion, and the contract modified in writing
(e) If the contractor intends to assert a accordingly. However, no adjustment shall
claim for an equitable adjustment under this be made under this clause for any suspen-
clause, he must, within 30 days after receipt sion, delay, or interruption to the extent (1)
of a written change order under (a) above or that performance would have been so sus-
the furnishing of a written notice under pended, delayed, or interrupted by any other
paragraph (b) of this section 2., submit to the cause, including the fault or negligence of
owner a written statement setting forth the the contractor or (2) for which an equitable
general nature and monetary extent of such adjustment is provided for or excluded under
claim, unless the owner extends this period. any other provision of this contract.
The statement of claim hereunder may be in- (c) No claim under this clause shall be al-
cluded in the notice under paragraph (b) of lowed (1) for any costs incurred more than 20
this section 2. days before the contractor shall have noti-
(f) No claim by the contractor for an equi- fied the owner in writing of the act or failure
table adjustment hereunder shall be allowed to act involved (but this requirement shall
if asserted after final payment under this not apply as to a claim resulting from a sus-
contract. pension order), and (2) unless the claim, in
an amount stated, is asserted in writing as
3. DIFFERING SITE CONDITIONS soon as practicable after the termination of
such suspension, delay, or interruption, but
(a) The contractor shall promptly, and be- not later than the date of final payment
fore such conditions are disturbed, notify the under the contract.
owner in writing of: (1) Subsurface or latent
physical conditions at the site differing ma- 5. TERMINATION FOR DEFAULT; DAMAGES FOR
terially from those indicated in this con- DELAY; TIME EXTENSIONS
tract, or (2) unknown physical conditions at
(a) If the contractor refuses or fails to
the site, of an unusual nature, differing ma-
prosecute the work, or any separable part of
terially from those ordinarily encountered
the work, with such diligence as will insure
and generally recognized as inhering in work
its completion within the time specified in
of the character provided for in this con-
this contract, or any extension thereof, or
tract. The owner shall promptly investigate
fails to complete said work within such time,
the conditions. If he finds that such condi-
the owner may, by written notice to the con-
tions do materially differ and cause an in-
tractor, terminate his right to proceed with
crease or decrease in the contractor’s cost of,
the work or such part of the work as to
or the time required for, performance of any
which there has been delay. In such event
part of the work under this contract, wheth- the owner may take over the work and pros-
er or not changed as a result of such condi- ecute the same to completion, by contract or
tions, an equitable adjustment shall be made otherwise, and may take possession of and
and the contract modified in writing accord- use in completing the work such materials,
ingly. appliances, and plant as may be on the site
(b) No claim of the contractor under this of the work and necessary therefor. Whether
clause shall be allowed unless the contractor or not the contractor’s right to proceed with
has given the notice required in paragraph the work is terminated, he and his sureties
(a) of this clause, except that the owner may shall be liable for any damage to the owner
extend the prescribed time. resulting from his refusal or failure to com-
(c) No claim by the contractor for an equi- plete the work within the specified time.
table adjustment hereunder shall be allowed (b) If the contract provides for liquidated
if asserted after final payment under this damages, and if the owner terminates the
contract. contractor’s right to proceed, the resulting
damage will consist of such liquidated dam-
4. SUSPENSION OF WORK
ages until such reasonable time as may be
(a) The owner may order the contractor in required for final completion of the work to-
writing to suspend, delay, or interrupt all or gether with any increased costs the owner
any part of the work for such period of time incurs in completing the work.
502
(c) If the contract provides for liquidated under the contract is terminated, and the
damages and if the owner does not terminate date upon which such termination becomes
the contractor’s right to proceed, the result- effective.
ing damage will consist of such liquidated (b) After receipt of a notice of termination,
damages until the work is completed or ac- and except as otherwise directed by the
cepted. owner, the contractor shall:
(d) The contractor’s right to proceed shall (1) Stop work under the contract on the
not be terminated nor the contractor date and to the extent specified in the notice
charged with resulting damage if: of termination;
(1) The delay in the completion of the work
(2) Place no further orders or subcontracts
arises from causes other than normal weath-
for materials, services, or facilities except as
er beyond the control and without the fault
or negligence of the contractor, including, necessary to complete the portion of the
but not restricted to, acts of God, acts of the work under the contract which is not termi-
public enemy, acts of the owner in either its nated;
sovereign or contractual capacity, acts of (3) Terminate all orders and subcontracts
another contractor in the performance of a to the extent that they relate to the per-
contract with the owner, fires, floods, formance of work terminated by the notice
epidemics, quarantine restrictions, strikes, of termination;
freight embargoes, unusually severe weather, (4) Assign to the owner, in the manner, at
or delays of subcontractors or suppliers aris- the times, and to the extent directed by the
ing from causes other than normal weather owner, all of the right, title, and interest of
beyond the control and without the fault or the contractor under the orders and sub-
negligence of both the contractor and such contracts so terminated. The owner shall
subcontractors or suppliers; and have the right, in its discretion, to settle or
(2) The contractor, within 10 days from the pay any or all claims arising out of the ter-
beginning of any such delay (unless the mination of such orders and subcontracts;
owner grants a further period of time before (5) Settle all outstanding liabilities and all
the date of final payment under the con- claims arising out of such termination of or-
tract), notifies the owner in writing of the ders and subcontracts, with the approval or
causes of delay. The owner shall ascertain ratification of the owner to the extent he
the facts and the extent of the delay and ex- may require. His approval or ratification
tend the time for completing the work when, shall be final for all the purposes of this
in his judgment, the findings of fact justify clause;
such an extension. His findings of fact shall
(6) Transfer title to the owner, and deliver
be final and conclusive on the parties, sub-
in the manner, at the times, and to the ex-
ject only to appeal as the remedies clause of
tent, if any, directed by the owner, (i) the
this contract provides.
(e) If, after notice of termination of the fabricated or unfabricated parts, work in
contractor’s right to proceed under the pro- process, completed work, supplies, and other
visions of this clause, it is determined for material produced as a part of, or acquired in
any reason that the contractor was not in connection with the performance of, the
default under this clause, or that the delay work terminated by the notice of termi-
was excusable under this clause, the rights nation, and (ii) the completed or partially
and obligations of the parties shall be the completed plans, drawings, information, and
same as if the notice of termination has been other property which, if the contract had
issued under the clause providing for termi- been completed, would have been required to
nation for convenience of the owner. be furnished to the owner;
(f) The rights and remedies of the owner (7) Use his best efforts to sell, in the man-
provided in this clause are in addition to any ner, at the times, to the extent, and at the
other rights and remedies provided by law or price or prices that the owner directs or au-
under this contract. thorizes, any property of the types referred
(g) As used in paragraph (d)(1) of this to in paragraph (b)(6) of this clause, but the
clause, the term ‘‘subcontractors or sup- contractor (i) shall not be required to extend
pliers’’ means subcontractors or suppliers at credit to any purchaser, and (ii) may acquire
any tier. any such property under the conditions pre-
scribed and at a price or prices approved by
6. TERMINATION FOR CONVENIENCE the owner. The proceeds of any such transfer
(a) The owner may terminate the perform- or disposition shall be applied in reduction of
ance of work under this contract in accord- any payments to be made by the owner to
ance with this clause in whole, or from time the contractor under this contract or shall
to time in part, whenever the owner shall de- otherwise be credited to the price or cost of
termine that such termination is in the best the work covered by this contract or paid in
interest of the owner. Any such termination such other manner as the owner may direct;
shall be effected by delivery to the con- (8) Complete performance of such part of
tractor of a notice of termination specifying the work as shall not have been terminated
the extent to which performance of work by the notice of termination; and
503
(9) Take such action as may be necessary, nation, the total (without duplication of any
or as the owner may direct, for the protec- items) of—
tion and preservation of the property related (i) The cost of such work;
to this contract which is in the possession of (ii) The cost of settling and paying claims
the contractor and in which the owner has or arising out of the termination of work under
may acquire an interest. subcontracts or orders as paragraph (b)(5) of
(c) After receipt of a notice of termination, this clause provides. This cost is exclusive of
the contractor shall submit to the owner his the amounts paid or payable on account of
termination claim, in the form and with the supplies or materials delivered or services
certification the owner prescribes. Such furnished by the subcontractor before the ef-
claim shall be submitted promptly but in no fective date of the notice of termination.
event later than 1 year from the effective These amounts shall be included in the cost
date of termination, unless one or more ex- on account of which payment is made under
tensions in writing are granted by the owner paragraph (1)(i) of this section 6.; and
upon request of the contractor made in writ- (iii) A sum, as profit on paragraph (1)(i) of
ing within such 1-year period or authorized this section 6., that the owner determines to
extension. However, if the owner determines be fair and reasonable. But, if it appears that
that the facts justify such action, he may re- the contractor would have sustained a loss
ceive and act upon any such termination on the entire contract had it been completed,
claim at any time after such 1-year period or no profit shall be included or allowed under
extension. If the contractor fails to submit this paragraph (1)(iii) of this section 6., and
his termination claim within the time al- an appropriate adjustment shall be made re-
lowed, the owner may determine, on the ducing the amount of the settlement to re-
basis of information available to him, the flect the indicated rate of loss; and
amount, if any, due to the contractor be- (2) The reasonable cost of the preservation
cause of the termination. The owner shall and protection of property incurred under
then pay to the contractor the amount so de- paragraph (b)(9) of this clause; and any other
termined. reasonable cost incidental to termination of
(d) Subject to the provisions of paragraph work under this contract, including expense
(c), the contractor and the owner may agree incidental to the determination of the
upon the whole or any part of the amount or amount due to the contractor as the result of
amounts to be paid to the contractor because the termination of work under this contract.
of the total or partial termination of work The total sum to be paid to the contractor
under this clause. The amount or amounts under paragraph (e)(1) of this clause shall
may include a reasonable allowance for prof- not exceed the total contract price as re-
it on work done. However, such agreed duced by the amount of payments otherwise
amount or amounts, exclusive of settlement made and as further reduced by the contract
costs, shall not exceed the total contract price of work not terminated. Except for nor-
price as reduced by the amount of payments mal spoilage, and except to the extent that
otherwise made and as further reduced by the owner shall have otherwise expressly as-
the contract price of work not terminated. sumed the risk of loss, there shall be ex-
The contract shall be amended accordingly, cluded from the amounts payable to the con-
and the contractor shall be paid the agreed tractor under paragraph (1) of this clause 6.,
amount. Nothing in paragraph (e) of this the fair value, as determined by the owner of
clause, prescribing the amount to be paid to property which is destroyed, lost, stolen, or
the contractor in the event of failure of the damaged, to the extent that it is un-deliver-
contractor and the owner to agree upon the able to the owner, or to a buyer under para-
whole amount to be paid to the contractor graph (b)(7) of this clause.
because of the termination of work under (f) The contractor shall have the right to
this clause, shall be deemed to limit, re- dispute under the clause of this contract en-
strict, or otherwise determine or affect the titled ‘‘Remedies,’’ from any determination
amount or amounts which may be agreed the owner makes under paragraph (c) or (e)
upon to be paid to the contractor pursuant of this clause. But, if the contractor has
to this paragraph (d). failed to submit his claim within the time
(e) If the contractor and the owner fail to provided in paragraph (c) of this clause and
agree, as paragraph (d) of this section 6., pro- has failed to request extension of such time,
vides, on the whole amount to be paid to the he shall have no such right of appeal. In any
contractor because of the termination of case where the owner has determined the
work under this clause, the owner shall de- amount due under paragraph (c) or (e) of this
termine, on the basis of information avail- clause, the owner shall pay to the contractor
able to him, the amount, if any, due to the the following: (1) If there is no right of ap-
contractor by reason of the termination and peal hereunder or if no timely appeal has
shall pay to the contractor the amounts de- been taken, the amount so determined by
termined as follows: the owner or (2) if a ‘‘Remedies’’ proceeding
(1) For all contract work performed before is initiated, the amount finally determined
the effective date of the notice of termi- in such ‘‘Remedies’’ proceeding.
504
(g) In arriving at the amount due the con- 9. UTILIZATION OF SMALL AND MINORITY
tractor under this clause there shall be de- BUSINESS
ducted (1) all unliquidated advance or other In accordance with EPA policy as ex-
payments on account theretofore made to pressed in 40 CFR 35.936–7, the contractor
the contractor, applicable to the terminated agrees that small business and minority
portion of this contract, (2) any claim which business enterprises shall have the maximum
the owner may have against the contractor practicable opportunity to participate in the
in connection with this contract, and (3) the performance of EPA grant-assisted contracts
agreed price for, or the proceeds of sale of, and subcontracts.
any materials, supplies, or other things kept
by the contractor or sold, under the provi- 10. AUDIT; ACCESS TO RECORDS
sions of this clause, and not otherwise recov- (a) The contractor shall maintain books,
ered by or credited to the owner. records, documents and other evidence di-
(h) If the termination hereunder be partial, rectly pertinent to performance on EPA
before the settlement of the terminated por- grant work under this contract in accord-
tion of this contract, the contractor may file ance with generally accepted accounting
with the owner a request in writing for an principles and practices consistently applied,
equitable adjustment of the price or prices and 40 CFR 30.605, 30.805, and 35.935–7 in effect
on the date of execution of this contract.
specified in the contract relating to the con-
The contractor shall also maintain the fi-
tinued portion of the contract (the portion
nancial information and data used by the
not terminated by the notice of termi- contractor in the preparation or support of
nation). Such equitable adjustment as may the cost submission required under 40 CFR
be agreed upon shall be made in the price or 35.938–5 in effect on the date of execution of
prices. Nothing contained herein shall limit this contract for any negotiated contract or
the right of the owner and the contractor to change order and a copy of the cost summary
agree upon the amount or amounts to be submitted to the owner. The U.S. Environ-
paid to the contractor for the completion of mental Protection Agency, the Comptroller
the continued portion of the contract when General of the United States, the U.S. De-
the contract does not contain an established partment of Labor, owner, and (the State
contract price for the continued portion. water pollution control agency) or any of
their authorized representatives shall have
7. REMEDIES access to such books, records, documents and
other evidence for the purpose of inspection,
Unless this contract provides otherwise, all
audit and copying. The contractor will pro-
claims, counterclaims, disputes and other
vide proper facilities for such access and in-
matters in question between the owner and spection.
the contractor arising out of or relating to (b) If this contract is a formally adver-
this agreement or its breach will be decided tised, competitively awarded, fixed price
by arbitration if the parties mutually agree, contract, the contractor agrees to make
or in a court of competent jurisdiction with- paragraphs (a) through (f) of this clause ap-
in the State in which the owner is located. plicable to all negotiated change orders and
contract amendments affecting the contract
8. LABOR STANDARDS price. In the case of all other types of prime
The contractor agrees that ‘‘construction’’ contracts, the contractor agrees to include
work (as defined by the Secretary of Labor) paragraphs (a) through (f) of this clause in
shall be subject to the following labor stand- all his contracts in excess of $10,000 and all
tier subcontracts in excess of $10,000 and to
ards provisions, to the extent applicable:
make paragraphs (a) through (f) of this
(a) Davis-Bacon Act (40 U.S.C. 276a—276a– clause applicable to all change orders di-
7); rectly related to project performance.
(b) Contract Work Hours and Safety Stand- (c) Audits conducted under this provision
ards Act (40 U.S.C. 327–33); shall be in accordance with generally accept-
(c) Copeland Anti-Kickback Act (18 U.S.C. ed auditing standards and established proce-
874); and dures and guidelines of the reviewing or
(d) Executive Order 11246 (equal employ- audit agency(ies).
ment opportunity); (d) The contractor agrees to the disclosure
of all information and reports resulting from
and implementing rules, regulations, and
access to records under paragraphs (a) and
relevant orders of the Secretary of Labor or
(b) of this clause, to any of the agencies re-
EPA. The contractor further agrees that this ferred to in paragraph (a) of this clause 10.,
contract shall include and be subject to the provided that the contractor is afforded the
‘‘Labor Standards Provisions for Federally opportunity for an audit exit conference, and
assisted Construction Contracts’’ (EPA form an opportunity to comment and submit any
5720–4) in effect at the time of execution of supporting documentation on the pertinent
this agreement. portions of the draft audit report and that
505
the final EPA audit report will include writ- (EPA form 5700–41), then such price or cost or
ten comments of reasonable length, if any, of profit shall be reduced accordingly and the
the contractor. contract shall be modified in writing to re-
(e) Records under paragraphs (a) and (b) of flect such reduction.
this clause 10., shall be maintained and made (b) Failure to agree on a reduction shall be
available during performance on EPA grant subject to the Remedies clause of this con-
work under this contract and until 3 years tract.
from the date of final EPA grant payment (Note: Since the contract is subject to reduc-
for the project. In addition, those records tion under this clause by reason of defective cost
which relate to any ‘‘Dispute’’ appeal under or pricing data submitted in connection with
an EPA grant agreement, to litigation, to certain subcontracts, the contractor may wish to
the settlement of claims arising out of such include a clause in each such subcontract re-
performance, or to costs or items to which quiring the subcontractor to appropriately in-
an audit exception has been taken, shall be demnify the contractor. It is also expected that
maintained and made available until three any subcontractor subject to such indemnifica-
years after the date of resolution of such ap- tion will generally require substantially similar
peal, litigation, claim or exception. indemnification for defective cost or pricing
(f) The right of access which this clause data required to be submitted by his lower tier
confers will generally be exercised (with re- subcontractors.)
spect to financial records) under (1) nego-
tiated prime contracts, (2) negotiated change 12. COVENANT AGAINST CONTINGENT FEES
orders or contract amendments in excess of
The contractor warrants that no person or
$10,000 affecting the price of any formally ad-
selling agency has been employed or retained
vertised, competitively awarded, fixed price
to solicit or secure this contract upon an
contract, and (3) subcontracts or purchase
agreement or understanding for a commis-
orders under any contract other than a for-
sion, percentage, brokerage, or contingent
mally advertised, competitively awarded,
fee, excepting bona fide employees or bona
fixed price contract. However, this right of
access will generally not be exercised with fide established commercial or selling agen-
respect to a prime contract, subcontract, or cies maintained by the contractor for the
purchase order awarded after effective price purpose of securing business. For breach or
competition. In any event, such right of ac- violation of this warranty the owner shall
cess may be exercised under any type of con- have the right to annul this contract with-
tract or subcontract (1) with respect to out liability or in its discretion to deduct
records pertaining directly to contract per- from the contract price or consideration, or
formance, excluding any financial records of otherwise recover, the full amount of such
the contractor, (2) if there is any indication commission, percentage, brokerage, or con-
that fraud, gross abuse, or corrupt practices tingent fee.
may be involved or (3) if the contract is ter- 13. GRATUITIES
minated for default or for convenience.
(a) If the owner finds, after notice and
11. PRICE REDUCTION FOR DEFECTIVE COST OR hearing, that the contractor or any of the
PRICING DATA contractor’s agents or representatives of-
(This clause is applicable to (1) any nego- fered or gave gratuities (in the form of enter-
tiated prime contract in excess of $100,000; (2) tainment, gifts, or otherwise) to any official,
negotiated contract amendments or change or- employee or agent of the owner, of the State,
ders in excess of $100,000 affecting the price of a or of EPA in an attempt to secure a contract
formally advertised, competitively awarded, or favorable treatment in the awarding,
fixed price contract; or (3) any subcontract or amending, or making any determinations re-
purchase order in excess of $100,000 under a lated to the performance of this contract,
prime contract other than a formally advertised, the owner may, by written notice to the con-
competitively awarded, fixed price contract. tractor, terminate the right of the con-
Change orders shall be determined to be in ex- tractor to proceed under this contract. The
cess of $100,000 in accordance with 40 CFR owner may also pursue other rights and rem-
35.938–5(g). However, this clause is not applica- edies that the law or this contract provides.
ble for contracts or subcontracts to the extent However, the existence of the facts upon
that they are awarded on the basis of effective which the owner makes such findings shall
price competition.) be in issue and may be reviewed in pro-
(a) If the owner or EPA determines that ceedings under the remedies clause of this
any price (including profit) negotiated in contract.
connection with this contract, or any cost (b) In the event this contract is terminated
reimbursable under this contract, was in- as provided in paragraph (a) of this clause,
creased by any significant sums because the the owner shall be entitled (1) to pursue the
contractor, or any subcontractor furnished same remedies against the contractor as it
incomplete or inaccurate cost or pricing could pursue in the event of a breach of the
data or data not current as certified in his contract by the contractor, and (2) as a pen-
certification of current cost or pricing data alty in addition to any other damages to
506
which it may be entitled by law, to exem- 16. PROHIBITION AGAINST LISTED VIOLATING
plary damages in an amount (as determined FACILITIES
by the owner) which shall be not less than 3 (Applicable only to a contract in excess of
nor more than 10 times the costs the con- $100,000 and when otherwise applicable under 40
tractor incurs in providing any such gratu- CFR part 15.)
ities to any such officer or employee. (a) The contractor agrees as follows:
(1) To comply with all the requirements of
14. PATENTS
section 114 of the Clean Air Act, as amended
If this contract involves research, develop- (42 U.S.C. 1857, et seq., as amended by Pub. L.
mental, experimental, or demonstration 92–604) and section 308 of the Clean Water
work, and any discovery or invention arises Act (33 U.S.C. 1251, as amended), respec-
or is developed in the course of or under this tively, which relate to inspection, moni-
contract, such invention or discovery shall toring, entry, reports, and information, as
be subject to the reporting and rights provi- well as other requirements specified in sec-
sions of subpart D of 40 CFR part 30, in effect tion 114 and section 308 of the Air Act and
on the date of execution of this contract, in- the Water Act, respectively, and all regula-
cluding appendix B of part 30. In such case, tions and guidelines issued thereunder before
the contractor shall report the discovery or the award of this contract.
invention to EPA directly or through the (2) That no portion of the work required by
this prime contract will be performed in a fa-
owner, and shall otherwise comply with the
cility listed on the Environmental Protec-
owner’s responsibilities in accordance with
tion Agency list of violating facilities on the
subpart D of 40 CFR part 30. The contractor
date when this contract was awarded unless
agrees that the disposition of rights to in-
and until the EPA eliminates the name of
ventions made under this contract shall be
such facility or facilities from the listing.
in accordance with the terms and conditions (3) To use his best efforts to comply with
of appendix B. The contractor shall include clean air and clean water standards at the
appropriate patent provisions to achieve the facilities in which the contract is being per-
intent of this condition in all subcontracts formed.
involving research, developmental, experi- (4) To insert the substance of the provi-
mental, or demonstration work. sions of this clause, including this paragraph
(4), in any nonexempt subcontract.
15. COPYRIGHTS AND RIGHTS IN DATA (b) The terms used in this clause have the
The contractor agrees that any plans, following meanings:
drawings, designs, specifications, computer (1) The term Air Act means the Clean Air
programs (which are substantially paid for Act, as amended (42 U.S.C. 1857 et seq.).
with EPA grant funds), technical reports, op- (2) The term Water Act means the Clean
erating manuals, and other work submitted Water Act, as amended (33 U.S.C. 1251 et seq.).
with a proposal or grant application or (3) The term Clean Air Standards means any
which are specified to be delivered under this enforceable rules, regulations, guidelines,
contract or which are developed or produced standards, limitations, orders, controls, pro-
and paid for under this contract (referred to hibitions, or other requirements which are
contained in, issued under, or otherwise
in this clause as ‘‘Subject Data’’) are subject
adopted under the Air Act or Executive
to the rights in the United States, as set
Order 11738, an applicable implementation
forth in subpart D of 40 CFR part 30 and in
plan as described in section 110(d) of the Air
appendix C to 40 CFR part 30, in effect on the
Act (42 U.S.C. 1857c–5(d)), an approved imple-
date of execution of this contract. These
mentation procedure or plan under section
rights include the right to use, duplicate and 111(c) or section 111(d), or an approved imple-
disclose such Subject Data, in whole or in mentation procedure under section 112(d) of
part, in any manner for any purpose whatso- the Air Act (42 U.S.C. 1857c–7(d)).
ever, and to have others do so. For purposes (4) The term Clean Water Standards means
of this clause, ‘‘grantee’’ as used in appendix any enforceable limitation, control, condi-
C refers to the contractor. If the material is tion, prohibition, standard, or other require-
copyrightable, the contractor may copyright ment which is promulgated under the Water
it, as appendix C permits, subject to the Act or contained in a permit issued to a dis-
rights in the Government as set forth in ap- charger by the Environmental Protection
pendix C, but the owner and the Federal Gov- Agency or by a State under an approved pro-
ernment reserve a royalty-free, nonexclu- gram, as authorized by section 402 of the
sive, and irrevocable license to reproduce, Water Act (33 U.S.C. 1342), or by a local gov-
publish and use such materials, in whole or ernment to ensure compliance with
in part, and to authorize others to do so. The pretreatment regulations as required by sec-
contractor shall include provisions appro- tion 307 of the Water Act (33 U.S.C. 1317).
priate to achieve the intent of this condition (5) The term Compliance means compliance
in all subcontracts expected to produce copy- with clean air or water standards. Compli-
rightable Subject Data. ance shall also mean compliance with a
507
Pt. 35, Subpt. E, App. D 40 CFR Ch. I (7–1–00 Edition)
schedule or plan ordered or approved by a other services performed, excluding any type
court of competent jurisdiction, the of financial records of the consulting engi-
Envrionmental Protection Agency or an Air neer.
or Water Pollution Control Agency in ac- (2) Category B: Financial records of the
cordance with the requirements of the Air consulting engineer pertaining to the direct
Act or Water Act and regulations. costs of professional, technical and other
(6) The term Facility means any building, services performed, excluding financial
plant, installation, structure, mine, vessel, records pertaining to profit and overhead or
or other floating craft, location, or site of other indirect costs.
operations, owned, leased, or supervised by a (3) Category C: Financial records of the
contractor or subcontractor, to be used in consulting engineer excluded from category
the performance of a contract or sub- B.
contract. Where a location or site of oper- b. In all cases, EPA will exercise its right
ations contains or includes more than one of access to Category A records. Also, where
building, plant, installation, or structure, there is an indication that fraud, gross
the entire location or site shall be deemed to abuse, or corrupt practices may be involved,
be a facility except where the Director, Of- EPA will exercise its right of access to rec-
fice of Federal Activities, Environmental ords in all categories. Otherwise, access to
Protection Agency, determines that inde- consulting engineers’ financial records (cat-
pendent facilities are located in one geo- egories B and C) will depend principally upon
graphical area. the method(s) of compensation stipulated in
the agreement:
17. BUY AMERICAN (1) Agreements based upon a percentage of
In accordance with section 215 of the Clean construction cost. Category B and C records
Water Act, and implementing EPA regula- will not be audited. However, terms of the
tions and guidelines, the contractor agrees agreement, including the total amount of
that preference will be given to domestic compensation, will be evaluated for fairness,
construction material by the contractor, reasonableness, and consistency with histor-
subcontractors, materialmen, and suppliers ical and advisory guidelines in general use
in the performance of this contract. and acceptable locally. These guidelines in-
clude those in ASCE manual 45 or other
[43 FR 44049, Sept. 27, 1978, as amended at 44 analyses or data which the contracting par-
FR 37596, June 27, 1979; 44 FR 39340, July 5, ties relied on or used in negotiation of the
1979] agreement. Such evaluation shall also con-
sider comparable contracts for which EPA
APPENDIX D TO SUBPART E—EPA TRAN- grants have been awarded.
SITION POLICY—EXISTING CON- (2) Agreements based upon salary cost times a
SULTING ENGINEERING AGREEMENTS multiplier including profit. Category B records
will be audited. Category C records will not
A. ACCESS TO RECORDS—AUDIT be audited. However, terms of the agree-
1. Access clause. After June 30, 1975, a con- ment, including the total amount of com-
struction grant for Steps 1, 2 or 3 will not be pensation and the multiplier, will be evalu-
awarded nor will initiation of Step 1 work be ated for fairness and reasonableness and con-
approved under 40 CFR 35.917(e) or 35.925– sistency with historical and advisory guide-
18(a)(3), unless an acceptable records and ac- lines in general use and acceptable locally.
cess clause is included in the consulting en- These guidelines include those in ASCE man-
gineering subagreement. The clause con- ual 45 or other analyses or data which the
tained in appendix C–1 shall be used on or contracting parties relied on or used in nego-
after March 1, 1976. The clause required by tiation of the agreement. Such evaluation
former PG–53 or approved as an alternate shall also consider comparable contracts for
thereto may be used for all contracts under which EPA grants have been awarded. Items
grants awarded before March 1, 1976. of overhead or other indirect costs will only
2. EPA exercise of right of access to records. be audited to the extent necessary to assure
Under applicable statutory and regulatory that types of costs found both in overhead
provisions, EPA has a broad right of access and reimbursable direct costs, if any, are
to grantees’ consulting engineers’ records properly charged.
pertinent to performance of EPA project (3) Per diem agreements. Category B records
work. The extent to which EPA will exercise will be audited. Category C records will not
this right of access will depend upon the na- be audited. Audit will be performed to the
ture of the records and upon the type of extent necessary to determine that hours
agreement. claimed and classes of personnel used were
a. In order to determine where EPA shall properly supported. The per diem rates will
exercise its right of access, engineers’ be evaluated according to the appropriate
project-related records have been divided portions of paragraphs A.2.b. (1) and (2) of
into three categories: this appendix.
(1) Category A: Records that pertain di- (4) Cost plus a fixed fee (profit). All direct
rectly to the professional, technical and costs, overhead, and other indirect costs
508
Environmental Protection Agency Pt. 35, Subpt. E, App. D
claimed will be audited to determine that a multiplier contract, where the multiplier
they are reasonable, allowable, and properly includes profit, is not acceptable where re-
supported by the consulting engineer’s negotiation of such contracts is required. In
records. The amount of fixed fee will not be such renegotiation, the amount of profit
questioned unless the total compensation ap- must be specifically identified.
pears unreasonable when evaluated accord- 5. Total allowable contract costs for grant
ing to paragraphs A.2.b. (1) and (2) of this ap- payment for a contract based on a percent-
pendix. age-of-construction-cost will be based on the
(5) Fixed price lump sum contracts. Category following:
B and C records will not be audited. The con- a. Where work for the design step is essen-
tract amount will not be questioned unless
tially continuous from start of design to bid-
the total compensation appears unreasonable
ding, and bid opening for step 3 construction
when evaluated in accordance with appro-
occurs within 1 year after substantial com-
priate portions of paragraphs A.2.b. (1) and
pletion of step 2 design work, the total al-
(2) of this appendix.
lowable contract costs for grant payment
c. If an agreement covers both grant-eligi-
ble and ineligible work, access to records may not exceed an amount based upon the
will be exercised to the extent necessary to low, responsive, responsible bid for construc-
allocate contract work or costs between tion.
work grant-eligible for title II construction b. Where work for the design step is not es-
grant assistance and ineligible work or costs. sentially continuous from start of design to
d. Under agreements that use two or more bidding, or 1 year or more elapses between
methods of compensation, each part of the substantial completion of step 2 design work
agreement will be separately audited accord- and bid opening for step 3 construction, the
ing to the appropriate paragraph of para- total allowable contract costs for grant pay-
graph (b)(2) of this section. ment may not exceed an amount based upon
e. Any audited firm and the grantee will be the lower of:
afforded opportunity for an audit exit con- (1) The consulting engineer’s construction
ference and an opportunity to receive and cost estimate provided at the time of such
comment upon the pertinent portions of each substantial completion plus an escalation of
draft audit report. The final audit report will this construction cost estimate of up to 5
include the written comments, if any, of the percent, but not to exceed the consulting en-
audited parties in addition to those of the gineer’s total compensation based on the
appropriate State and/or Federal agency(ies). low, responsive, responsible bid for construc-
tion, or
B. TYPE OF CONTRACT
(2) The consulting engineer’s construction
1. The percentage-of-construction-cost cost estimate provided at the time of such
type of contract, and the multiplier con- substantial completion plus a consulting en-
tract, where the multiplier includes profit, gineer’s compensation esclation not to ex-
may not be used for step 1 or step 2 work ini- ceed $50,000, but not to exceed the consulting
tiated after June 30, 1975, when the step 1 or engineer’s total compensation based upon
step 2 grant is awarded after June 30, 1975. (A the low, responsive, responsible bid for con-
multiplier type of compensation may be used struction.
only under acceptable types of contracts; see c. Where the low, responsive, responsible
40 CFR 35.937–1(d).) bid for construction would have resulted in a
2. Step 1 and step 2 work performed under
higher consulting engineer’s total compensa-
the percentage-of-construction-cost type of
tion than paragraph b. of this clause, pro-
contract and the multiplier contract, where
vides, the Regional Administrator may also
the multiplier includes profit, will be reim-
consider a reasonable additional compensa-
bursed and such contracts will not be ques-
tion for updating the plans and specifica-
tioned where such costs are reimbursed in
tions, revising cost estimates, or similar
conjunction with a step 3 grant award within
services.
the scope of step 2 work contracted for prior
to July 1, 1975. However, the current step 2 d. The limitations of paragraph B5 apply to
work will not be continued indefinitely for all grants awarded under subpart E except
multiple, subsequent step 3 projects in order that—
to avoid modifying the consultant agree- (1) If the Regional Administrator had made
ment. final payment on a project before December
3. Where step 2 work is initiated after June 17, 1975, the limitations do not apply; and
30, 1975, under contracts prohibited by para- (2) For other projects on which construc-
graphs B.1. and B.2. of this appendix, EPA tion for the building and erection of a treat-
approval may not be given nor grant assist- ment works was initiated prior to December
ance awarded until the contract’s terms of 17, 1975, the limitations do not apply to any
compensation have been renegotiated. request for engineering fee increases attrib-
4. Establishing an ‘‘upset’’ figure (an upper utable to construction contract awards or
limit which cannot be exceeded without a change orders approved by the grantee prior
formal amendment to the agreement) under to December 17, 1975.
509
Pt. 35, Subpt. E, App. E 40 CFR Ch. I (7–1–00 Edition)
6. Where renegotiation is required under b. Increased grants for eligible treatment
this appendix D, such renegotiation is sub- works under §§ 35.930–5 (b) and (c) and
ject to 40 CFR 35.937–1, 35.937–6, 35.937–7, 35.908(b)(1);
35.937–9, and 35.937–10. c. The funding available for innovative and
alternative processes and techniques under
C. ANNOUNCEMENT AND SELECTION § 35.915–1(b);
The requirements of 40 CFR 35.937–2 d. The funding available for alternatives to
through 35.937–4 shall not apply to step 1 conventional treatment works for small
work where the step 1 grant was awarded or communities under § 35.915–1(e);
the initiation of step 1 work was approved by e. The cost-effectiveness preference given
EPA (under 40 CFR 35.917(e)) before March 1, innovative and alternative processes and
1976, nor to subsequent step 2 and step 3 work techniques in section 7 of appendix A to this
subpart;
in accordance with 40 CFR 35.937–2(d), if the
grantee is satisfied with the qualifications f. The treatment works that may be given
and performance of the engineer employed. higher priority on State project priority lists
under § 35.915(a)(1)(iii);
D. REQUIRED CONSULTING ENGINEERING g. Alternative and innovative treatment
PROVISIONS systems in connection with Federal facili-
ties;
Effective March 1, 1976, the subagreement h. Individual systems authorized by
clauses required under appendix C–1 must be § 35.918, as modified in that section to include
included in the consulting engineering sub- unconventional or innovative sewers;
agreement before grant assistance for step 1, i. The access and reports conditions in
2 or 3 will be awarded and before initiation of § 35.935–20.
step 1 work will be approved under 40 CFR 4. Alternative processes and techniques. Al-
35.917(e) or 35.925–18(a) 3. ternative waste water treatment processes
and techniques are proven methods which
E. ENFORCEMENT provide for the reclaiming and reuse of
1. Refusal by a consulting engineer to in- water, productively recycle waste water con-
sert the required access clause, or to allow stituents or otherwise eliminate the dis-
access to its records, or to renegotiate a con- charge of pollutants, or recover energy.
sulting engineering contract according to a. In the case of processes and techniques
the foregoing requirements, will render costs for the treatment of effluents, these include
incurred under such contract unallowable. land treatment, aquifer recharge, aqua-
Accordingly, all such costs will be ques- culture, silviculture, and direct reuse for in-
tioned and disallowed pending compliance dustrial and other nonpotable purposes, hor-
with this appendix. ticulture and revegetation of disturbed land.
Total containment ponds and ponds for the
2. Where the Regional Administrator deter-
treatment and storage of waste water prior
mines that the time required to comply with
to land application and other processes nec-
the access to records and type of contract
essary to provide minimum levels of
provisions of this appendix will unduly delay
preapplication treatment are considered to
award of grant assistance, he may award the
be part of alternative technology systems for
grant assistance conditioned upon compli-
the purpose of this section.
ance with this appendix within a specified
b. For sludges, these include land applica-
period of time. In such event, no grant pay-
tion for horticultural, silvicultural, or agri-
ments for the affected engineering work may
cultural purposes (including supplemental
be made until such compliance has been ob-
processing by means such as composting or
tained.
drying), and revegetation of disturbed lands.
c. Energy recovery facilities include codis-
APPENDIX E TO SUBPART E—INNOVATIVE posal measures for sludge and refuse which
AND ALTERNATIVE TECHNOLOGY produce energy; anaerobic digestion facili-
GUIDELINES ties (Provided, That more than 90 percent of
the methane gas is recovered and used as
1. Purpose. These guidelines provide the fuel); and equipment which provides for the
criteria for identifying and evaluating inno- use of digester gas within the treatment
vative and alternative waste water treat- works. Self-sustaining incineration may also
ment processes and techniques. The Admin- be included provided that the energy recov-
istrator may publish additional information. ered and productively used is greater than
2. Authority. These guidelines are provided the energy consumed to dewater the sludge
under section 304(d)(3) of the Clean Water to an autogenous state.
Act. d. Also included are individual and other
3. Applicability. These guidelines apply to: onsite treatment systems with subsurface or
a. The analysis of innovative and alter- other means of effluent disposal and facili-
native treatment processes and techniques ties constructed for the specific purpose of
under § 35.917–1(d)(8); septage treatment.
510
Environmental Protection Agency Pt. 35, Subpt. E, App. E
e. The term ‘‘alternative’’ as used in these process or technique is innovative. The cri-
guidelines includes the terms ‘‘unconven- teria should be read in the context of para-
tional’’ and ‘‘alternative to conventional’’ as graph 5. These criteria do not necessarily
used in the Act. preclude a determination by the Regional
f. The term ‘‘alternative’’ does not include Administrator that a treatment system is
collector sewers, interceptors, storm or sani- innovative because of local variations in geo-
tary sewers or the separation thereof; or graphic or climatic conditions which affect
major sewer rehabilitation, except insofar as treatment plant design and operation or be-
they are alternatives to conventional treat- cause it achieves significant public benefits
ment works for small communities under through the advancement of technology
§ 35.915–1(e) or part of individual systems which would otherwise not be possible. The
under § 35.918. Regional Administrator should consult with
5. Innovative processes and techniques. Inno- EPA headquarters about determinations
vative waste water treatment processes and made in other EPA regions on similar proc-
techniques are developed methods which esses and techniques.
have not been fully proven under the cir- b. New or improved applications of alter-
cumstances of their contemplated use and native waste water treatment processes and
which represent a significant advancement techniques may be innovative for the pur-
over the state of the art in terms of meeting poses of this regulation if they meet one or
the national goals of cost reduction, in- more of the criteria in paragraphs e(1)
creased energy conservation or recovery, through e(6) of this paragraph. Treatment
greater recycling and conservation of water and discharge systems (i.e., systems which
resources (including preventing the mixing are not new or improved applications of al-
of pollutants with water), reclamation or ternative waste water treatment processes
reuse of effluents and resources (including and techniques in accordance with paragraph
increased productivity of arid lands), im- 4 of these guidelines) must meet the criteria
proved efficiency and/or reliability, the bene- of either paragraph 6e(1) or 6e(2), as a min-
ficial use of sludges or effluent constituents, imum, in order to be innovative for the pur-
better management of toxic materials or in- poses of these guidelines.
creased environmental benefits. For the pur- c. These six criteria are essentially the
pose of these guidelines, innovative waste same as those used to evaluate any project
water treatment processes and techniques proposed for grant assistance. The principal
are generally limited to new and improved difference is that some newly developed
applications of those alternative processes processes and techniques may have the po-
and techniques identified in accordance with tential to provide significant advancements
paragraph 4 of these guidelines, including in the state of the art with respect to one or
both treatment at centralized facilities and more of these criteria. Inherent in the con-
individual and other onsite treatment. cept of advancement of technology is a de-
Treatment processes based on the conven- gree of risk which is necessary to initially
tional concept of treatment (by means of bi- demonstrate a method on a full, operational
ological or physical/chemical unit processes) scale under the circumstances of its con-
and discharge to surface waters shall not be templated use. This risk, while recognized to
considered innovative waste water treatment be a necessary element in the implementa-
processes and techniques except where it is tion of innovative technology, must be mini-
demonstrated that these processes and tech- mized by limiting the projects funded to
niques, as a minimum, meet either the cost- those which have been fully developed and
reduction or energy-reduction criterion de- shown to be feasible through operation on a
scribed in section 6 of these guidelines. smaller scale. The risk must also be com-
Treatment and discharge systems include mensurate with the potential benefits (i.e.,
primary treatment, suspended-growth or greater potential benefits must be possible
fixed-growth biological systems for sec- in the case of innovative technology projects
ondary or advance waste water treatment, where greater risk is involved).
physical/chemical treatment, disinfection, d. Increased Federal funding under
and sludge processing. The term ‘‘innova- § 35.908(b) may be made only from the reserve
tive’’ does not include collector sewers, in § 35.915–1(b). The Regional Administrator
interceptors, storm or sanitary sewers or the may fund a number of projects using the
separation of them, or major sewer rehabili- same type of innovative technology if he de-
tation, except insofar as they meet the cri- sires to encourage certain innovative proc-
teria in paragraph 6 of these guidelines and esses and techniques because the potential
are alternatives to conventional treatment benefits are great in comparison to the risks,
works for small communities under § 35.915– or if operation under differing conditions of
1(e) or part of individual systems under climatic, geology, etc., is desirable to dem-
§ 35.918. onstrate the technology.
6. Criteria for determining innovative proc- e. The Regional Administrator will use the
esses and techniques. a. The Regional Admin- following criteria to determine whether
istrator will use the following criteria in de- waste water treatment processes and tech-
termining whether a waste water treatment niques are innovative:
511
§ 35.1600 40 CFR Ch. I (7–1–00 Edition)
(1) The life cycle cost of the eligible por- § 35.1600 Purpose.
tion of the treatment works excluding con-
ventional sewer lines is at least 15 percent This subpart supplements the EPA
less than that for the most cost-effective al- general grant regulations and proce-
ternative which does not incorporate innova- dures (part 31 of this chapter) and es-
tive waste water treatment processes and tablishes policies and procedures for
techniques (i.e., is no more than 85 percent of cooperative agreements to assist
the life cycle cost of the most cost-effective States and Indian tribes treated as
noninnovative alternative). States in carrying out approved meth-
(2) The net primary energy requirements ods and procedures for restoration (in-
for the operation of the eligible portion of cluding protection against degrada-
the treatment works excluding conventional tion) of publicly owned freshwater
sewer lines are at least 20 percent less than lakes.
the net energy requirements of the least net
energy alternative which does not incor- [45 FR 7792, Feb. 5, 1980, as amended at 54 FR
porate innovative waste water treatment 14359, Apr. 11, 1989]
processes and techniques (i.e., the net energy
requirements are no more than 80 percent of § 35.1603 Summary of clean lakes as-
those for the least net energy noninnovative sistance program.
alternative). The least net energy non- (a) Under section 314 of the Clean
innovative alternative must be one of the al- Water Act, EPA may provide financial
ternatives selected for analysis under section
assistance to States to implement
5 of appendix A.
methods and procedures to protect and
(3) The operational reliability of the treat-
ment works is improved in terms of de-
restore publicly owned freshwater
creased susceptibility to upsets or inter- lakes. Although cooperative agree-
ference, reduced occurrence of inadequately ments may be awarded only to States,
treated discharges and decreased levels of these regulations allow States, through
operator attention and skills required. substate agreements, to delegate some
(4) The treatment works provides for bet- or all of the required work to substate
ter management of toxic materials which agencies.
would otherwise result in greater environ- (b) Only projects that deal with pub-
mental hazards. licly owned freshwater lakes are eligi-
(5) The treatment works results in in- ble for assistance. The State must have
creased environmental benefits such as assigned a priority to restore the lake,
water conservation, more effective land use, and the State must certify that the
improved air quality, improved ground water lake project is consistent with the
quality, and reduced resource requirements State Water Quality Management Plan
for the construction and operation of the
(§ 35.1521) developed under the State/
works.
(6) The treatment works provide for new or
EPA Agreement. The State/EPA Agree-
improved methods of joint treatment and ment is a mechanism for EPA Regional
management of municipal and industrial Administrators and States to coordi-
wastes that are discharged into municipal nate a variety of programs under the
systems. Clean Water Act, the Resource Con-
servation and Recovery Act, the Safe
Drinking Water Act and other laws ad-
FR 37596, June 27, 1979; 44 FR 39340, July 5,
1979]
ministered by EPA.
(c) These regulations provide for
Phase 1 and 2 cooperative agreements.
Subparts F–G [Reserved] The purpose of a Phase 1 cooperative
agreement is to allow a State to con-
Subpart H—Cooperative Agree- duct a diagnostic-feasibility study to
ments for Protecting and Re- determine a lake’s quality, evaluate
storing Publicly Owned Fresh- possible solutions to existing pollution
water Lakes problems, and recommend a feasible
program to restore or preserve the
quality of the lake. A Phase 2 coopera-
AUTHORITY: Sections 314, 501 and 518, Clean tive agreement is to be used for imple-
Water Act (86 Stat. 816, 33 U.S.C. 1251 et seq.). menting recommended methods and
SOURCE: 45 FR 7792, Feb. 5, 1980, unless oth- procedures for controlling pollution en-
erwise noted. tering the lake and restoring the lake.
512
EPA award of Phase 1 assistance does § 35.1605–3 Publicly owned freshwater

not obligate EPA to award Phase 2 as- lake.
sistance for that project. Additionally, A freshwater lake that offers public
a Phase 1 award is not a prerequisite access to the lake through publicly
for receiving a Phase 2 award. However,
owned contiguous land so that any per-
a Phase 2 application for a proposed
son has the same opportunity to enjoy
project that was not evaluated under a
nonconsumptive privileges and benefits
Phase 1 project shall contain the infor-
of the lake as any other person. If user
mation required by appendix A.
fees are charged for public use and ac-
(d) EPA will evaluate all applications
cess through State or substate oper-
in accordance with the application re-
ated facilities, the fees must be used
view criteria of § 35.1640–1. The review
for maintaining the public access and
criteria include technical feasibility,
recreational facilities of this lake or
public benefit, reasonableness of pro-
posed costs, environmental impact, and other publicly owned freshwater lakes
the State’s priority ranking of the lake in the State, or for improving the qual-
project. ity of these lakes.
(e) Before awarding funding assist- § 35.1605–4 Nonpoint source.
ance, the Regional Administrator shall
determine that pollution control meas- Pollution sources which generally
ures in the lake watershed authorized are not controlled by establishing ef-
by section 201, included in an approved fluent limitations under sections 301,
208 plan, or required by section 402 of 302, and 402 of the Act. Nonpoint source
the Act are completed or are being im- pollutants are not traceable to a dis-
plemented according to a schedule that crete identifiable origin, but generally
is included in an approved plan or dis- result from land runoff, precipitation,
charge permit. Clean lakes funds may drainage, or seepage.
not be used to control the discharge of
pollutants from a point source where § 35.1605–5 Eutrophic lake.
the cause of pollution can be alleviated A lake that exhibits any of the fol-
through a municipal or industrial per- lowing characteristics:
mit under section 402 of the Act or (a) Excessive biomass accumulations
through the planning and construction of primary producers;
of wastewater treatment facilities (b) Rapid organic and/or inorganic
under section 201 of the Act. sedimentation and shallowing; or
§ 35.1605 Definitions. (c) Seasonal and/or diurnal dissolved
oxygen deficiencies that may cause ob-
The terms used in this subpart have noxious odors, fish kills, or a shift in
the meanings defined in sections 502 the composition of aquatic fauna to
and 518(h) of the Act. In addition, the less desirable forms.
following terms shall have the meaning
set forth below. § 35.1605–6 Trophic condition.
[45 FR 7792, Feb. 5, 1980, as amended at 54 FR A relative description of a lake’s bio-
14359, Apr. 11, 1989] logical productivity based on the avail-
ability of plant nutrients. The range of
§ 35.1605–1 The Act.
trophic conditions is characterized by
The Clean Water Act, as amended (33 the terms of oligotrophic for the least
U.S.C. 1251 et seq.). biologically productive, to eutrophic
for the most biologically productive.
§ 35.1605–2 Freshwater lake.
Any inland pond, reservoir, impound- § 35.1605–7 Desalinization.
ment, or other similar body of water Any mechanical procedure or process
that has recreational value, that exhib- where some or all of the salt is re-
its no oceanic and tidal influences, and moved from lake water and the fresh-
that has a total dissolved solids con- water portion is returned to the lake.
centration of less than 1 percent.
513
§ 35.1605–8 40 CFR Ch. I (7–1–00 Edition)
§ 35.1605–8 Diagnostic-feasibility lakes program which States identify in

study. their State WQM work programs.
A two-part study to determine a (b) EPA may set aside up to twenty
lake’s current condition and to develop percent of the annual appropriations
possible methods for lake restoration for Phase 1 projects.
and protection.
§ 35.1615 Substate agreements.
(a) The diagnostic portion of the
study includes gathering information States may make financial assist-
and data to determine the limnologi- ance available to substate agencies by
cal, morphological, demographic, means of a written interagency agree-
socio-economic, and other pertinent ment transferring project funds from
characteristics of the lake and its wa- the State to those agencies. The agree-
tershed. This information will provide ment shall be developed, administered
recipients an understanding of the and approved in accordance with the
quality of the lake, specifying the loca- provisions of 40 CFR 33.240 (Intergov-
tion and loading characteristics of sig- ernmental agreements). A State may
nificant sources polluting the lake. enter into an agreement with a sub-
(b) The feasibility portion of the state agency to perform all or a por-
study includes: tion of the work under a clean lakes
(1) Analyzing the diagnostic informa- cooperative agreement. Recipients
tion to define methods and procedures shall submit copies of all interagency
for controlling the sources of pollution; agreements to the Regional Adminis-
(2) Determining the most energy and trator. If the sum involved exceeds
cost efficient procedures to improve $100,000, the agreement shall be ap-
the quality of the lake for maximum proved by the Regional Administrator
public benefit; before funds are released by the State
to the substate agency. The agreement
(3) Developing a technical plan and
shall incorporate by reference the pro-
milestone schedule for implementing
visions of this subchapter. The agree-
pollution control measures and in-lake
ment shall specify outputs, milestone
restoration procedures; and
schedule, and the budget required to
(4) If necessary, conducting pilot
perform the associated work in the
scale evaluations.
same manner as the cooperative agree-
§ 35.1605–9 Indian Tribe set forth at 40 ment between the State and EPA.
CFR 130.6(d).
§ 35.1620 Application requirements.
A Tribe meeting the requirements set
(a) EPA will process applications in
forth at 40 CFR 130.6(d).
accordance with subpart B of part 30 of
[54 FR 14359, Apr. 11, 1989, as amended at 56 this subchapter. Applicants for assist-
FR 13817, Mar. 23, 1994] ance under the clean lakes program
shall submit EPA form 5700–33 (original
§ 35.1610 Eligibility. with signature and two copies) to the
EPA shall award cooperative agree- appropriate EPA Regional Office (see
ments for restoring publicly owned 40 CFR 30.130).
freshwater lakes only to the State (b) Before applying for assistance, ap-
agency designated by the State’s Chief plicants should contact the appropriate
Executive. The award will be for Regional Administrator to determine
projects which meet the requirements EPA’s current funding capability.
of this subchapter.
§ 35.1620–1 Types of assistance.
§ 35.1613 Distribution of funds. EPA will provide assistance in two
(a) For each fiscal year EPA will no- phases in the clean lakes program.
tify each Regional Administrator of (a) Phase 1—Diagnostic-feasibility stud-
the amount of funds targeted for each ies. Phase 1 awards of up to $100,000 per
Region through annual clean lakes pro- award (requiring a 30 percent non-Fed-
gram guidance. To assure an equitable eral share) are available to support di-
distribution of funds the targeted agnostic-feasibility studies (see appen-
amounts will be based on the clean dix A).
514
(b) Phase 2—Implementation. Phase 2 (i) Mandatory information.

awards (requiring a 50 percent non-Fed- (A) The legal name of the lake, res-
eral share) are available to support the ervoir, or pond.
implementation of pollution control (B) The location of the lake within
and/or in-lake restoration methods and the State, including the latitude and
procedures including final engineering longitude, in degrees, minutes, and sec-
design. onds of the approximate center of the
(c) Indian Tribes, eligible Indian Tribe. lake.
In either phase, the Regional Adminis- (C) A description of the physical
trator may increase the 50 and 70 per- characteristics of the lake, including
cent maximum Federal share for an el- its maximum depth (in meters); its
igible Indian Tribe based upon applica- mean depth (in meters); its surface
tion and demonstration by the Tribe area (in hectares); its volume (in cubic
that it does not have adequate funds meters); the presence or absence of
(including Federal funds authorized by stratified conditions; and major hydro-
statute to be used for matching pur- logic inflows and outflows.
poses, tribal funds or in-kind contribu- (D) A summary of available chemical
tions to meet the required match). In and biological data demonstrating the
no case shall the Federal share be past trends and current water quality
greater than 90 percent. of the lake.
[45 FR 7792, Feb. 5, 1980, as amended at 54 FR (E) A description of the type and
14359, Apr. 11, 1989; 59 FR 13817, Mar. 23, 1994] amount of public access to the lake,
and the public benefits that would be
§ 35.1620–2 Contents of applications. derived by implementing pollution con-
(a) All applications shall contain a trol and lake restoration procedures.
written State certification that the (F) A description of any recreational
project is consistent with State Water uses of the lake that are impaired due
Quality Management work program to degraded water quality. Indicate the
(see § 35.1513 of this subchapter) and the cause of the impairment, such as algae,
State Comprehensive Outdoor Recre- vascular aquatic plants, sediments, or
ation Plan (if completed). Additionally, other pollutants.
the State shall indicate the priority (G) A description of the local inter-
ranking for the particular project (see ests and fiscal resources committed to
§ 35.1620–5). restoring the lake.
(b) Phase 1 applications shall con- (H) A description of the proposed
tain: monitoring program to provide the in-
(1) A narrative statement describing formation required in appendix A para-
the specific procedures that will be graph (a)(10) of this section.
used by the recipient to conduct the di- (ii) Discretionary information.
agnostic-feasibility study including a States should submit this information
description of the public participation when available to assist EPA in review-
to be involved (see § 25.11 of this chap- ing the application.
ter); (A) A description of the lake water-
(2) A milestone schedule; shed in terms of size, land use (list
(3) An itemized cost estimate includ- each major land use classification as a
ing a justification for these costs; percentage of the whole), and the gen-
(4) A written certification from the eral topography, including major soil
appropriate areawide or State 208 plan- types.
ning agency that the proposed work (B) An identification of the major
will not duplicate work completed point source pollution discharges in
under any 208 planning grant, and that the watershed. If the sources are cur-
the applicant is proposing to use any rently controlled under the National
applicable approved 208 planning in the Pollutant Discharge Elimination Sys-
clean lakes project design; and tem (NPDES), include the permit num-
(5) For each lake being investigated, bers.
the information under paragraph (5)(i) (C) An estimate of the percent con-
of this paragraph (b) and, when avail- tribution of total nutrient and sedi-
able, the information under paragraph ment loading to the lake by the identi-
(5)(ii) of this paragraph (b). fied point sources.
515
§ 35.1620–3 40 CFR Ch. I (7–1–00 Edition)
(D) An indication of the major evant to these decisions, in fact sheet

nonpoint sources in the watershed. If or summary form, and distribute them
the sources are being controlled de- to the public at least 30 days before se-
scribe the control practice(s), including lecting a proposed method of lake res-
best land management practices. toration. Recipients shall hold a formal
(E) An indication of the lake restora- or informal meeting with the public
tion measures anticipated, including after all pertinent information is dis-
watershed management, and a projec- tributed, but before a lake restoration
tion of the net improvement in water method is selected. If there is signifi-
quality. cant public interest in the cooperative
(F) A statement of known or antici- agreement activity, an advisory group
pated adverse environmental impacts to study the process shall be formed in
resulting from lake restoration. accordance with the requirements of
(c) Phase 2 applications shall include: § 25.3(d)(4) of this chapter.
(1) The information specified in ap- (2) A formal public hearing shall be
pendix A in a diagnostic/feasibility held if the Phase 1 recipient selects a
study or its equivalent; lake restoration method that involves
(2) Certification by the appropriate major construction, dredging, or sig-
areawide or State 208 planning agencies nificant modifications to the environ-
that the proposed Phase 2 lake restora- ment, or if the recipient or the Re-
tion proposal is consistent with any ap- gional Administrator determines that
proved 208 planning; and a hearing would be beneficial.
(3) Copies of all issued permits or per- (c) Phase 2. (1) A summary of the re-
mit applications (including a summary cipient’s response to all public com-
of the status of applications) that are ments, along with copies of any writ-
required for the discharge of dredged or ten comments, shall be prepared and
fill material under section 404 of the submitted to EPA with a Phase 2 appli-
Act. cation.
(2) Where a proposed project has not
§ 35.1620–3 Environmental evaluation. been studied under a Phase 1 coopera-
Phase 2 applicants shall submit an tive agreement, the applicant for Phase
evaluation of the environmental im- 2 assistance shall provide an oppor-
pacts of the proposed project in accord- tunity for public consultation with
ance with the requirements in appendix adequate and timely notices before
A of this regulation. submitting an application to EPA. The
public shall be given the opportunity
§ 35.1620–4 Public participation. to discuss the proposed project, the al-
(a) General. (1) In accordance with ternatives, and any potentially adverse
this part and part 25 of this chapter, environmental impacts. A public hear-
the applicant shall provide for, encour- ing shall be held where the proposed
age, and assist public participation in project involves major construction,
developing a proposed lake restoration dredging or other significant modifica-
project. tion of the environment. The applicant
(2) Public consultation may be co- shall provide a summary of his re-
ordinated with related activities to en- sponses to all public comments and
hance the economy, the effectiveness, submit the summary, along with copies
and the timeliness of the effort, or to of any written comments, with the ap-
enhance the clarity of the issue. This plication.
procedure shall not discourage the
widest possible participation by the § 35.1620–5 State work programs and
public. lake priority lists.
(b) Phase 1. (1) Phase 1 recipients (a)(1) A State shall submit to the Re-
shall solicit public comment in devel- gional Administrator as part of its an-
oping, evaluating, and selecting alter- nual work program (§ 35.1513 of this
natives; in assessing potential adverse subchapter) a description of the activi-
environmental impacts; and in identities it will conduct during the Federal
fying measures to mitigate any adverse fiscal year to classify its lakes accord-
impacts that were identified. The re- ing to trophic condition (§ 35.1630) and
cipient shall provide information rel- to set priorities for implementing
516
clean lakes projects within the State. classification, according to trophic

The work plan must list in priority condition, of their publicly owned
order the cooperative agreement appli- freshwater lakes that are in need of
cations that will be submitted by the restoration or protection. After Decem-
State for Phase 1 and Phase 2 projects ber 31, 1981, States that have not com-
during the upcoming fiscal year, along plied with this requirement will not be
with the rationale used to establish eligible for Federal financial assistance
project priorities. Each State must under this subpart until they complete
also list the cooperative agreement ap- their survey.
plications, with necessary funding,
which it expects to submit in the fol- § 35.1640 Application review and eval-
lowing fiscal year. This information uation.
will assist EPA in targeting resources EPA will review applications as they
under § 35.1613. are received. EPA may request outside
(2) A State may petition the Regional review by appropriate experts to assist
Administrator by letter to modify the with technical evaluation. Funding de-
EPA approved priority list established cisions will be based on the merit of
under paragraph (a)(1) of this section. each application in accordance with
This may be done at any time if the the application review criteria under
State believes there is sufficient jus- § 35.1640–1. EPA will consider Phase 1
tification to alter the priority list con- applications separately from Phase 2
tained in its annual work program, applications.
e.g., if a community with a lower pri-
ority project has sufficient resources § 35.1640–1 Application review criteria.
available to provide the required (a) When evaluating applications,
matching funding while a higher pri- EPA will consider information supplied
ority project does not, or if new data by the applicant which address the fol-
indicates that a lower priority lake lowing criteria:
will have greater public benefit than a (1) The technical feasibility of the
higher priority lake. project, and where appropriate, the es-
(b) Clean lakes restoration priorities timated improvement in lake water
should be consistent with the State- quality.
wide water quality management strat- (2) The anticipated positive changes
egy (see § 35.1511–2 of this subchapter). that the project would produce in the
In establishing priorities on particular overall lake ecosystem, including the
lake restoration projects, States
watershed, such as the net reduction in
should use as criteria the application
sediment, nutrient, and other pollutant
review criteria (§ 35.1640–1) that EPA
loadings.
will use in preparing funding rec-
(3) The estimated improvement in
ommendations for specific projects. If a
fish and wildlife habitat and associated
State chooses to use different criteria,
beneficial effects on specific fish popu-
the State should indicate this to the
lations of sport and commercial spe-
Regional Administrator as part of the
cies.
annual work program.
(4) The extent of anticipated benefits
§ 35.1620–6 Intergovernmental review. to the public. EPA will consider such
factors as
EPA will not award funds under this (i) The degree, nature and sufficiency
subpart without review and consulta- of public access to the lake;
tion in accordance with the require- (ii) The size and economic structure
ments of Executive Order 12372, as im- of the population residing near the
plemented in 40 CFR part 29 of this lake which would use the improved
chapter. lake for recreational and other pur-
[48 FR 29302, June 24, 1983] poses;
(iii) The amount and kind of public
§ 35.1630 State lake classification sur- transportation available for transport
veys. of the public to and from the public ac-
States that wish to participate in the cess points;
clean lakes program shall establish and (iv) Whether other relatively clean
submit to EPA by January 1, 1982, a publicly owned freshwater lakes within
517
§ 35.1650 40 CFR Ch. I (7–1–00 Edition)
80 kilometer radius already adequately EPA Regional Administrator of any

serve the population; and funding decisions.
(v) Whether the restoration would (b) Applications that are disapproved
benefit primarily the owners of private can be submitted as new applications
land adjacent to the lake. to EPA if the State resolves the issues
(5) The degree to which the project identified during EPA review.
considers the ‘‘open space’’ policies
§ 35.1650–1 Project period.
contained in sections 201(f), 201(g), and
208(b)(2)(A) of the Act. (a) The project period for Phase 1
(6) The reasonableness of the pro- projects shall not exceed three years.
posed costs relative to the proposed (b) The project period for Phase 2
work, the likelihood that the project projects shall not exceed four years.
will succeed, and the potential public Implementation of complex projects
benefits. and projects incorporating major con-
(7) The means for controlling adverse struction may have longer project peri-
environmental impacts which would re- ods if approved by the Regional Admin-
sult from the proposed restoration of istrator.
the lake. EPA will give specific atten- § 35.1650–2 Limitations on awards.
tion to the environmental concerns
listed in section (c) of appendix A. (a) Before awarding assistance, the
(8) The State priority ranking for a Regional Administrator shall deter-
particular project. mine that:
(1) The applicant has met all of the
(9) The State’s operation and mainte- applicable requirements of § 35.1620 and
nance program to ensure that the pol- § 35.1630; and
lution control measures and/or in-lake (2) State programs under section 314
restorative techniques supported under of the Act are part of a State/EPA
the project will be continued after the Agreement which shall be completed
project is completed. before the project is awarded.
(b) For Phase 1 applications, the re- (b) Before awarding Phase 2 projects,
view criteria presented in paragraph (a) the Regional Administrator shall fur-
of this section will be modified in rela- ther determine that:
tion to the smaller amount of technical (1) When a Phase 1 project was
information and analysis that is avail- awarded, the final report prepared
able in the application. Specifically, under Phase 1 is used by the applicant
under criterion (a)(1), EPA will con- to apply for Phase 2 assistance. The
sider a technical assessment of the pro- lake restoration plan selected under
posed project approach to meet the re- the Phase 1 project must be imple-
quirements stated in appendix A to mented under a Phase 2 cooperative
this regulation. Under criterion (a)(4), agreement.
EPA will consider the degree of public (2) Pollution control measures in the
access to the lake and the public ben- lake watershed authorized by section
efit. Under criterion (a)(7), EPA will 201, included in an approved 208 plan, or
consider known or anticipated adverse required by section 402 of the Act have
environmental impacts identified in been completed or are being imple-
the application or that EPA can pre- mented according to a schedule that is
sume will occur. Criterion (a)(9) will included in an approved plan or dis-
not be considered. charge permit.
(3) The project does not include costs
§ 35.1650 Award. for controlling point source discharges
(a) Under 40 CFR 30.345, generally 90 of pollutants where those sources can
days after EPA has received a complete be alleviated by permits issued under
application, the application will either section 402 of the Act, or by the plan-
be: (1) Approved for funding in an ning and construction of wastewater
amount determined to be appropriate treatment facilities under section 201
for the project; (2) returned to the ap- of the Act.
plicant due to lack of funding; or (3) (4) The State has appropriately con-
disapproved. The applicant shall be sidered the ‘‘open space’’ policy pre-
promptly notified in writing by the sented in sections 201(f), 201(g)(6), and
518
208(b)(2)(A) of the Act in any waste- (1) The recipient must receive EPA
water management activities being im- project officer approval on any changes
plemented by them in the lake water- to satisfy the requirements of para-
shed. graph (a)(10) of appendix A before un-
(5)(i) The project does not include dertaking any other work under the
costs for harvesting aquatic vegeta- grant.
tion, or for chemical treatment to al- (2)(i) Before selecting the best alter-
leviate temporarily the symptoms of native for controlling pollution and
eutrophication, or for operating and improving the lake, as required in
maintaining lake aeration devices, or paragraph (b)(1) of appendix A of this
for providing similar palliative meth- regulation, and before undertaking any
ods and procedures, unless these proce- other work stated under paragraph (b)
dures are the most energy efficient or
of appendix A, the recipient shall sub-
cost effective lake restorative method.
mit an interim report to the project of-
(ii) Palliative approaches can be sup-
ficer. The interim report must include
ported only where pollution in the lake
watershed has been controlled to the a discussion of the various available al-
greatest practicable extent, and where ternatives and a technical justification
such methods and procedures are a nec- for the alternative that the recipient
essary part of a project during the will probably choose. The report must
project period. EPA will determine the include a summary of the public in-
eligibility of such a project, based on volvement and the comments that oc-
the applicant’s justification for the curred during the development of the
proposed restoration, the estimated alternatives.
time period for improved lake water (ii) The recipient must obtain EPA
quality, and public benefits associated project officer approval of the selected
with the restoration. alternative before conducting addi-
(6) The project does not include costs tional work under the project.
for desalinization procedures for natu- (c) Phase 2. Phase 2 projects are sub-
rally saline lakes. ject to the following conditions:
(7) The project does not include costs (1)(i) The State shall monitor the
for purchasing or long term leasing of project to provide data necessary to
land used solely to provide public ac- evaluate the efficiency of the project
cess to a lake. as jointly agreed to and approved by
(8) The project does not include costs the EPA project officer. The moni-
resulting from litigation against the toring program described in paragraph
recipient by EPA.
(b)(3) of appendix A of this regulation
(9) The project does not include costs
as well as any specific measurements
for measures to mitigate adverse envi-
that would be necessary to assess spe-
ronmental impacts that are not identi-
cific aspects of the project, must be
fied in the approved project scope of
work. (EPA may allow additional costs considered during the development of a
for mitigation after it has reevaluated monitoring program and schedule. The
the cost-effectiveness of the selected project recipient shall receive the ap-
alternative and has approved a request proval of the EPA project officer for a
for an increase from the recipient.) monitoring program and schedule to
satisfy the requirements of appendix A
§ 35.1650–3 Conditions on award. paragraph (b)(3) before undertaking
(a) All awards. (1) All assistance any other work under the project.
awarded under the Clean Lakes pro- (ii) Phase 2 projects shall be mon-
gram is subject to the EPA General itored for at least one year after con-
Grant conditions (subpart C and appen- struction or pollution control practices
dix A of part 30 of this chapter). are completed.
(2) For each clean lakes project the (2) The State shall manage and main-
State agrees to pay or arrange the pay- tain the project so that all pollution
ment of the non-Federal share of the control measures supported under the
project costs. project will be continued during the
(b) Phase 1. Phase 1 projects are sub- project period at the same level of effi-
ject to the following conditions: ciency as when they were implemented.
519
§ 35.1650–4 40 CFR Ch. I (7–1–00 Edition)
The State will provide reports regard- § 35.1650–5 Allowable costs.

ing project maintenance as required in (a) The State will be paid under
the cooperative agreement. § 35.1650–4 for the Federal share of all
(3) The State shall upgrade its water necessary costs within the scope of the
quality standards to reflect a higher approved project and determined to be
water quality use classification if the allowable under 40 CFR 30.705, the pro-
higher water quality use was achieved visions of this subpart, and the cooper-
as a result of the project (see 40 CFR ative agreement.
35.1550(c)(2)). (b) Costs for restoring lakes used
(4) If an approved project allows pur- solely for drinking water supplies are
chases of equipment for lake mainte- not allowable under the Clean Lakes
nance, such as weed harvesters, aer- Program.
ation equipment, and laboratory equip-
ment, the State shall maintain and op- § 35.1650–6 Reports.
erate the equipment according to an (a) States with Phase 1 projects shall
approved lake maintenance plan for a submit semi-annual progress reports
period specified in the cooperative (original and one copy) to the EPA
agreement. In no case shall that period project officer within 30 days after the
be for less than the time it takes to end of every other standard quarter.
completely amortize the equipment. Standard quarters end on March 31,
(5) If primary adverse environmental June 30, September 30, and December
impacts result from implementing ap- 31. These reports shall include the fol-
proved lake restoration or protection lowing:
procedures, the State shall include (1) Work progress relative to the
measures to mitigate these adverse im- milestone schedule, and difficulties en-
pacts at part of the work under the countered during the previous six
project. months.
(6) If adverse impacts could result to (2) A brief discussion of the project
unrecorded archeological sites, the findings appropriate to the work con-
State shall stop work or modify work ducted during the previous six months.
plans to protect these sites in accord- (3) A report of expenditures in the
ance with the National Historic Preser- past six months and those anticipated
vation Act. (EPA may allow additional in the next six months.
costs for ensuring proper protection of (b) Phase 2. States with Phase 2
unrecorded archeological sites in the projects shall submit progress reports
project area after reevaluating the cost (original and one copy) according to
the schedule established in the cooper-
effectiveness of the procedures and ap-
ative agreement. The frequency of
proving a request for a cost increase
Phase 2 project progress reports shall
from the recipient.)
be determined by the size and com-
(7) If a project involves construction plexity of the project, and shall be re-
or dredging that requires a section 404 quired no more frequently than quar-
permit for the discharge of dredged or terly. The Phase 2 progress report shall
fill material, the recipient shall obtain contain all of the information required
the necessary section 404 permits be- for Phase 1 progress reports indicated
fore performing any dredge or fill in paragraph (a) of this section. This
work. report also must include water quality
monitoring data and a discussion of the
§ 35.1650–4 Payment.
changes in water quality which appear
(a) Under § 30.615 of this chapter, EPA to have resulted from the lake restora-
generally will make payments through tion activities implemented during the
letter of credit. However, the Regional reporting period.
Administrator may place any recipient (c) Final Report. States shall prepare
on advance payment or on cost reim- a final report for all grants in accord-
bursement, as necessary. ance with § 30.635–2 of this subchapter.
(b) Phase 2 projects involving con- Phase 1 reports shall be organized ac-
struction of facilities or dredging and cording to the outline of information
filling activities shall be paid by reim- requirements stated in appendix A. All
bursement. water quality data obtained under the
520
Environmental Protection Agency Pt. 35, Subpt. H, App. A
grant shall be submitted in the final (6) An explanation, if a particular segment

report. Phase 2 reports shall conform of the lake user population is or will be more
adversely impacted by lake degradation.
to the format presented in the EPA
(7) A statement regarding the water use of
manual on ‘‘Scientific and Technical the lake compared to other lakes within a 80
Publications,’’ May 14, 1974, as revised kilometer radius.
or updated. The States shall submit (8) An itemized inventory of known point
the report within 90 days after the source pollution discharges affecting or
project is completed. which have affected lake water quality over
the past 5 years, and the abatement actions
(d) Financial Status Report. Within 90 for these discharges that have been taken, or
days after the end of each budget pe- are in progress. If corrective action for the
riod, the grantee shall submit to the pollution sources is contemplated in the fu-
Regional Administrator an annual re- ture, the time period should be specified.
port of all expenditures (Federal and (9) A description of the land uses in the
non–Federal) which accrued during the lake watershed, listing each land use classi-
fication as a percentage of the whole and dis-
budget period. Beginning in the second cussing the amount of nonpoint pollutant
quarter of any succeeding budget pe- loading produced by each category.
riod, payments may be withheld under (10) A discussion and analysis of historical
§ 30.615–3 of this chapter until this re- baseline limnological data and one year of
port is received. current limnological data. The monitoring
schedule presented in paragraph (b)(3) of ap-
APPENDIX A TO SUBPART H—REQUIRE- pendix A must be followed in obtaining the
one year of current limnological data. This
MENTS FOR DIAGNOSTIC-FEASIBILITY
presentation shall include the present troph-
STUDIES AND ENVIRONMENTAL EVAL- ic condition of the lake as well as its surface
UATIONS area (hectares), maximum depth (meters),
average depth (meters), hydraulic residence
Phase 1 clean lakes projects shall include time, the area of the watershed draining to
in their scope of work at least the following the lake (hectares), and the physical, chem-
requirements, preferably in the order pre- ical, and biological quality of the lake and
sented and under appropriate subheadings. important lake tributary waters. Bathy-
The information required by paragraph metric maps should be provided. If dredging
(a)(10) and the monitoring procedures stated is expected to be included in the restoration
in paragraph (b)(3) of this appendix may be activities, representative bottom sediment
modified to conform to specific project re- core samples shall be collected and analyzed
quirements to reduce project costs without using methods approved by the EPA project
jeopardizing adequacy of technical informa- officer for phosphorus, nitrogen, heavy met-
tion or the integrity of the project. All modi- als, other chemicals appropriate to State
fications must be approved by the EPA water quality standards, and persistent syn-
project officer as specified in §§ 35.1650–3(b)(1) thetic organic chemicals where appropriate.
and 35.1650–3(c)(1). Further, the elutriate must be subjected to
(a) A diagnostic study consisting of: test procedures developed by the U.S. Army
(1) An identification of the lake to be re- Corps of Engineers and analyzed for the same
stored or studied, including the name, the constituents. An assessment of the phos-
State in which it is located, the location phorus (and nitrogen when it is the limiting
within the State, the general hydrologic re- lake nutrient) inflows and outflows associ-
lationship to associated upstream and down- ated with the lake and a hydraulic budget in-
cluding ground water flow must be included.
stream waters and the approved State water
Vertical temperature and dissolved oxygen
quality standards for the lake.
data must be included for the lake to deter-
(2) A geological description of the drainage
mine if the hypolimnion becomes anaerobic
basin including soil types and soil loss to and, if so, for how long and over what extent
stream courses that are tributary to the of the bottom. Total and soluble reactive
lake. phosphorus (P); and nitrite, nitrate, ammo-
(3) A description of the public access to the nia and organic nitrogen (N) concentrations
lake including the amount and type of public must be determined for the lake. Chlorophyll
transportation to the access points. a values should be measured for the upper
(4) A description of the size and economic mixing zone. Representative alkalinities
structure of the population residing near the should be determined. Algal assay bottle test
lake which would use the improved lake for data or total N to total P ratios should be
recreation and other purposes. used to define the growth limiting nutrient.
(5) A summary of historical lake uses, in- The extent of algal blooms, and the predomi-
cluding recreational uses up to the present nant algal genera must be discussed. Algal
time, and how these uses may have changed biomass should be determined through algal
because of water quality degradation. genera identification, cell density counts
521
Pt. 35, Subpt. H, App. A 40 CFR Ch. I (7–1–00 Edition)
(numbers of cells per milliliter) and con- properties of the lake, preferably the deepest
verted to cell volume based on factors de- point in the lake. Additional sampling sites
rived from direct measurements; and re- may be warranted in cases where lake basin
ported in biomass of each major genus iden- morphometry creates distinctly different hy-
tified. Secchi disk depth and suspended sol- drologic and limnologic sub-basins; or where
ids should be measured and reported. The major lake tributaries adversely affect lake
portion of the shoreline and bottom that is water quality. The sampling schedule may be
impacted by vascular plants (submersed, shifted according to seasonal differences at
floating, or emersed higher aquatic vegeta- various latitudes. The biweekly samples
tion) must be estimated, specifically the must be scheduled to coincide with the pe-
lake surface area between 0 and the 10 meter riod of elevated biological activity. If pos-
depth contour or twice the Secchi disk trans- sible, a set of samples should be collected
parency depth, whichever is less, and that es- immediately following spring turnover of the
timate should include an identification of lake. Samples must be collected between 0800
the predominant species. Where a lake is and 1600 hours of each sampling day unless
subject to significant public contact use or is diel studies are part of the monitoring pro-
fished for consumptive purposes, monitoring gram. Samples must be collected between
for public health reasons should be part of one-half meter below the surface and one-
the monitoring program. Standard bacterio- half meter off the bottom, and must be col-
logical analyses and fish flesh analyses for lected at intervals of every one and one-half
organic and heavy metal contamination meters, or at six equal depth intervals,
should be included.
whichever number of samples is less. Collec-
(11) An identification and discussion of the
tion and analyses of all samples must be con-
biological resources in the lake, such as fish
ducted according to EPA approved methods.
population, and a discussion of the major
All of the samples collected must be ana-
known ecological relationships.
lyzed for total and soluble reactive phos-
(b) A feasibility study consisting of:
phorus; nitrite, nitrate, ammonia, and or-
(1) An identification and discussion of the
alternatives considered for pollution control ganic nitrogen; pH; temperature; and dis-
or lake restoration and an identification and solved oxygen. Representative alkalinities
justification of the selected alternative. This should be determined. Samples collected in
should include a discussion of expected water the upper mixing zone must be analyzed for
quality improvement, technical feasibility, chlorophyll a. Algal biomass in the upper
and estimated costs of each alternative. The mixing zone should be determined through
discussion of each feasible alternative and algal genera identification, cell density
the selected lake restoration procedure must counts (number of cells per milliliter) and
include detailed descriptions specifying ex- converted to cell volume based on factors de-
actly what activities would be undertaken rived from direct measurements; and re-
under each, showing how and where these ported in terms of biomass of each major
procedures would be implemented, illus- genera identified. Secchi disk depth and sus-
trating the engineering specifications that pended solids must be measured at each sam-
would be followed including preliminary en- pling period. The surface area of the lake
gineering drawings to show in detail the con- covered by macrophytes between 0 and the 10
struction aspects of the project, and pre- meter depth contour or twice the Secchi disk
senting a quantitative analysis of the pollu- transparency depth, whichever is less, must
tion control effectiveness and the lake water be reported. The monitoring program for
quality improvement that is anticipated. each clean lakes project must include all the
(2) A discussion of the particular benefits required information mentioned above, in
expected to result from implementing the addition to any specific measurements that
project, including new public water uses that are found to be necessary to assess certain
may result from the enhanced water quality. aspects of the project. Based on the informa-
(3) A Phase 2 monitoring program indi- tion supplied by the Phase 2 project appli-
cating the water quality sampling schedule. cant and the technical evaluation of the pro-
A limited monitoring program must be posal, a detailed monitoring program for
maintained during project implementation, Phase 2 will be established for each approved
particularly during construction phases or project and will be a condition of the cooper-
in-lake treatment, to provide sufficient data ative agreement. Phase 2 projects will be
that will allow the State and the EPA monitored for at least one year after con-
project officer to redirect the project if nec- struction or pollution control practices are
essary, to ensure desired objectives are completed to evaluate project effectiveness.
achieved. During pre-project, implementa- (4) A proposed milestone work schedule for
tion, and post-project monitoring activities, completing the project with a proposed budg-
a single in-lake site should be sampled et and a payment schedule that is related to
monthly during the months of September the milestone.
through April and biweekly during May (5) A detailed description of how non-Fed-
through August. This site must be located in eral funds will be obtained for the proposed
an area that best represents the limnological project.
522
Environmental Protection Agency Pt. 35, Subpt. H, App. A
(6) A description of the relationship of the couraged to address other considerations
proposed project to pollution control pro- which they believe apply to their project.
grams such as the section 201 construction (1) Will the proposed project displace any
grants program, the section 208 areawide people?
wastewater management program, the De- (2) Will the proposed project deface exist-
partment of Agriculture Soil Conservation ing residences or residential areas? What
Service and Agriculture Stabilization and mitigative actions such as landscaping,
Conservation Service programs, the Depart- screening, or buffer zones have been consid-
ment of Housing and Urban Development ered? Are they included?
block grant program, the Department of In- (3) Will the proposed project be likely to
terior Heritage Conservation and Recreation lead to a change in established land use pat-
Service programs and any other local, State, terns, such as increased development pres-
regional and Federal programs that may be sure near the lake? To what extent and how
related to the proposed project. Copies of any will this change be controlled through land
pertinent correspondence, contracts, grant use planning, zoning, or through other meth-
applications and permits associated with ods?
these programs should be provided to the (4) Will the proposed project adversly af-
EPA project officer. fect a significant amount of prime agricul-
(7) A summary of public participation in tural land or agricultural operations on such
developing and assessing the proposed land?
project which is in compliance with part 25 (5) Will the proposed project result in a sig-
of this chapter. The summary shall describe nificant adverse effect on parkland, other
the matters brought before the public, the public land, or lands of recognized scenic
measures taken by the reporting agency to value?
meet its responsibilities under part 25 and (6) Has the State Historical Society or
related provisions elsewhere in this chapter, State Historical Preservation Officer been
the public response, and the agency’s re- contacted? Has he responded, and if so, what
sponse to significant comments. Section 25.8 was the nature of that response? Will the
responsiveness summaries may be used to proposed project result in a significant ad-
meet appropriate portions of these require- versely effect on lands or structures of his-
ments to avoid duplication. toric, architectural, archaeological or cul-
(8) A description of the operation and tural value?
maintenance plan that the State will follow, (7) Will the proposed project lead to a sig-
including the time frame over which this nificant long-range increase in energy de-
plan will be operated, to ensure that the pol- mands?
lution controls implemented during the (8) Will the proposed project result in sig-
project are continued after the project is nificant and long range adverse changes in
completed. ambient air quality or noise levels? Short
(9) Copies of all permits or pending permit term?
applications (including the status of such ap- (9) If the proposed project involves the use
plications) necessary to satisfy the require- of in-lake chemical treatment, what long
ments of section 404 of the Act. If the ap- and short term adverse effects can be ex-
proved project includes dredging activities pected from that treatment? How will the
or other activities requiring permits, the project recipient mitigate these effects?
State must obtain from the U.S. Army Corps (10) Does the proposal contain all the infor-
of Engineers or other agencies the permits mation that EPA requires in order to deter-
required for the discharge of dredged or fill mine whether the project complies with Ex-
material under section 404 of the Act or ecutive Order 11988 on floodplains? Is the
other Federal, State or local requirements. proposed project located in a floodplain? If
Should additional information be required to so, will the project involve construction of
obtain these permits, the State shall provide structures in the floodplain? What steps will
it. Copies of section 404 permit applications be taken to reduce the possible effects of
and any associated correspondence must be flood damage to the project?
provide to the EPA project officer at the (11) If the project involves physically modi-
time they are submitted to the U.S. Army fying the lake shore or its bed or its water-
Corps of Engineers. After reviewing the 404 shed, by dredging, for example, what steps
permit application, the project officer may will be taken to minimize any immediate
provide recommendations for appropriate and long term adverse effects of such activi-
controls and treatment of supernatant de- ties? When dredging is employed, where will
rived from dredged material disposal sites to the dredged material be deposited, what can
ensure the maximum effectiveness of lake be expected and what measures will the re-
restoration procedures. cipient employ to minimize any significant
(c) States shall complete and submit an en- adverse impacts from its deposition?
vironmental evaluation which considers the (12) Does the project proposal contain all
questions listed below. In many cases the information that EPA requires in order to
questions cannot be satisfactorily answered determine whether the project complies with
with a mere ‘‘Yes’’ or ‘‘No’’. States are en- Executive Order 11990 on wetlands? Will the
523
§ 35.2000 40 CFR Ch. I (7–1–00 Edition)
proposed project have a significant adverse struction grants program in response
effect on fish and wildlife, or on wetlands or to Congressional action and executive
any other wildife habitat, especially those of orders.
endangered species? How significant is this
impact in relation to the local or regional (c) EPA’s policy is to delegate admin-
critical habitat needs? Have actions to miti- istration of the construction grants
gate habitat destruction been incorporated program on individual projects to
into the project? Has the recipient properly State agencies to the maximum extent
consulted with appropriate State and Fed- possible (see subpart F). Throughout
eral fish, game and wildlife agencies and this subpart we have used the term Re-
with the U.S. Fish and Wildlife Service?
gional Administrator. To the extent
What were their replies?
(13) Describe any feasible alternatives to that the Regional Administrator dele-
the proposed project in terms of environ- gates review of projects for compliance
mental impacts, commitment of resources, with the requirements of this subpart
public interest and costs and why they were to a State agency under a delegation
not proposed. agreement (§ 35.1030), the term Regional
(14) Describe other measures not discussed Administrator may be read State agen-
previously that are necessary to mitigate ad-
cy. This paragraph does not affect the
verse environmental impacts resulting from
the implementation of the proposed project. rights of citizens, applicants or grant-
ees provided in subpart F.
(d) In accordance with the Federal
Subpart I—Grants for Construction Grant and Cooperative Agreement Act
of Treatment Works (Pub. L. 95–224) EPA will, when sub-
stantial Federal involvement is antici-
AUTHORITY: Secs. 101(e), 109(b), 201 through pated, award assistance under coopera-
205, 207, 208(d), 210 through 212, 215 through tive agreements. Throughout this sub-
219, 304(d)(3), 313, 501, 502, 511 and 516(b) of the
part we have used the terms grant and
Clean Water Act, as amended, 33 U.S.C. 1251
et seq. grantee but those terms may be read
cooperative agreement and recipient if
SOURCE: 49 FR 6234, Feb. 17, 1984, unless appropriate.
otherwise noted.
(e) From time to time EPA publishes
§ 35.2000 Purpose and policy. technical and guidance materials on
various topics relevant to the construc-
(a) The primary purpose of Federal tion grants program. Grantees may
grant assistance available under this find this information useful in meeting
subpart is to assist municipalities in requirements in this subpart. These
meeting enforceable requirements of publications, including the MCD and
the Clean Water Act, particularly, ap- FRD series, may be ordered from: EPA,
plicable National Pollutant Discharge 401 M St. SW., room 1115 ET, WH 547,
Elimination System (NPDES) permit Washington, DC 20460. In order to expe-
requirements. dite processing of requests, persons
(b) This subpart supplements EPA’s wishing to obtain these publications
Uniform Relocation and Real Property should request a copy of EPA form
Acquisition Policies Act regulation 7500–21 (the order form listing all avail-
(part 4 of this chapter), its National able publications), from EPA Head-
Environmental Policy Act (NEPA) reg- quarters, Municipal Construction Divi-
ulation (part 6 of this chapter), its pub- sion (WH–547) or from any EPA Re-
lic participation regulation (part 25 of gional Office.
this chapter), its intergovernmental re-
view regulation (part 29 of this chap- § 35.2005 Definitions.
ter), its general grant regulation (part
30 of this chapter), its debarment regu- (a) Words and terms not defined
lation (part 32 of this chapter), and its below shall have the meaning given to
procurement under assistance regula- them in 40 CFR parts 30 and 33.
tion (part 33 of this chapter), and es- (b) As used in this subpart, the fol-
tablishes requirements for Federal lowing words and terms mean:
grant assistance for the building of (1) Act. The Clean Water Act (33
wastewater treatment works. EPA may U.S.C. 1251 et seq., as amended).
also find it necessary to publish other (2) Ad valorem tax. A tax based upon
requirements applicable to the con- the value of real property.
524
(3) Allowance. An amount based on a niques for Best Practicable Waste

percentage of the project’s allowable Treatment (treatment and discharge,
building cost, computed in accordance land application techniques and utili-
with appendix B. zation practices, and reuse).
(4) Alternative technology. Proven (8) Building. The erection, acquisi-
wastewater treatment processes and tion, alteration, remodeling, improve-
techniques which provide for the re- ment or extension of treatment works.
claiming and reuse of water, produc- (9) Building completion. The date when
tively recycle wastewater con- all but minor components of a project
stitutuents or otherwise eliminate the have been built, all equipment is oper-
discharge of pollutants, or recover en- ational and the project is capable of
ergy. Specifically, alternative tech- functioning as designed.
nolgy includes land application of ef- (10) Collector sewer. The common lat-
fluent and sludge; aquifer recharge; eral sewers, within a publicly owned
aquaculture; direct reuse (non-pota- treatment system, which are primarily
ble); horticulture; revegetation of dis- installed to receive wastewaters di-
turbed land; containment ponds; sludge rectly from facilities which convey
composting and drying prior to land wastewater from individual systems, or
application; self-sustaining inciner- from private property, and which in-
ation; and methane recovery. clude service ‘‘Y’’ connections designed
(5) Alternative to conventional treat- for connection with those facilities in-
ment works for a small community. For cluding:
purposes of §§ 35.2020 and 35.2032, alter- (i) Crossover sewers connecting more
native technology used by treatment than one property on one side of a
works in small communities include al- major street, road, or highway to a lat-
ternative technologies defined in para- eral sewer on the other side when more
graph (b)(4), as well as, individual and cost effective than parallel sewers; and
onsite systems; small diameter grav- (ii) Except as provided in paragraph
ity, pressure or vacuum sewers con- (b)(10)(iii) of this section, pumping
veying treated or partially treated units and pressurized lines serving in-
wastewater. These systems can also individual structures or groups of struc-
clude small diameter gravity sewers tures when such units are cost effective
carrying raw wastewater to cluster and are owned and maintained by the
systems. grantee.
(6) Architectural or engineering serv- (iii) This definition excludes other fa-
ices. Consultation, investigations, re- cilities which convey wastewater from
ports, or services for design-type individual structures, from private
projects within the scope of the prac- property to the public lateral sewer, or
tice of architecture or professional en- its equivalent and also excludes facili-
gineering as defined by the laws of the ties associated with alternatives to
State or territory in which the grantee conventional treatment works in small
is located. communities.
(7) Best Practicable Waste Treatment (11) Combined sewer. A sewer that is
Technology (BPWTT). The cost-effective designed as a sanitary sewer and a
technology that can treat wastewater, storm sewer.
combined sewer overflows and non- (12) Complete waste treatment system. A
excessive infiltration and inflow in complete waste treatment system con-
publicly owned or individual waste- sists of all the treatment works nec-
water treatment works, to meet the essary to meet the requirements of
applicable provisions of: title III of the Act, involving: (i) The
(i) 40 CFR part 133—secondary treat- transport of wastewater from indi-
ment of wastewater; vidual homes or buildings to a plant or
(ii) 40 CFR part 125, subpart G—ma- facility where treatment of the waste-
rine discharge waivers; water is accomplished; (ii) the treat-
(iii) 40 CFR 122.44(d)—more stringent ment of the wastewater to remove pol-
water quality standards and State lutants; and (iii) the ultimate disposal,
standards; or including recycling or reuse, of the
(iv) 41 FR 6190 (February 11, 1976)— treated wastewater and residues which
Alternative Waste Management Tech- result from the treatment process.
525
§ 35.2005 40 CFR Ch. I (7–1–00 Edition)
(13) Construction. Any one or more of which prevent the funding of a prom-
the following: Preliminary planning to ising improvement in innovative or al-
determine the feasibility of treatment ternative treatment technology.
works, engineering, architectural, (18) Individual systems. Privately
legal, fiscal, or economic investiga- owned alternative wastewater treat-
tions or studies, surveys, designs, ment works (including dual waterless/
plans, working drawings, specifica- gray water systems) serving one or
tions, procedures, field testing of inno- more principal residences, or small
vative or alternative wastewater treat- commercial establishments. Normally
ment processes and techniques (exclud- these are onsite systems with localized
ing operation and maintenance) meet- treatment and disposal of wastewater,
ing guidelines promulgated under sec- but may be systems utilizing small di-
tion 304(d)(3) of the Act, or other nec- ameter gravity, pressure or vacuum
essary actions, erection, building, ac- sewers conveying treated or partially
quisition, alteration, remodeling, im- treated wastewater. These systems can
provement, or extension of treatment also include small diameter gravity
works, or the inspection or supervision sewers carrying raw wastewater to
of any of the foregoing items. cluster systems.
(14) Conventional technology. Waste- (19) Industrial user. Any nongovern-
water treatment processes and tech- mental, nonresidential user of a pub-
niques involving the treatment of licly owned treatment works which is
wastewater at a centralized treatment identified in the Standard Industrial
plant by means of biological or phys- Classification Manual, 1972, Office of
ical/chemical unit processes followed Management and Budget, as amended
by direct point source discharge to sur- and supplemented, under one of the fol-
face waters. lowing divisions:
(15) Enforceable requirements of the Division A. Agriculture, Forestry, and Fish-
Act. Those conditions or limitations of ing
section 402 or 404 permits which, if vio- Division B. Mining
lated, could result in the issuance of a Division D. Manufacturing
compliance order or initiation of a Division E. Transportation, Communications,
civil or criminal action under section Electric, Gas, and Sanitary Services
309 of the Act or applicable State laws. Division I. Services
If a permit has not been issued, the (20) Infiltration. Water other than
term shall include any requirement wastewater that enters a sewer system
which, in the Regional Administrator’s (including sewer service connections
judgment, would be included in the per- and foundation drains) from the ground
mit when issued. Where no permit ap- through such means as defective pipes,
plies, the term shall include any re- pipe joints, connections, or manholes.
quirement which the Regional Admin- Infiltration does not include, and is
istrator determines is necessary for the distinguished from, inflow.
best practicable waste treatment tech- (21) Inflow. Water other than waste-
nology to meet applicable criteria. water that enters a sewer system (in-
(16) Excessive infiltration/inflow. The cluding sewer service connections)
quantities of infiltration/inflow which from sources such as, but not limited
can be economically eliminated from a to, roof leaders, cellar drains, yard
sewer system as determined in a cost- drains, area drains, drains from springs
effectiveness analysis that compares and swampy areas, manhole covers,
the costs for correcting the infiltra- cross connections between storm sew-
tion/inflow conditions to the total ers and sanitary sewers, catch basins,
costs for transportation and treatment cooling towers, storm waters, surface
of the infiltration/inflow. (See runoff, street wash waters, or drainage.
§§ 35.2005(b) (28) and (29) and 35.2120.) Inflow does not include, and is distin-
(17) Field testing. Practical and gen- guished from, infiltration.
erally small-scale testing of innovative (22) Initiation of operation. The date
or alternative technologies directed to specified by the grantee on which use
verifying performance and/or refining of the project begins for the purpose for
design parameters not sufficiently test- which it was planned, designed, and
ed to resolve technical uncertainties built.
526
(23) Innovative technology. Developed having jurisdiction over disposal of

wastewater treatment processes and sewage, industrial wastes, or other
techniques which have not been fully waste, or a designated and approved
proven under the circumstances of management agency under section 208
their contemplated use and which rep- of the Act.
resent a significant advancement over (i) This definition includes a special
the state of the art in terms of signifi- district created under State law such
cant reduction in life cycle cost or sig- as a water district, sewer district, sani-
nificant environmental benefits tary district, utility district, drainage
through the reclaiming and reuse of district or similar entity or an inte-
water, otherwise eliminating the dis-
grated waste management facility, as
charge of pollutants, utilizing recy-
defined in section 201(e) of the Act,
cling techniques such as land treat-
ment, more efficient use of energy and which has as one of its principal re-
resources, improved or new methods of sponsibilities the treatment, transport,
waste treatment management for com- or disposal of domestic wastewater in a
bined municipal and industrial sys- particular geographic area.
tems, or the confined disposal of pol- (ii) This definition excludes the fol-
lutants so that they will not migrate lowing:
to cause water or other environmental (A) Any revenue producing entity
pollution. which has as its principal responsi-
(24) Interceptor sewer. A sewer which bility an activity other than providing
is designed for one or more of the fol- wastewater treatment services to the
lowing purposes: general public, such as an airport,
(i) To intercept wastewater from a turnpike, port facility or other munic-
final point in a collector sewer and ipal utility.
convey such wastes directly to a treat- (B) Any special district (such as
ment facility or another interceptor. school district or a park district) which
(ii) To replace an existing wastewater has the responsibility to provide waste-
treatment facility and transport the water treatment services in support of
wastes to an adjoining collector sewer
its principal activity at specific facili-
or interceptor sewer for conveyance to
ties, unless the special district has the
a treatment plant.
(iii) To transport wastewater from responsibility under State law to pro-
one or more municipal collector sewers vide wastewater treatment services to
to another municipality or to a re- the community surrounding the special
gional plant for treatment. district’s facility and no other munici-
(iv) To intercept an existing major pality, with concurrent jurisdiction to
discharge of raw or inadequately treat- serve the community, serves or intends
ed wastewater for transport directly to to serve the special district’s facility
another interceptor or to a treatment or the surrounding community.
plant. (28) Nonexcessive infiltration. The
(25) Interstate agency. An agency of quantity of flow which is less than 120
two or more States established under gallons per capita per day (domestic
an agreement or compact approved by base flow and infiltration) or the quan-
the Congress, or any other agency of tity of infiltration which cannot be
two or more States, having substantial economically and effectively elimi-
powers or duties pertaining to the con- nated from a sewer system as deter-
trol of water pollution. mined in a cost-effectiveness analysis.
(26) Marine bays and estuaries. Semi- (See §§ 35.2005(b)(16) and 35.2120.)
enclosed coastal waters which have a (29) Nonexcessive inflow. The max-
free connection to the territorial sea. imum total flow rate during storm
(27) Municipality. A city, town, bor-
events which does not result in chronic
ough, county, parish, district, associa-
operational problems related to hy-
tion, or other public body (including an
intermunicipal agency of two or more draulic overloading of the treatment
of the foregoing entities) created under works or which does not result in a
State law, or an Indian tribe or an au- total flow of more than 275 gallons per
thorized Indian tribal organization, capita per day (domestic base flow plus
527
§ 35.2005 40 CFR Ch. I (7–1–00 Edition)
infiltration plus inflow). Chronic oper- operation and certification of the

ational problems may include sur- project.
charging, backups, bypasses, and over- (36) Replacement. Obtaining and in-
flows. (See §§ 35.2005(b)(16) and 35.2120). stalling equipment, accessories, or ap-
(30) Operation and Maintenance. Ac- purtenances which are necessary dur-
tivities required to assure the depending the design or useful life, whichever
able and economical function of treat- is longer, of the treatment works to
ment works. maintain the capacity and performance
(i) Maintenance: Preservation of func- for which such works were designed
tional integrity and efficiency of equip- and constructed.
ment and structures. This includes pre- (37) Sanitary sewer. A conduit in-
ventive maintenance, corrective main- tended to carry liquid and water-car-
tenance and replacement of equipment ried wastes from residences, commer-
(See § 35.2005(b)(36)) as needed.) cial buildings, industrial plants and in-
(ii) Operation: Control of the unit stitutions together with minor quan-
processes and equipment which make tities of ground, storm and surface wa-
up the treatment works. This includes ters that are not admitted inten-
financial and personnel management; tionally.
records, laboratory control, process (38) Services. A contractor’s labor,
control, safety and emergency oper- time or efforts which do not involve
ation planning. the delivery of a specific end item,
(31) Principal residence. For the pur- other than documents (e.g., reports, de-
poses of § 35.2034, the habitation of a sign drawings, specifications). This
family or household for at least 51 per- term does not include employment
cent of the year. Second homes, vaca- agreements or collective bargaining
tion or recreation residences are not agreements.
included in this definition. (39) Small commercial establishments.
(32) Project. The activities or tasks For purposes of § 35.2034 private estab-
the Regional Administrator identifies lishments such as restaurants, hotels,
in the grant agreement for which the stores, filling stations, or recreational
grantee may expend, obligate or com- facilities and private, nonprofit enti-
mit funds. ties such as churches, schools, hos-
(33) Project performance standards. The pitals, or charitable organizations with
performance and operations require- dry weather wastewater flows less than
ments applicable to a project including 25,000 gallons per day.
the enforceable requirements of the (40) Small Community. For purposes of
Act and the specifications, including §§ 35.2020(b) and 35.2032, any munici-
the quantity of excessive infiltration pality with a population of 3,500 or less
and inflow proposed to be eliminated, or highly dispersed sections of larger
which the project is planned and de- municipalities, as determined by the
signed to meet. Regional Administrator.
(34) Priority water quality areas. For (41) State. A State, the District of Co-
the purposes of § 35.2015, specific stream lumbia, the Commonwealth of Puerto
segments or bodies of water, as deter- Rico, the Virgin Islands, Guam, Amer-
mined by the State, where municipal ican Samoa, the Trust Territory of the
discharges have resulted in the impair- Pacific Islands, and the Commonwealth
ment of a designated use or significant of the Northern Marianas. For the pur-
public health risks, and where the re- poses of applying for a grant under sec-
duction of pollution from such dis- tion 201(g)(1) of the act, a State (in-
charges will substantially restore sur- cluding its agencies) is subject to the
face or groundwater uses. limitations on revenue producing enti-
(35) Project schedule. A timetable ties and special districts contained in
specifying the dates of key project § 35.2005(b)(27)(ii).
events including public notices of (42) State agency. The State agency
proposed procurement actions, sub- designated by the Governor having re-
agreement awards, issuance of notice sponsibility for administration of the
to proceed with building, key mile- construction grants program under sec-
stones in the building schedule, tion 205(g) of the Act.
completion of building, initiation of (43) Step 1. Facilities planning.
528
(44) Step 2. Preparation of design not in and of itself, result in an oper-

drawings and specifications. able treatment works.
(45) Step 3. Building of a treatment (51) Useful life. The period during
works and related services and sup- which a treatment works operates.
plies. (Not ‘‘design life’’ which is the period
(46) Step 2=3. Design and building of a during which a treatment works is
treatment works and building related planned and designed to be operated.)
services and supplies. (52) User charge. A charge levied on
(47) Step 7. Design/building of treat- users of a treatment works, or that
ment works wherein a grantee awards portion of the ad valorem taxes paid by
a single contract for designing and a user, for the user’s proportionate
building certain treatment works. share of the cost of operation and
(48) Storm sewer. A sewer designed to maintenance (including replacement)
carry only storm waters, surface run- of such works under sections
off, street wash waters, and drainage. 204(b)(1)(A) and 201(h)(2) of the Act and
(49) Treatment works. Any devices and this subpart.
systems for the storage, treatment, re- (53) Value engineering. A specialized
cycling, and reclamation of municipal cost control technique which uses a
sewage, domestic sewage, or liquid in- systematic and creative approach to
dustrial wastes used to implement sec- identify and to focus on unnecessarily
tion 201 of the Act, or necessary to re- high cost in a project in order to arrive
cycle or reuse water at the most eco- at a cost saving without sacrificing the
nomical cost over the design life of the reliability or efficiency of the project.
works. These include intercepting sew-
ers, outfall sewers, sewage collection [49 FR 6234, Feb. 17, 1984, as amended at 50
systems, individual systems, pumping, FR 45894, Nov. 4, 1985; 55 FR 27095, June 29,
power, and other equipment and their 1990]
appurtenances; extensions, improve-
§ 35.2010 Allotment; reallotment.
ment, remodeling, additions, and alter-
ations thereof; elements essential to (a) Allotments are made on a formula
provide a reliable recycled supply such or other basis which Congress specifies
as standby treatment units and clear for each fiscal year (FY). The allot-
well facilities; and any works, includ- ment for each State and the avail-
ing acquisition of the land that will be ability period shall be announced each
an integral part of the treatment proc- fiscal year in the FEDERAL REGISTER.
ess or is used for ultimate disposal of This section applies only to funds al-
residues resulting from such treatment lotted under section 205 of the Act.
(including land for composting sludge, (b) Unless otherwise provided by Con-
temporary storage of such compost and gress, all sums allotted to a State
land used for the storage of treated under section 205 of the Act shall re-
wastewater in land treatment systems main available for obligation until the
before land application); or any other end of the one year after the close of
method or system for preventing, abat- the fiscal year for which the sums were
ing, reducing, storing, treating, sepa- appropriated. Except as provided in
rating, or disposing of municipal waste § 35.2020(a), sums not obligated at the
or industrial waste, including waste in end of that period shall be subject to
combined storm water and sanitary reallotment on the basis of the same
sewer systems. ratio as applicable to the then-current
(50) Treatment works phase or segment. fiscal year, adjusted for the States
A treatment works phase or segment which failed to obligate any of the fis-
may be any substantial portion of a fa- cal year funds being reallotted, but
cility and its interceptors described in none of the funds reallotted shall be
a facilities plan under § 35.2030, which made available to any State which
can be identified as a subagreement or failed to obligate any of the fiscal year
discrete subitem. Multiple subagree- funds being reallotted. Any sum made
ments under a project shall not be con- available to a State by reallotment
sidered to be segments or phases. Com- under this section shall be in addition
pletion of building of a treatment to any funds otherwise allotted to such
works phase or segment may, but need State for grants under this subpart
529
§ 35.2012 40 CFR Ch. I (7–1–00 Edition)
during any fiscal year and the reallot- State project list, except training fa-
ted funds shall remain available for ob- cilities funded under section 109(b) of
ligation until the last day of the fiscal the Act and marine CSO projects fund-
year following the fiscal year in which ed under section 201(n)(2) of the Act.
the reallotted funds are issued by the (b) State priority system. The State
Comptroller to the Regional Adminis- priority system describes the method-
trator. ology used to rank projects that are
(c) Except for funds appropriated for considered eligible for assistance. The
FY 72 and fiscal years prior to 1972, priority system should give high pri-
sums which are deobligated and re- ority to projects in priority water qual-
issued by the Comptroller to the Re- ity areas. The priority system may
gional Administrator before their real- also include the administrative, man-
lotment date shall be available for ob- agement, and public participation pro-
ligation in the same State and treated cedures required to develop and revise
in the same manner as the allotment the State project priority list. The pri-
from which such funds were derived. ority system includes at least the fol-
(d) Except for funds appropriated for lowing elements:
FY 72 and fiscal years prior to 1972, (1) Criteria. (i) The priority system
deobligated sums which are reissued by shall include at least the following cri-
the Comptroller to the Regional Ad- teria for ranking projects:
ministrator after their reallotment (A) The impairment of classified
date shall be available for obligation in water uses resulting from existing mu-
the same State until the last day of the nicipal pollutant discharges; and
fiscal year following the fiscal year in (B) The extent of surface or ground
which the reissuance occurs. water use restoration or public health
(e) Deobligated FY 72 and prior to improvement resulting from the reduc-
1972 fiscal year funds, except 1964, 1965 tion in pollution.
and 1966 funds, will be credited to the (ii) The State may also include other
allowances of the same Region from criteria in its priority system for rank-
which such funds are recovered, and ing projects, such as the use of innova-
the Regional Administrator may deter- tive or alternative technology, the
mine how these recoveries are credited need to complete a waste treatment
to the States within the Region. system for which a grant for a phase or
[49 FR 6234, Feb. 17, 1984, as amended at 50 segment was previously awarded; and
FR 45895, Nov. 4, 1985] the category of need and the existing
population affected.
§ 35.2012 Capitalization grants. (iii) In ranking phased and segmented
Amounts allotted to a State under projects States must comply with
title II may be deposited in that § 35.2108.
State’s water pollution control revolv- (2) Categories of need. All projects
ing fund as a capitalization grant in ac- must fit into at least one of the cat-
cordance with 40 CFR 35.5020 (f) and (g). egories of need described in this para-
[55 FR 27095, June 29, 1990] graph to be eligible for funding, except
as provided in paragraphs (b)(2) (iii)
§ 35.2015 State priority system and and (iv) of this section. States will
project priority list. have sole authority to determine the
(a) General. The Regional Adminis- priority for each category of need.
trator will award grant assistance from (i) Before October 1, 1984, these cat-
annual allotments to projects on a egories of need shall include at least
State project priority list developed in the following:
accordance with an approved State pri- (A) Secondary treatment (category
ority system. The State priority sys- I);
tem and list must be designed to (B) Treatment more stringent than
achieve optimum water quality man- secondary (category II);
agement consistent with the goals and (C) Infiltration/inflow correction
requirements of the Act. All projects (category IIIA);
for building treatment works to be (D) Major sewer system rehabilita-
funded by EPA must be included on a tion (category IIIB);
530
(E) New collector sewers and appur- (2) The list shall include an estimate
tenances (category IVA); of the eligible cost of each project.
(F) New interceptors and appur- (d) Public participation. (1) In addition
tenances (category IVB); to any requirements in 40 CFR part 25,
(G) Correction of combined sewer the State shall hold public hearings as
overflows (category V). follows:
(ii) After September 30, 1984, except (i) Before submitting its priority sys-
as provided in paragraphs (b)(2) (iii) tem to the Regional Administrator for
and (iv) of this section, these cat- approval and before adopting any sig-
egories of need shall include only the nificant change to an approved priority
following: system; and
(A) Secondary treatment or any cost- (ii) Before submitting its annual
effective alternative; project priority list to the Regional
(B) Treatment more stringent than Administrator for acceptance and be-
secondary or any cost-effective alter- fore revising its priority list unless the
native; State agency and the Regional Admin-
(C) New interceptors and appur- istrator determine that the revision is
tenances; and not significant.
(D) Infiltration/inflow correction.
(iii) If the approved State priority
(iii) After September 30, 1984, up to 20
system contains procedures for bypass-
percent (as determined by the Gov-
ing projects on the fundable portion of
ernor) of a State’s annual allotment
the priority list, such bypasses will not
may be used for categories of need
be significant revisions for purposes of
other than those listed in paragraph
(b)(2)(ii) of this section and for any pur- this section.
pose for which grants may be made (2) Public hearings may be conducted
under sections 319 (h) and (i) of the Act as directed in the State’s continuing
(including any innovative and alter- planning process document or may be
native approaches for the control of held in conjunction with any regular
nonpoint sources of pollution). public meeting of the State agency.
(iv) After September 30, 1984, the (e) Regional Administrator review. The
Governor may include in the priority State must submit its priority system,
system a category for projects needed project priority list and revisions of
to correct combined sewer overflows the priority system or priority list to
which result in impaired uses in pri- the Regional Administrator for review.
ority water quality areas. Only The State must also submit each year,
projects which comply with the re- by August 31, a new priority list for use
quirements of § 35.2024(a) may be in- in the next fiscal year.
cluded in this category. (1) After submission and approval of
(c) Project priority list. The State’s an- the initial priority system and submis-
nual project priority list is an ordered sion and acceptance of the project pri-
listing of projects for which the State ority lists under paragraph (c) of this
expects Federal financial assistance. section, the State may revise its pri-
The priority list contains two portions: ority system and list as necessary.
the fundable portion, consisting of (2) The Regional Administrator shall
those projects anticipated to be funded review the State priority system and
from funds available for obligation; any revisions to insure that they are
and the planning portion, consisting of designed to obtain compliance with the
projects anticipated to be funded from criteria established in accordance with
future authorized allotments. paragraphs (b) and (d) of this section
(1) The State shall develop the and the enforceable requirements of
project priority list consistent with the the Act as defined in § 35.2005(b)(15).
criteria established in the approved The Regional Administrator shall com-
priority system. In ranking projects, plete review of the priority system
the State must also consider total within 30 days of receipt of the system
funds available, needs and priorities set from the State and will notify the
forth in areawide water quality man- State in writing of approval or dis-
agement plans, and any other factors approval of the priority system, stat-
contained in the State priority system. ing any reasons for disapproval.
531
§ 35.2020 40 CFR Ch. I (7–1–00 Edition)
(3) The Regional Administrator will scheduled to be delegated to a State.

review the project priority list and any Funds reserved for this purpose that
revisions to insure compliance with the are not obligated by the end of the al-
State’s approved priority system and lotment period will be added to the
the requirements of paragraph (c) of amounts last allotted to a State. These
this section. The Regional Adminis- funds shall be immediately available
trator will complete review of the for obligation to projects in the same
project priority list within 30 days of manner and to the same extent as the
receipt from the State and will notify last allotment.
the State in writing of acceptance or (b) Reserve for alternative systems for
rejection, stating the reasons for the small communities. Each State with 25
rejection. Any project which is not percent or more rural population (as
contained on an accepted current pri- determined by the population esti-
ority list will not receive funding. mates of the Bureau of Census) shall
(f) Compliance with the enforceable re- reserve not less than 4 percent nor
quirements of the Act. (1) Except as lim- more than 71⁄2 percent of the State’s
ited under paragraph (f)(2) of this sec- annual allotment for alternatives to
tion, the Regional Administrator, after conventional treatment works for
a public hearing, shall require the re- small communities. The Governor of
moval of a specific project or portion any non-rural State may reserve up to
thereof from the State project priority 71⁄2 percent of the State’s allotment for
list if the Regional Administrator de- the same purpose.
termines it will not contribute to com- (c) Reserve for innovative and alter-
pliance with the enforceable require- native technologies. Each State shall re-
ments of the Act. serve not less than 4 percent nor more
(2) The Regional Administrator shall than 71⁄2 percent from its annual allot-
not require removal of projects in cat- ment to increase the Federal share of
egories under paragraphs (b)(2)(i) (D) grant awards under § 35.2032 for projects
through (G) of this section which do which use innovative or alternative
not meet the enforceable requirements wastewater treatment processes and
of the Act unless the total Federal techniques. Of this amount not less
share of such projects would exceed 25 than one-half of one percent of the
percent of the State’s annual allot- State’s allotment shall be set aside to
ment. increase the Federal share for projects
[49 FR 6234, Feb. 17, 1984, as amended at 55 using innovative processes and tech-
FR 27095, June 29, 1990] niques.
(d) Reserve for water quality manage-
§ 35.2020 Reserves. ment. Each State shall reserve not less
In developing its priority list the than $100,000 nor more than 1 percent
State shall establish the reserves re- from its annual allotments, to carry
quired or authorized under this section. out water quality management plan-
The amount of each mandatory reserve ning under § 35.2023, except that in the
shall be based on the allotment to each case of Guam, the Virgin Islands,
State from the annual appropriation American Samoa, the Trust Territory
under § 35.2010. The State may also es- of the Pacific Islands and the Common-
tablish other reserves which it deter- wealth of the Northern Marianas, a
mines appropriate. reasonable amount shall be reserved
(a) Reserve for State management assist- for this purpose.
ance grants. Each State may request (e) Reserve for Advances of Allowance.
that the Regional Administrator re- Each State shall reserve a reasonable
serve, from the State’s annual allot- portion of its annual allotment not to
ment, up to 4 percent of the State’s al- exceed 10 percent for advances of allow-
lotment based on the amount author- ance under § 35.2025. The Regional Ad-
ized to be appropriated, or $400,000, ministrator may waive this reserve re-
whichever is greater, for State manage- quirement where a State can dem-
ment assistance grants under subpart onstrate that such a reserve is not nec-
A of this part. Grants may be made essary because no new facilities plan-
from these funds to cover the costs of ning or design work requiring an ad-
administering activities delegated or vance and resulting in Step 3 grant
532
awards is expected to begin during the are reissued by the Comptroller to the
period of availability of the annual al- Regional Administrator before the ini-
lotment. tial reallotment date for those funds
(f) Nonpoint source reserve. Each State shall be returned to the same reserve.
shall reserve 1 percent of its annual al- (See § 35.2010(c)).
lotment or $100,000, whichever is great- [49 FR 6234, Feb. 17, 1984, as amended at 50
er, for development and implementa- FR 45895, Nov. 4, 1985; 55 FR 27095, June 29,
tion of a nonpoint source management 1990]
program under section 319 of the Act.
Sums reserved by the State under this § 35.2023 Water quality management
paragraph that are in excess of $100,000 planning.
and that are not used for these pur- (a) From funds reserved under
poses, may be used by the State for any § 35.2020(d) the Regional Administrator
other purpose under title II of the Act. shall make grants to the States to
(g) Marine estuary reserve. The Admin- carry out water quality management
istrator shall reserve, before allotment planning including but not limited to:
of funds to the States, 1 percent of the (1) Identifying the most cost-effec-
funds appropriated under section 207 in tive and locally acceptable facility and
fiscal years 1987 and 1988, and 11⁄2 per- non-point measures to meet and main-
cent of the funds appropriated under tain water quality standards;
section 207 in fiscal years 1989 and 1990, (2) Developing an implementation
to carry out section 205(l) of the Act. plan to obtain State and local financial
(h) Indian program reserve. The Ad- and regulatory commitments to imple-
ministrator shall reserve, before allotment measures developed under para-
ment of funds to the States, one-half of graph (a)(1) of this section;
1 percent of the funds appropriated (3) Determining the nature, extent
under section 207 in fiscal years 1987, and causes of water quality problems
1988, 1989 and 1990, for grants for the de- in various areas of the State and inter-
velopment of waste treatment manage- state region, and reporting on these an-
ment plans and for the construction of nually; and
sewage treatment works to serve In- (4) Determining which publicly
dian tribes. owned treatment works should be con-
[49 FR 6234, Feb. 17, 1984, as amended at 50 structed, in which areas and in what
FR 45895, Nov. 4, 1985; 55 FR 27095, June 29, sequence, taking into account the rel-
1990] ative degree of effluent reduction at-
tained, the relative contributions to
§ 35.2021 Reallotment of reserves. water quality of other point or
(a) Mandatory portions of reserves nonpoint sources, and the consider-
under § 35.2020(b) through (g) shall be ation of alternatives to such construc-
reallotted if not obligated during the tion, and implementing section 303(e)
allotment period (§ 35.2010(b) and (d)). of the Act.
Such reallotted sums are not subject to (b) In carrying out planning with
reserves. The State management as- grants made under paragraph (a) of
sistance reserve under § 35.2020(a) is not this section, a State shall develop
subject to reallotment. jointly with local, regional and inter-
(b) States may request the Regional state entities, a plan for carrying out
Administrator to release funds in op- the program and give funding priority
tional reserves or optional portions of to such entities and designated or un-
required reserves under § 35.2020(b) designated public comprehensive plan-
through (e) for funding projects at any ning organizations to carry out the
time before the reallotment date. If purposes of this section.
these optional reserves are not obli-
gated or released and obligated for § 35.2024 Combined sewer overflows.
other purposes before the reallotment (a) Grant assistance from State allot-
date, they shall be subject to reallotment. As provided in § 35.2015(b)(2)(iv),
ment under § 35.2010(b). after September 30, 1984, upon request
(c) Sums deobligated from the man- from a State, the Administrator may
datory portion of reserves under para- award a grant under section 201(n)(1) of
graphs (b) through (e) of § 35.2020 which the Act from the State allotment for
533
§ 35.2025 40 CFR Ch. I (7–1–00 Edition)
correction of combined sewer overflows 35.2015, 35.2020, 35.2021, 35.2025(b),

provided that the project is on the 35.2042, 35.2103, 35.2109, and 35.2202.
project priority list, it addresses im-
paired uses in priority water quality § 35.2025 Allowance and advance of al-
areas which are due to the impacts of lowance.
the combined sewer overflows and oth- (a) Allowance. Step 2=3 and Step 3
erwise meets the requirements of this grant agreements will include an al-
subpart. The State must demonstrate lowance for facilities planning and de-
to the Administrator that the water sign of the project and Step 7 agree-
quality goals of the Act will not be ments will include an allowance for fa-
achieved without correcting the com- cility planning in accordance with ap-
bined sewer overflows. The demonstra- pendix B of this subpart.
tion shall as a minimum prove that (b) Advance of allowance to potential
significant usage of the water for fish- grant applicants. (1) After application
ing and swimming will not be possible by the State (see § 35.2040(d)), the Re-
without the proposed project, and that gional Administrator will award a
the project will result in substantial grant to the State in the amount of the
restoration of an existing impaired use. reserve under § 35.2020(e) to advance al-
(b) Separate fund for combined sewer lowances to potential grant applicants
overflows in marine waters. (1) After Sep- for facilities planning and project de-
tember 30, 1982, the Administrator may sign.
award grants under section 201(n)(2) of (2) The State may request that the
the Act for addressing impaired uses or right to receive payments under the
public health risks in priority water grant be assigned to specified potential
quality areas in marine bays and estu- grant applicants.
aries due to the impacts of combined (3) The State may provide advances
sewer overflows. The Administrator of allowance only to small commu-
may award such grants provided that nities, as defined by the State, which
the water quality benefits of the pro- would otherwise be unable to complete
posed project have been demonstrated an application for a grant under
by the State. The demonstration shall § 35.2040 in the judgment of the State.
as a minimum prove that significant (4) The advance shall not exceed the
usage of the water for shellfishing and Federal share of the estimate of the al-
swimming will not be possible without lowance for such costs which a grantee
the proposed project for correction of would receive under paragraph (a) of
combined sewer overflows, and the pro- this section.
posed project will result in substantial (5) In the event a Step 2=3, Step 3 or
restoration of an existing impaired use. Step 7 grant is not awarded to a recipi-
(2) The Administrator shall establish ent of an advance, the State may seek
priorities for projects with dem- repayment of the advance on such
onstrated water quality benefits based terms and conditions as it may deter-
upon the following criteria: mine. When the State recovers such ad-
(i) Extent of water use benefits that vances they shall be added to its most
would result, including swimming and recent grant for advances of allowance.
shellfishing; [49 FR 6234, Feb. 17, 1984, as amended at 55
(ii) Relationship of water quality im- FR 27095, June 29, 1990]
provements to project costs; and
(iii) National and regional signifi- § 35.2030 Facilities planning.
cance. (a) General. (1) Facilities planning
(3) If the project is a phase or seg- consists of those necessary plans and
ment of the proposed treatment works studies which directly relate to treat-
described in the facilities plan, the cri- ment works needed to comply with en-
teria in paragraph (b)(2) of this section forceable requirements of the Act. Fa-
must be applied to the treatment cilities planning will investigate the
works described in the facilities plan need for proposed facilities. Through a
and each segment proposed for funding. systematic evaluation of alternatives
(4) All requirements of this subpart that are feasible in light of the unique
apply to grants awarded under section demographic, topographic, hydrologic
201(n)(2) of the Act except §§ 35.2010, and institutional characteristics of the
534
area, it will demonstrate that, except facility while recognizing environ-

for innovative and alternative tech- mental and other non-monetary con-
nology under § 35.2032, the selected al- siderations. The planning period for
ternative is cost effective (i.e., is the the cost-effectiveness analysis shall be
most economical means of meeting the 20 years. The monetary costs to be con-
applicable effluent, water quality and sidered must include the present worth
public health requirements over the de- or equivalent annual value of all cap-
sign life of the facility while recog- ital costs and operation and mainte-
nizing environmental and other non- nance costs. The discount rate estab-
monetary considerations). For sewered lished by EPA for the construction
communities with a population of grants program shall be used in the
10,000 or less, consideration must be cost-effectiveness analysis. The popu-
given to appropriate low cost tech- lation forecasting in the analysis shall
nologies such as facultative ponds, be consistent with the current Needs
trickling filters, oxidation ditches, or Survey. A cost-effectiveness analysis
overland-flow land treatment; and for must include:
unsewered portions of communities of (i) An evaluation of alternative flow
10,000 or less, consideration must be reduction methods. (If the grant appli-
given to onsite systems. The facilities cant demonstrates that the existing
plan will also demonstrate that the se- average daily base flow (ADBF) from
lected alternative is implementable the area is less than 70 gallons per cap-
from legal, institutional, financial and ita per day (gpcd), or if the Regional
management standpoints. Administrator determines the area has
(2) Grant assistance may be awarded an effective existing flow reduction
before certification of the completed program, additional flow reduction
facilities plan if: evaluation is not required.)
(i) The Regional Administrator deter- (ii) A description of the relationship
mines that applicable statutory and between the capacity of alternatives
regulatory requirements (including and the needs to be served, including
part 6) have been met; that the facili- capacity for future growth expected
ties planning related to the project has after the treatment works become
been substantially completed; and that operational. This includes letters of in-
the project for which grant assistance tent from significant industrial users
is awarded will not be significantly af- and all industries intending to increase
fected by the completion of the facili- their flows or relocate in the area doc-
ties plan and will be a component part umenting capacity needs and charac-
of the complete waste treatment sys- teristics for existing or projected flows;
tem; and (iii) An evaluation of improved efflu-
(ii) The applicant agrees to complete ent quality attainable by upgrading
the facilities plan on a schedule the the operation and maintenance and ef-
State accepts and such schedule is in- ficiency of existing facilities as an al-
serted as a special condition of the ternative or supplement to construc-
grant agreement. tion of new facilities;
(b) Facilities plan contents. A com- (iv) An evaluation of the alternative
pleted facilities plan must include: methods for the reuse or ultimate dis-
(1) A description of both the proposed posal of treated wastewater and sludge
treatment works, and the complete material resulting from the treatment
waste treatment system of which it is process;
a part. (v) A consideration of systems with
(2) A description of the Best Prac- revenue generating applications;
ticable Wastewater Treatment Tech- (vi) An evaluation of opportunities to
nology. (See § 35.2005(b)(7).) reduce use of, or recover energy;
(3) A cost-effectiveness analysis of (vii) Cost information on total cap-
the feasible conventional, innovative ital costs, and annual operation and
and alternative wastewater treatment maintenance costs, as well as esti-
works, processes and techniques capa- mated annual or monthly costs to resi-
ble of meeting the applicable effluent, dential and industrial users.
water quality and public health re- (4) A demonstration of the non-exist-
quirements over the design life of the ence or possible existence of excessive
535
§ 35.2032 40 CFR Ch. I (7–1–00 Edition)
inflitration/inflow in the sewer system. small community, funds from the re-
See § 35.2120. serve in § 35.2020(b) may be used for the
(5) An analysis of the potential open 75 percent portion, or any lower Fed-
space and recreation opportunities as- eral share of the grant as determined
sociated with the project. under § 35.2152.
(6) An adequate evaluation of the en- (b) Cost-effectiveness preference. The
vironmental impacts of alternatives Regional Administrator may award
under part 6 of this chapter. grant assistance for a treatment works
(7) An evaluation of the water supply or portion of a treatment works using
implications of the project. innovative or alternative technologies
(8) For the selected alternative, a if the total present worth cost of the
concise description at an appropriate treatment works for which the grant is
level of detail, of at least the following: to be made does not exceed the total
(i) Relevant design parameters; present worth cost of the most cost-ef-
(ii) Estimated capital construction fective alternative by more than 15 per-
and operation and maintenance costs, cent.
(identifying the Federal, State and (1) Privately-owned individual sys-
local shares), and a description of the tems (§ 35.2034) are not eligible for this
manner in which local costs will be fi- preference.
nanced; (2) If the present worth costs of the
(iii) Estimated cost of future expan- innovative or alternative unit proc-
sion and long-term needs for recon- esses are 50 percent or less of the
struction of facilities following their present worth cost of the treatment
design life; works, the cost-effectiveness pref-
(iv) Cost impacts on wastewater sys- erence applies only to the innovative
tem users; and or alternative components.
(v) Institutional and management ar- (c) Modification or replacement of inno-
rangements necessary for successful vative and alternative projects. The Re-
implementation. gional Administrator may award grant
(c) Submission and review of facilities assistance to fund 100 percent of the al-
plan. Each facilities plan must be sub- lowable costs of the modification or re-
mitted to the State for review. EPA placement of any project funded with
recommends that potential grant appli- increased grant funding in accordance
cants confer with State reviewers early with paragraph (a) of this section if he
in the facilities planning process. In determines that:
addition, a potential grant applicant (1) The innovative or alternative ele-
may request in writing from the State ments of the project have caused the
and EPA an early determination under project or significant elements of the
part 6 of this chapter of the appro- complete waste treatment system of
priateness of a categorical exclusion which the project is a part to fail to
from NEPA requirements, the scope of meet project performance standards;
the environmental information docu- (2) The failure has significantly in-
ment or the early preparation of an en- creased operation and maintenance ex-
vironmental impact statement. penditures for the project or the com-
plete waste treatment system of which
§ 35.2032 Innovative and alternative the project is a part; or requires sig-
technologies. nificant additional capital expendi-
(a) Funding for innovative and alter- tures for corrective action;
native technologies. Projects or portions (3) The failure has occurred prior to
of projects using unit processes or two years after initiation of operation
techniques which the Regional Admin- of the project; and
istrator determines to be innovative or (4) The failure is not attributable to
alternative technology shall receive in- negligence on the part of any person.
creased grants under § 35.2152.
(1) Only funds from the reserve in § 35.2034 Privately owned individual
§ 35.2020(c) shall be used to increase systems.
these grants. (a) An eligible applicant may apply
(2) If the project is an alternative to for a grant to build privately owned
conventional treatment works for a treatment works serving one or more
536
principal residences or small commer- propriated or otherwise available after

cial establishments. February 4, 1987.
(b) In addition to those applicable
[55 FR 27095, June 29, 1990]
limitations set forth in §§ 35.2100
through 35.2127 the grant applicant § 35.2036 Design/build project grants.
shall:
(1) Demonstrate that the total cost (a) Terms and conditions. The Re-
and environmental impact of building gional Administrator may award a de-
the individual system will be less than sign/build (Step 7) project grant pro-
the cost of a conventional system; vided that:
(2) Certify that the principal resi- (1) The proposed treatment works has
dence or small commercial establish- an estimated total cost of $8 million or
ment was constructed before December less;
27, 1977, and inhabited or in use on or (2) The proposed treatment works is
before that date; an aerated lagoon, trickling filter,
(3) Apply on behalf of a number of in- waste stabilization pond, land applica-
dividual units to be served in the facili- tion system (wastewater or sludge),
ties planning area; slow rate (intermittent) sand filter or
(4) Certify that public ownership of subsurface disposal system;
such works is not feasible and list the (3) The proposed treatment works
reasons; and will be an operable unit, will meet all
(5) Certify that such treatment works requirements of title II of the Act, and
will be properly operated and main- will be operated to meet the require-
tained and will comply with all other ments of any applicable permit;
requirements of section 204 of the Act. (4) The grantee obtains bonds from
the contractor in an amount the Re-
§ 35.2035 Rotating biological con- gional Administrator determines ade-
tractor (RBC) replacement grants. quate to protect the Federal interest in
The Regional Administrator may the treatment works (see 40 CFR
award a grant for 100 percent of the 31.36(h));
cost, including planning and design (5) The grantee will not allow any en-
costs, of modification or replacement gineer, engineering firm or contractor
of RBCs which have failed to meet de- which provided facilities planning or
sign performance specifications, pro- pre-bid services to bid or carry out any
vided: part of the design/build work;
(a) The applicant for a modification/ (6) Contracts will be firm, fixed price
replacement grant demonstrates to the contracts;
Regional Administrator’s satisfaction, (7) The grantee agrees that the grant
by a preponderance of the evidence, amount, as amended to reflect the low-
that the RBC failure is not due to the est responsive/responsible bid (see
negligence of any person, including the paragraph (e) of this section), will not
treatment works owner, the applicant, be increased;
its engineers, contractors, equipment (8) The grantee will establish reason-
manufacturers or suppliers; able building start and completion
(b) The RBC failure has significantly dates;
increased the project’s capital or oper- (9) The grantee agrees that EPA will
ation and maintenance costs; not pay more than 95 percent of the
(c) The modification/replacement grant amount until after completion of
project meets all requirements of building and the Regional Administra-
EPA’s construction grant and other ap- tor’s final project approval, based on
plicable regulations, including 40 CFR initiation of operation and acceptance
parts 31, 32 and 35; of the facility by the grantee;
(d) The modification/replacement (10) The grantee agrees that a recipi-
project is included within the fundable ent of a Step 7 grant is not eligible for
range of the State’s annual project pri- any other grant for the project under
ority list; and title II of the Act; and
(e) The State certifies the project for (11) The grantee accepts other terms
funding from its regular (i.e. non-re- and conditions deemed necessary by
serve) allotments and from funds ap- the Regional Administrator.
537
§ 35.2040 40 CFR Ch. I (7–1–00 Edition)
(b) Procurement. (1) Grantee procure- (iii) Any adjustments to the final al-
ment for developing or supplementing lowance for facilities planning if in-
the facilities plan to prepare the precluded as required by paragraph (c)(1)
bid package, as well as for designing of this section (the amount of the final
and building the project and per- allowance is established as a percent-
forming construction management and age of the actual building cost in ac-
contract administration, will be in accordance with appendix B of this sub-
cordance with EPA procurement re- part);
quirements at 40 CFR part 31. (iv) The actual reasonable and nec-
(2) The grantee will use the sealed bid essary cost of supplementing the facili-
(formal advertising) method of pro- ties plan to prepare the pre-bid pack-
curement to select the design/build age (see paragraph (c)(1) of this sec-
contractor. tion); and
(3) The grantee may use the same ar- (v) The submission of approvable
chitect or engineer that prepared the items required by § 35.2203 of this part.
facilities plan to provide any or all of (2) Changes to Step 7 projects cannot
the pre-bid, construction management, increase the amount of EPA assistance
and contract and/or project administra- established at the time of the grant
tion services provided the initial pro- amendment.
curement met EPA requirements (see
(f) Allotment limit for design/build
40 CFR 31.36(k)).
grants. The Governor may use up to 20
(c) Pre-bid package. Each design/build
percent of the State’s annual allotment
project grant will provide for the prep-
for design/build project grants.
aration of a pre-bid package that is suf-
ficiently detailed to insure that the [55 FR 27096, June 29, 1990]
bids received for the design/build work
are complete, accurate and comparable § 35.2040 Grant application.
and will result in a cost-effective, oper- Applicants for Step 2=3 or Step 3 as-
able facility. sistance shall submit applications to
(d) Grant amount. The grant amount the State. In addition to the informa-
will be based on an estimate of the de- tion required in parts 30 and 33 of this
sign/build project’s final cost, includ- subchapter, applicants shall provide
ing: the following information:
(1) An allowance for facilities plan- (a) Step 2=3: Combined design and
ning if the grantee did not receive a building of a treatment works and build-
Step 1 grant (the amount of the allowing related services and supplies. An ap-
ance is established as a percentage of plication (EPA form 5700–32) for Step
the estimated design/build cost in ac- 2=3 grant assistance shall include:
cordance with appendix B of this sub-
(1) A facilities plan prepared in ac-
part);
cordance with subpart E or I as appro-
(2) An estimated cost of sup-
priate;
plementing the facilities plan and
(2) Certification from the State that
other costs necessary to prepare the
there has been adequate public partici-
pre-bid package (see appendix A.I.1(a)
pation based on State and local stat-
of this subpart); and
utes;
(3) The estimated cost of the design/
build contract. (3) Notification of any advance re-
(e) Amended grant amount. (1) After ceived under § 35.2025(b);
bids are accepted for the design/build (4) Evidence of compliance with all
contract, and the price of the lowest application limitations on award
responsive, responsible bidder is deter- (§§ 35.2100 through 35.2127); and
mined, EPA will amend the design/ (5) The project schedule.
build project grant based on: (b) Step 3: Building of a treatment
(i) The amount of the lowest respon- works and related services and supplies.
sive, responsible bid; An application (EPA form 5700–32) for
(ii) A lump sum for construction Step 3 grant assistance shall include:
management, contract and project ad- (1) A facilities plan prepared in ac-
ministration services and contin- cordance with subpart E or I as appro-
gencies; priate;
538
(2) Certification from the State that (4) Schedule for construction of field
there has been adequate public partici- testing facilities and duration of pro-
pation based on State and local stat- posed testing;
utes; (5) Capital and O&M cost estimate of
(3) Notification of any advance re- field testing facilities with documenta-
ceived under § 35.2025(b); tion of cost effectiveness of field test-
(4) Evidence of compliance with all ing approach; and
applicable limitations on award (6) Design drawing, process flow dia-
(§§ 35.2100 through 35.2127); gram, equipment specification and re-
(5) Final design drawings and speci- lated engineering data and information
fications; sufficient to describe the overall design
(6) The project schedule; and and proposed performance of the field
(7) In the case of an application for testing facility.
Step 3 assistance that is solely for the (f) Marine CSO Fund Project. An appli-
acquisition of eligible real property, a cation (EPA Form 5700–32) for marine
plat which shows the legal description CSO grant assistance under § 35.2024(b)
of the property to be acquired, a pre- shall include:
liminary layout of the distribution and (1) All information required under
drainage systems, and an explanation paragraphs (b) (1), (2), (4), (6), and (7), of
of the intended method of acquiring this section;
the real property (see 40 CFR part 4). (2) Final design drawings and speci-
(c) Training facility project. An appli- fications or a commitment to provide
cation (EPA form 5700–32) for a grant them by a date set by the Regional Ad-
for construction and support of a train- ministrator; and
ing facility, facilities or training pro- (3) The water quality benefits dem-
grams under section 109(b) of the Act onstration required under § 35.2024(b)(1).
shall include: (g) Design/build project grant (Step 7).
(1) A written commitment from the An application (EPA Form 5700–20) for
State agency to carry out at such facil- a design/build project grant shall in-
ity a program of training; and clude:
(2) If a facility is to be built, an engi- (1) All the information required in
neering report including facility design paragraphs (b) (1), (2) and (4) of this
data and cost estimates for design and section; and
building. (2) The estimated building start and
(d) Advances of allowance. State appli- completion dates and Federal payment
cations for advances of allowance to schedule (the start and completion
small communities shall be on EPA dates may be revised when the design/
form 5700–31, Application for Federal build bids are accepted and included in
Assistance (short form). The applica- the amended grant).
tion shall include: (Approved by the Office of Management and
(1) A list of communities that re- Budget under control number 2040–0027)
ceived an advance of allowance and the [49 FR 6234, Feb. 17, 1984, as amended at 50
amount received by each under the pre- FR 45895, Nov. 4, 1985; 55 FR 27096, June 29,
vious State grant; and 1990]
(2) The basis for the amount re-
quested. § 35.2042 Review of grant applications.
(e) Field Testing of Innovative and Al- (a) All States shall review grant ap-
ternative Technology. An application plications to ensure that they are com-
(EPA Form 5700–32) for field testing of plete. When the State determines the
I/A projects shall include a field testing proposed project is entitled to priority
plan containing: it shall forward the State priority cer-
(1) Identification; including size, of tification and, except where applica-
all principal components to be tested; tion review is delegated, the complete
(2) Location of testing facilities in application to the regional Adminis-
relationship to full scale design; trator for review.
(3) Identification of critical design (b)(1) All States delegated authority
parameters and performance variables to manage the construction grants pro-
that are to be verified as the basis for gram under section 205(g) of the Act
I/A determinations: and subpart F of this part shall furnish
539
§ 35.2050 40 CFR Ch. I (7–1–00 Edition)
a written certification to the Regional management practices. EPA is not re-

Administrator, on a project-by-project sponsible for increased costs resulting
basis, stating that the applicable Fed- from defects in the plans, design draw-
eral requirements within the scope of ings and specifications or other sub-
authority delegated to the State under agreement documents.
the delegation agreement have been
met. The certification must be sup- § 35.2100 Limitations on award.
ported by documentation specified in (a) Facilities plan approval. Before
the delegation agreement which will be awarding grant assistance for any
made available to the Regional Admin-
project the Regional Administrator
istrator upon request. The Regional
shall approve the facilities plan and
Administrator shall accept the certifi-
final design drawings and specifica-
cation unless he determines the State
tions and determine that the applicant
has failed to establish adequate
grounds for the certification or that an and the applicant’s project have met
applicable requirement has not been all the applicable requirements of
met. §§ 35.2040 and 35.2100 through § 35.2127
(2)(i) When EPA receives a certifi- except as provided in § 35.2202 for Step
cation covering all delegable preaward 2=3 projects and § 35.2203 for Step 7
requirements, the Regional Adminis- projects.
trator shall approve or disapprove the (b) Agreement on eligible costs. (1) Con-
grant within 45 calendar days of receipt current with the approval of a Step 3,
of the certification. The Regional Ad- Step 2=3 or Step 7 grant, the Regional
ministrator shall state in writing the Administrator and the grant applicant
reasons for any disapproval, and he will enter into a written agreement
shall have an additional 45 days to re- which will specify the items in the pro-
view any subsequent revised submis- posed project that are eligible for Fed-
sions. If the Regional Administrator eral payments and which shall be in-
fails to approve or disapprove the grant corporated as a special grant condition
within 45 days of receipt of the applica- in the grant award.
tion, the grant shall be deemed ap- (2) Notwithstanding such agreement,
proved and the Regional Adminstrator the Regional Administrator may:
shall issue the grant agreement. (i) Modify eligibility determinations
(ii) Grant increase requests are sub- that are found to violate applicable
ject to the 45 day provision of this sec- Federal statutes and regulations;
tion if the State has been delegated au- (ii) Conduct an audit of the project;
thority over the subject matter of the (iii) Withhold or recover Federal
request. funds for costs that are found to be un-
(c) Applications for assistance for reasonable, unsupported by adequate
training facilities funded under section documentation or otherwise unallow-
109(b) and for State advances of allowable under applicable Federal cost
ance under section 201(l)(1) of the Act principles;
and § 35.2025 will be reviewed in accord-
(iv) Withhold or recover Federal
ance with part 30 of this subchapter.
funds for costs that are incurred on a
(Approved by the Office of Management and project that fails to meet the design
Budget under control number 2040–0027) specifications or effluent limitations
contained in the grant agreement and
§ 35.2050 Effect of approval or certifi- NPDES permit issued under section 402
cation of documents.
of the Act.
Review or approval of facilities
plans, design drawings and specifica- [55 FR 27096, June 29, 1990]
tions or other documents by or for EPA
is for administrative purposes only and § 35.2101 Advanced treatment.
does not relieve the grantee of its re- Projects proposing advanced treat-
sponsibility to properly plan, design, ment shall be awarded grant assistance
build and effectively operate and main- only after the project has been re-
tain the treatment works described in viewed under EPA’s advanced treat-
the grant agreement as required under ment review policy. This review must
law, regulations, permits, and good be completed before submission of any
540
application. EPA recommends that po- nance in accordance with this regula-
tential grant applicants obtain this re- tion;
view before initiation of design. (3) Certify that it has not violated
any Federal, State or local law per-
§ 35.2102 Water quality management
planning. taining to fraud, bribery, graft, kick-
backs, collusion, conflict of interest or
Before grant assistance can be award- other unlawful or corrupt practice re-
ed for any treatment works project, lating to or in connection with facili-
the Regional Administrator shall first
ties planning or design work on a
determine that the project is:
(a) Included in any water quality wastewater treatment works project.
management plan being implemented (4) Indicate the level of participation
for the area under section 208 of the for minority and women’s business en-
Act or will be included in any water terprises during facilities planning and
quality management plan that is being design of the project.
developed for the area and reasonable (b) Federal assistance made available
progress is being made toward the im- by the Farmers Home Administration
plementation of that plan; and may be used to provide the non-Federal
(b) In conformity with any plan or re- share of the project’s cost.
port implemented or being developed
by the State under sections 303(e) and (Approved by the Office of Management and
305(b) of the Act. Budget under control number 2040–0027)
[55 FR 27097, June 29, 1990] [49 FR 6234, Feb. 17, 1984, as amended at 55
FR 27097, June 29, 1990]
§ 35.2103 Priority determination.
§ 35.2105 Debarment and suspension.
The project shall be entitled to pri-
ority in accordance with § 35.2015, and The applicant shall indicate whether
the award of grant assistance for the it used the services of any individual,
project shall not jeopardize the funding organization, or unit of government for
of any project of higher priority under facilities planning or design work
the approved priority system. whose name appears on the master list
of debarments, suspensions, and vol-
§ 35.2104 Funding and other consider- untary exclusions. See 40 CFR 32.400. If
ations.
the applicant indicates it has used the
(a) The applicant shall; services of a debarred individual or
(1) Agree to pay the non-Federal firm, EPA will closely examine the fa-
project costs; cilities plan, design drawings and spec-
(2) Demonstrate the legal, institu- ifications to determine whether to
tional, managerial, and financial capa-
award a grant. EPA will also determine
bility to ensure adequate building and
whether the applicant should be found
operation and maintenance of the
treatment works throughout the appli- non-responsible under part 30 of this
cant’s jurisdiction including the abil- subchapter or be the subject of possible
ity to comply with part 30 of this sub- debarment or suspension under part 32
chapter. This demonstration must in- of this subchapter.
clude: An explanation of the roles and
responsibilities of the local govern- § 35.2106 Plan of operation.
ments involved; how construction and The applicant shall submit a draft
operation and maintenance of the fa- plan of operation that addresses devel-
cilities will be financed; a current esti- opment of: An operation and mainte-
mate of the cost of the facilities; and a nance manual; an emergency operating
calculation of the annual costs per program; personnel training; an ade-
household. It must also include a writ- quate budget consistent with the user
ten certification signed by the appli- charge system approved under § 35.2140;
cant that the applicant has analyzed operational reports; laboratory testing
the costs and financial impacts of the needs; and an operation and mainte-
proposed facilities, and that it has the nance program for the complete waste
capability to finance and manage their
treatment system.
building and operation and mainte-
541
§ 35.2107 40 CFR Ch. I (7–1–00 Edition)
§ 35.2107 Intermunicipal service agree- portion of the State’s annual allot-

ments. ment;
If the project will serve two or more (2) The period to complete the build-
municipalities, the applicant shall sub- ing of the treatment works will cover
mit the executed intermunicipal agree- three years or more;
ments, contracts or other legally bind- (3) The treatment works must be
phased or segmented to meet the re-
ing instruments necessary for the fi-
quirements of a Federal or State court
nancing, building and operation of the
order; or
proposed treatment works. At a min-
(4) The treatment works is being
imum they must include the basis upon
phased or segmented to build only the
which costs are allocated, the formula
less-than-secondary facility pending a
by which costs are allocated, and the
final decision on the applicant’s re-
manner in which the cost allocation
quest for a secondary treatment re-
system will be administered. The Re-
quirement waiver under section 301(h)
gional Administrator may waive this of the Act.
requirement provided the applicant can
demonstrate: [49 FR 6234, Feb. 17, 1984, as amended at 50
(a) That such an agreement is al- FR 45895, Nov. 4, 1985]
ready in place; or
§ 35.2109 Step 2=3.
(b) Evidence of historic service rela-
tionships for water supply, wastewater The Regional Administrator may
or other services between the affected award a Step 2=3 grant which will pro-
communities regardless of the exist- vide the Federal share of an allowance
ence of formal agreements, and under appendix B and the estimated al-
(c) That the financial strength of the lowable cost of the project only if:
supplier agency is adequate to continue (a) The population of the applicant
the project, even if one of the proposed municipality is 25,000 or less according
customer agencies fails to participate. to the most recent U.S. Census;
(b) The total Step 3 building cost is
(Approved by the Office of Management and estimated to be $8 million or less; and
Budget under control number 2040–0027) (c) The project is not for a treatment
works phase or segment.
§ 35.2108 Phased or segmented treat-
ment works. § 35.2110 Access to individual systems.
Grant funding may be awarded for a Applicants for privately owned indi-
phase or segment of a treatment vidual systems shall provide assurance
works, subject to the limitations of of access to the systems at all reason-
§ 35.2123, although that phase or seg- able times for such purposes as inspec-
ment does not result in compliance tion, monitoring, building, operation,
with the enforceable requirements of rehabilitation and replacement.
the Act, provided:
(a) The grant agreement requires the § 35.2111 Revised water quality stand-
recipient to make the treatment works ards.
of which the phase or segment is a part After December 29, 1984, no grant can
operational and comply with the en- be awarded for projects that discharge
forceable requirements of the Act ac- into stream segments which have not,
cording to a schedule specified in the at least once since December 29, 1981,
grant agreement regardless of whether had their water quality standards re-
grant funding is available for the reviewed and revised or new standards
maining phases and segments; and adopted, as appropriate, under section
(b) Except in the case of a grant sole- 303(c) of the Act, unless:
ly for the acquisition of eligible real (a) The State has in good faith sub-
property, one or more of the following mitted such water quality standards
conditions exist: and the Regional Administrator has
(1) The Federal share of the cost of failed to act on them within 120 days of
building the treatment works would re- receipt;
quire a disproportionate share of the (b) The grant assistance is for the
State’s annual allotment relative to construction of non-discharging land
other needs or would require a major treatment or containment ponds; or
542
(c) The grant assistance is a State (a) Shall be for the replacement or
program grant awarded under section major rehabilitation of an existing col-
205(g) or 205(j) of the Act. lection system which was not build
[50 FR 45895, Nov. 4, 1985] with Federal funds awarded on or after
October 18, 1972, and shall be necessary
§ 35.2112 Marine discharge waiver ap- to the integrity and performance of the
plicants. complete waste treatment system; or
If the applicant is also an applicant (b) Shall be for a new cost-effective
for a secondary treatment requirement collection system in a community in
waiver under section 301(h) of the Act, existence on October 18, 1972, which has
a plan must be submitted which con- sufficient existing or planned capacity
tains a modified scope of work, a sched- to adequately treat such collected
ule for completion of the less-than-sec- wastewater and where the bulk (gen-
ondary facility and an estimate of erally two-thirds) of the expected flow
costs providing for building the pro- (flow from existing plus future residen-
posed less-than-secondary facilities, intial users) will be from the resident
cluding provisions for possible future population on October 18, 1972. The ex-
additions of treatment processes or pected flow will be subject to the limi-
techniques to meet secondary treat- tations for interceptors contained in
ment requirements. § 35.2123. If assistance is awarded, the
grantee shall provide assurances that
§ 35.2113 Environmental review. the existing population will connect to
(a) The environmental review re- the collection system within a reason-
quired by part 6 of this chapter must be able time after project completion.
completed before submission of any ap-
plication. The potential applicant § 35.2118 Preaward costs.
should work with the State and EPA as (a) EPA will not award grant assist-
early as possible in the facilities plan- ance for Step 2=3 and Step 3 work per-
ning process to determine if the project formed before award of grant assist-
qualifies for a categorical exclusion ance for that project, except:
from part 6 requirements, or whether a (1) In emergencies or instances where
finding of no significant impact or an delay could result in significant cost
environmental impact statement is re- increases, the Regional Administrator
quired. may approve preliminary building
(b) In conjunction with the facilities work (such as procurement of major
planning process as described in equipment requiring long lead times,
§ 35.2030(c), a potential applicant may field testing of innovative and alter-
request, in writing, that EPA make a native technologies, minor sewer reha-
formal determination under part 6 of
bilitation, acquisition of eligible land
this chapter.
or an option for the purchase of eligible
§ 35.2114 Value engineering. land or advance building on minor por-
tions of treatment works) after com-
(a) If the project has not received pletion of the environmental review as
Step 2 grant assistance the applicant required by § 35.2113.
shall conduct value engineering if the
(2) If the Regional Administrator ap-
total estimated cost of building the
proves preliminary Step 3 work, such
treatment works is more than $10 mil-
approval is not an actual or implied
lion.
commitment of grant assistance and
(b) The value engineering rec-
ommendations shall be implemented to the applicant proceeds at its own risk.
the maximum extent feasible. (b) Any procurement is subject to the
requirements of 40 CFR part 33, and in
(Approved by the Office of Management and the case of acquisition of eligible real
Budget under control number 2040–0027) property, 40 CFR part 4.
§ 35.2116 Collection system. (Approved by the Office of Management and
Except as provided in § 35.2032(c), if Budget under control number 2040–0027)
the project involves collection system [49 FR 6234, Feb. 17, 1984, as amended at 55
work, such work: FR 27097, June 29, 1990]
543
§ 35.2120 40 CFR Ch. I (7–1–00 Edition)
§ 35.2120 Infiltration/Inflow. capacity of 120 gallons per capita per

day under appendix A.G.2.a.
(a) General. The applicant shall dem-
onstrate to the Regional Administra- (Approved by the Office of Management and
tor’s satisfaction that each sewer sys- Budget under control number 2040–0027)
tem discharging into the proposed [49 FR 6234, Feb. 17, 1984, as amended at 50
treatment works project is not or will FR 45895, Nov. 4, 1985]
not be subject to excessive infiltration/
inflow. For combined sewers, inflow is § 35.2122 Approval of user charge sys-
tem and proposed sewer use ordi-
not considered excessive in any event. nance.
(b) Inflow. If the rainfall induced
If the project is for Step 3 grant as-
peak inflow rate results or will result
sistance, unless it is solely for acquisi-
in chronic operational problems during
tion of eligible land, the applicant
storm events, or the rainfall-induced must obtain the Regional Administra-
total flow rate exceeds 275 gpcd during tor’s approval of its user charge system
storm events, the applicant shall per- (§ 35.2140) and proposed (or existing)
form a study of the sewer system to de- sewer use ordinance § 35.2130). If the ap-
termine the quantity of excessive in- plicant has a sewer use ordinance or
flow and to propose a rehabilitation user charge system in affect, the appli-
program to eliminate the excessive in- cant shall demonstrate to the Regional
flow. All cases in which facilities are Administrator’s satisfaction that they
planned for the specific storage and/or meet the requirements of this part and
treatment of inflow shall be subject to are being enforced.
a cost-effectiveness analysis. (Approved by the Office of Management and
(c) Infiltration. (1) If the flow rate at Budget under control number 2040–0027)
the existing treatment facility is 120
gallons per capita per day or less dur- § 35.2123 Reserve capacity.
ing periods of high groundwater, the EPA will limit grant assistance for
applicant shall build the project in- reserve capacity as follows:
cluding sufficient capacity to transport (a) If EPA awarded a grant for a Step
and treat any existing infiltration. 3 interceptor segment before December
However, if the applicant believes any 29, 1981, EPA may award grants for re-
specific portion of its sewer system is maining interceptor segments included
subject to excessive infiltration, the in the facilities plan with reserve ca-
applicant may confirm its belief in a pacity as planned, up to 40 years.
cost-effectiveness analysis and propose (b) Except as provided in paragraph
a sewer rehabilitation program to (a) of this section, if EPA awards a
eliminate that specific excessive infil- grant for a Step 3 or Step 3 segment of
tration. a primary, secondary, or advanced
(2) If the flow rate at the existing treatment facility or its interceptors
treatment facility is more than 120 gal- included in the facilities plan before
lons per capita per day during periods October 1, 1984, the grant for that Step
3 or Step 3 segment, and any remaining
of high groundwater, the applicant
segments, may include 20 years reserve
shall either:
capacity.
(i) Perform a study of the sewer sys- (c) Except as provided in paragraph
tem to determine the quantity of ex- (b) of this section, after September 30,
cessive infiltration and to propose a 1984, no grant shall be made to provide
sewer rehabilitation program to elimi- reserve capacity for a project for sec-
nate the excessive infiltration; or ondary treatment or more stringent
(ii) If the flow rate is not signifi- treatment or new interceptors and ap-
cantly more than 120 gallons per capita purtenances. Grants for such projects
per day, request the Regional Adminis- shall be based on capacity necessary to
trator to determine that he may pro- serve existing needs (including existing
ceed without further study, in which needs of residential, commercial, in-
case the allowable project cost will be dustrial, and other users) as deter-
limited to the cost of a project with a mined on the date of the approval of
the Step 3 grant. Grant assistance
544
awarded after September 30, 1990 shall into the treatment works by industrial
be limited to the needs existing on Sep- users, unless the applicant is required
tember 30, 1990. to remove such pollutants introduced
(d) For any application with capacity from nonindustrial users.
in excess of that provided by this sec-
tion: § 35.2127 Federal facilities.
(1) All incremental costs shall be Grant assistance shall not be pro-
paid by the applicant. Incremental vided for costs to transport or treat
costs include all costs which would not wastewater produced by a facility that
have been incurred but for the addi- is owned and operated by the Federal
tional excess capacity, i.e., any cost in Government which contributes more
addition to the most cost-effective al- than 250,000 gallons per day or 5 per-
ternative with eligible reserve capacity cent of the design flow of the complete
described under paragraphs (a) and (b) waste treatment system, whichever is
of this section. less.
(2) It must be determined that the ac-
tual treatment works to be built meets
the requirements of the National Envi-
ronmental Policy Act and all applica- § 35.2130 Sewer use ordinance.
ble laws and regulations.
The sewer use ordinance (see also
(3) The Regional Administrator shall
§§ 35.2122 and 35.2208) or other legally
approve the plans, specifications and
binding document shall prohibit any
estimates for the actual treatment
new connections from inflow sources
works.
into the treatment works and require
(4) The grantee shall assure the Re-
that new sewers and connections to the
gional Administrator satisfactorily
treatment works are properly designed
that it has assessed the costs and fi-
and constructed. The ordinance or
nancial impacts of the actual treat-
other legally binding document shall
ment works and has the capability to
also require that all wastewater intro-
finance and manage their construction
duced into the treatment works not
and operation.
contain toxics or other pollutants in
(5) The grantee must implement a
amounts or concentrations that endan-
user charge system which applies to
ger public safety and physical integrity
the entire service area of the grantee.
of the treatment works; cause viola-
(6) The grantee shall execute appro-
tion of effluent or water quality limi-
priate grant conditions or releases pro-
tations; or preclude the selection of the
tecting the Federal Government from
most cost-effective alternative for
any claim for any of the costs of con-
wastewater treatment and sludge dis-
struction due to the additional capac-
posal.
ity.
§ 35.2125 Treatment of wastewater Budget under control number 2040–0027)
from industrial users.
(a) Grant assistance shall not be pro- § 35.2140 User charge system.
vided for a project unless the project is The user charge system (see §§ 35.2122
included in a complete waste treat- and 35.2208) must be designed to
ment system and the principal purpose produce adequate revenues required for
of both the project and the system is operation and maintenance (including
for the treatment of domestic waste- replacement). It shall provide that
water of the entire community, area, each user which discharges pollutants
region or district concerned. that cause an increase in the cost of
(b) Allowable project costs do not in- managing the effluent or sludge from
clude: the treatment works shall pay for such
(1) Costs of interceptor or collector increased cost. The user charge system
sewers constructed exclusively, or al- shall be based on either actual use
most exclusively, to serve industrial under paragraph (a) of this section, ad
users; or valorem taxes under paragraph (b) of
(2) Costs for control or removal of this section, or a combination of the
pollutants in wastewater introduced two.
545
§ 35.2140 40 CFR Ch. I (7–1–00 Edition)
(a) User charge system based on actual revenues generated by the system and
use. A grantee’s user charge system expenditures for operation and mainte-
based on actual use (or estimated use) nance (including replacement) of the
of wastewater treatment services shall treatment system, based on an ade-
provide that each user (or user class) quate budget identifying the basis for
pays its proportionate share of oper- determining the annual operation and
ation and maintenance (including re- maintenance costs and the costs of per-
placement) costs of treatment works sonnel, material, energy and adminis-
within the grantee’s service area, based tration.
on the user’s proportionate contribu- (e) Charges for operation and mainte-
tion to the total wastewater loading nance for extraneous flows. The user
from all users (or user classes). charge system shall provide that the
(b) User charge system based on ad va- costs of operation and maintenance for
lorem taxes. A grantee’s user charge all flow not directly attributable to
system which is based on ad valorem
users (i.e., infiltration/inflow) be dis-
taxes may be approved if:
tributed among all users based upon ei-
(1) On December 27, 1977, the grantee
ther of the following:
had in existence a system of dedicated
ad valorem taxes which collected reve- (1) In the same manner that it dis-
nues to pay the cost of operation and tributes the costs for their actual use,
maintenance of wastewater treatment or
works within the grantee’s service area (2) Under a system which uses one or
and the grantee has continued to use any combination of the following fac-
that system; tors on a reasonable basis:
(2) The ad valorem user charge sys- (i) Flow volume of the users;
tem distributes the operation and (ii) Land area of the users;
maintenance (including replacement) (iii) Number of hookups or discharges
costs for all treatment works in the of the users;
grantee’s jurisdiction to the residential (iv) Property valuation of the users,
and small non-residential user class if the grantee has an approved user
(including at the grantee’s option non- charge system based on ad valorem
residential, commercial and industrial taxes.
users that introduce no more than the (f) After completion of building a
equivalent of 25,000 gallons per day of project, revenue from the project (e.g.,
domestic sanitary wastes to the treat- sale of a treatment-related by-product;
ment works), in proportion to the use lease of the land; or sale of crops grown
of the treatment works by this class; on the land purchased under the grant
and agreement) shall be used to offset the
(3) Each member of the industrial costs of operation and maintenance.
user and commercial user class which
The grantee shall proportionately re-
discharges more than 25,000 gallons per
duce all user charges.
day of sanitary waste pays its share of
the costs of operation and maintenance (g) Adoption of system. One or more
(including replacement) of the treat- municipal legislative enactments or
ment works based upon charges for ac- other appropriate authority must in-
tual use. corporate the user charge system. If
(c) Notification. Each user charge sys- the project accepts wastewater from
tem must provide that each user be no- other municipalities, the subscribers
tified, at least annually, in conjunction receiving waste treatment services
with a regular bill (or other means ac- from the grantee shall adopt user
ceptable to the Regional Adminis- charge systems in accordance with this
trator), of the rate and that portion of section. These user charge systems
the user charges or ad valorem taxes shall also be incorporated in appro-
which are attributable to wastewater priate municipal legislative enact-
treatment services. ments or other appropriate authority
(d) Financial management system. Each of all municipalities contributing
user charge system must include an wastes to the treatment works.
adequate financial management sys- (h) Inconsistent agreements. The user
tem that will accurately account for charge system shall take precedence
546
over any terms or conditions of agree- plan approved by the Regional Admin-
ments or contracts which are incon- istrator before October 1, 1984;
sistent with the requirements of sec- (ii) The Step 3 grant for the initial
tion 204(b)(1)(A) of the Act and this sec- phase or segment of the treatment
tion. works described in (a)(3)(i) of this sec-
(i) Low income residential user rates. (1) tion is awarded prior to October 1, 1984;
Grantees may establish lower user and
charge rates for low income residential (iii) The phase or segment that re-
users after providing for public notice ceives 75 percent funding is necessary
and hearing. A low income residential to (A) make a phase or segment pre-
user is any residence with a household viously funded by EPA operational and
income below the Federal poverty level comply with the enforceable require-
as defined in 45 CFR 1060.2 or any resi- ments of the Act, or (B) complete the
dence designated as low income under treatment works referenced in (a)(3)(i)
State law or regulation. of this section provided that all phases
(2) Any lower user charge rate for low or segments previously funded by EPA
income residential users must be de- are operational and comply with the
fined as a uniform percentage of the enforceable requirements of the Act.
user charge rate charged other residen- (b) Innovative and alternative tech-
tial users. nology. In accordance with § 35.2032, the
(3) The costs of any user charge re- Federal share for eligible treatment
ductions afforded a low income residen- works or unit processes and techniques
tial class must be proportionately ab- that the Regional Administrator deter-
sorbed by all other user classes. The mines meet the definition of innova-
total revenue for operation and main- tive or alternative technology shall be
tenance (including equipment replace- 20 percent greater than the Federal
ment) of the facilities must not be re- share under paragraph (a) or (c) of this
duced as a result of establishing a low section, but in no event shall the total
income residential user class. Federal share be greater than 85 per-
cent. This increased Federal share de-
pends on the availability of funds from
the reserve under § 35.2020. The propor-
[49 FR 6234, Feb. 17, 1984, as amended at 55 tional State contribution to the non-
FR 27097, June 29, 1990] Federal share of building costs for I/A
projects must be the same as or greater
§ 35.2152 Federal share.
than the proportional State contribu-
(a) General. The Federal share for tion (if any) to the non-Federal share
each project shall be based on the sum of eligible building costs for all treat-
of the total Step 3 or Step 7 allowable ment works which receive 75 or 55 per-
costs and the allowance established in cent grants or such other Federal share
the grant agreement under appendix B. under paragraph (c) of this section in
Except as provided elsewhere in this the State.
section, the Federal share shall be: (c) A project for which an application
(1) 75 percent for grant assistance for grant assistance has been made be-
awarded before October 1, 1984; fore October 1, 1984, but which was
(2) 55 percent for grant assistance under judicial injunction at that time
awarded after September 30, 1984, ex- prohibiting its construction, shall be
cept as provided in paragraph (a)(3) of eligible for a grant at 75 percent of the
this section; and cost of its construction.
(3) Subject to paragraphs (c) and (d) (d) Uniform lower Federal share. (1) Ex-
of this section, 75 percent for grant as- cept as provided in § 35.2032 (c) and (d)
sistance awarded after September 30, of this section, the Governor of a State
1984 and before October 1, 1990, for se- may request the Regional Administra-
quential phases or segments of a pri- tor’s approval to revise uniformly
mary, secondary, or advanced treat- throughout the State the Federal share
ment facility or its interceptors, or in- of grant assistance for all future
filtration/inflow correction provided: projects. The revised Federal share
(i) The treatment works being phased must apply to all needs categories (see
or segmented is described in a facilities § 35.2015(b)(2)).
547
§ 35.2200 40 CFR Ch. I (7–1–00 Edition)
(2) After EPA awards grant assist- § 35.2203 Step 7 projects.

ance for a project, the Federal share (a) Prior to initiating action to ac-
shall be the same for any grant inquire real property, a Step 7 grantee
crease that is within the scope of the shall submit for Regional Adminis-
project. trator review and written approval the
(3) The uniform lower Federal share information required under
established by the Governor does not § 35.2040(b)(7).
apply to projects funded under (b) Before approving a Step 7 grant
§ 35.2024(b). amendment under § 25.2036, the Re-
(e) Training facilities. The Federal gional Administrator shall determine
share of treatment works required to that the applicant and its project have
train and upgrade waste treatment met the requirements of §§ 35.2040 (b)(6)
works operations and maintenance per- and (g), 35.2106, 35.2107, and 35.2122.
sonnel may be up to 100 percent of the [55 FR 27097, June 29, 1990]
allowable cost of the project.
(1) Where a grant is made to serve § 35.2204 Project changes.
two or more States, the Administrator (a) Minor changes in the project work
is authorized to make an additional that are consistent with the objectives
grant for a supplemental facility in of the project and within the scope of
each State. The Federal funds awarded the grant agreement do not require the
to any State under section 109(b) for all execution of a formal grant amend-
training facilities shall not exceed ment before the grantee’s implementa-
$500,000. tion of the change. However, the
(2) Any grantee who received a grant amount of the funding provided by the
under section 109(b) before December grant agreement may only be increased
27, 1977, may have the grant increased by a formal grant amendment.
up to $500,000 by funds made available (b) The grantee must receive from
under the Act, not to exceed 100 per- the Regional Administrator a formal
cent of the allowable costs. grant amendment before implementing
changes which:
(Approved by the Office of Management and (1) Alter the project performance
Budget under control number 2040–0027) standards;
[49 FR 6234, Feb. 17, 1984, as amended at 50 (2) Alter the type of wastewater
FR 45896, Nov. 4, 1985; 55 FR 27097, June 29, treatment provided by the project;
1990] (3) Significantly delay or accelerate
the project schedule;
§ 35.2200 Grant conditions. (4) Substantially alter the facilities
In addition to the EPA General plan, design drawings and specifica-
Grant Conditions (part 30 of this sub- tions, or the location, size, capacity, or
quality of any major part of the
chapter), each treatment works grant
project; or
shall be subject to the conditions under
(5) Otherwise require a formal grant
§§ 35.2202 through 35.2218.
amendment under part 30 of this sub-
§ 35.2202 Step 2=3 projects. chapter.
(c) Notwithstanding paragraph (a) of
(a) Prior to initiating action to ac- this section, changes to Step 7 projects
quire eligible real property, a Step 2=3 cannot increase the amount of EPA as-
grantee shall submit for Regional Ad- sistance established at the time of the
ministrator review and written ap- grant amendment.
proval the information required under [49 FR 6234, Feb. 17, 1984, as amended at 55
§ 35.2040(b)(7). FR 27097, June 29, 1990]
(b) Before initiating procurement ac-
tion for the building of the project, a § 35.2205 Maximum allowable project
Step 2=3 grantee shall submit for the cost.
Regional Administrator’s review and (a) Grants awarded on or after the ef-
written approval the information re- fective date of this regulation. Except as
quired under §§ 35.2040(b) (5) and (6), provided in paragraph (c) of this sec-
35.2106, 35.2107, 35.2130 and 35.2140. tion, for Step 2=3 or Step 3 grants
548
awarded on or after the effective date istrator has approved the final plan of
of this regulation, the maximum allow- operation required by § 35.2106, and
able project cost will be the sum of: shall not pay more than 90 percent of
(1) The allowable cost of the fol- the Federal share of any project unless
lowing: the grantee has furnished and the Re-
(i) The initial award amount of all gional Administrator has approved an
project subagreements between the operation and maintenance manual.
grantee and its contractors; (c)(1) In projects where segmenting of
(ii) The initial amounts approved for a proposed treatment works has oc-
force account work to be performed on curred, the Regional Administrator
the project; shall not pay more than 90 percent of
(iii) The purchase price of eligible the Federal share of the total allowable
real property; and costs of the proposed treatment works
(iv) The initial amount approved for until the grantee has furnished and the
project costs not included under para- Regional Administrator has approved
graphs (a)(1)(i) through (a)(1)(iii) of an operation and maintenance manual.
this section, excluding any amounts (2) In projects where a component is
approved for an allowance under placed in operation before completion
§ 35.2025 and for contingencies; and of the entire project, the Regional Ad-
(2) Five percent of the sum of the ministrator shall not make any addi-
amounts included under paragraphs tional payment on that project until a
(a)(1)(i) through (a)(1)(iv) of this sec- final operation and maintenance man-
tion. ual for the operating component is fur-
(b) Grants awarded before the effective nished and approved.
date of the regulation. Except as pro-
vided in paragraph (c) of this section, (Approved by the Office of Management and
for Step 2=3 or Step 3 grants awarded Budget under control number 2040–0027)
before the effective date of this regula-
tion, the maximum allowable increase § 35.2208 Adoption of sewer use ordi-
nance and user charge system.
in the cost for work covered by each
subagreement finally advertised or, The grantee shall adopt its sewer use
where there will be no advertisement, ordinance and implement its user
each subagreement awarded on or after charge system developed under
the effective date of this regulation §§ 35.2130 and 35.2140 before the treat-
will be five percent of the initial award ment works is placed in operation. Fur-
amount of the subagreement. ther, the grantee shall implement the
(c) Differing site conditions. In deter- user charge system and sewer use ordi-
mining whether the maximum allow- nance for the useful life of the treat-
able project cost or increase in sub- ment works.
agreement cost will be exceeded, costs
of equitable adjustments for differing § 35.2210 Land acquisition.
site conditions will be exempt, pro- The grantee shall not acquire real
vided the requirements of 40 CFR part property determined allowable for
35, subpart I, appendix A, paragraph grant assistance until the Regional Ad-
A.1.g. and all other applicable laws and ministrator has determined that appli-
regulations have been met. cable provisions of 40 CFR part 4 have
[50 FR 46649, Nov. 12, 1985] been met.
§ 35.2206 Operation and maintenance. § 35.2211 Field testing for Innovative

and Alternative Technology Report.
(a) The grantee must assure economi-
cal and effective operation and mainte- The grantee shall submit a report
nance (including replacement) of the containing the procedure, cost, results
treatment works. and conclusions of any field testing.
(b) Except as provided in paragraphs The report shall be submitted to the
(c) (1) and (2) of this section, the Re- Regional Administrator in accordance
gional Administrator shall not pay with a schedule to be specified in the
more than 50 percent of the Federal grant agreement.
share of any project unless the grantee (Approved by the Office of Management and
has furnished and the Regional Admin- Budget under control number 2040–0027)
549
§ 35.2212 40 CFR Ch. I (7–1–00 Edition)
§ 35.2212 Project initiation. nancial management system under

(a) The grantee shall expeditiously § 35.2140(d) that adequately accounts for
initiate and complete the project, in revenues and expenditures; the user
accordance with the project schedule charge system under § 35.2140 that will
contained in the grant application and generate sufficient revenue to operate
agreement. Failure to promptly ini- and maintain the treatment works; the
tiate and complete a project may re- project schedule; and all other applica-
sult in the imposition of sanctions ble regulations. The grantee shall
under part 30 of this chapter. maintain and operate the project to
(b) The grantee shall initiate pro- meet project performance standards in-
curement action for building the cluding the enforceable requirements
project promptly after award of a Step of the Act for the design life.
3 grant or, after receiving written ap- (b) The grantee shall provide the ar-
proval of the information required chitectural and engineering services
under § 35.2202 under a Step 2=3 grant and other services necessary to fulfill
or, for a Step 7 project, after com- the obligation in paragraph (a) of this
pleting the facilities plan and the prep- section.
aration of a pre-bid package that is suf-
§ 35.2216 Notice of building completion
ficiently detailed to insure that the and final inspection.
bids received form the design/build
work will be complete, accurate, com- The grantee shall notify the Regional
parable and will result in a cost-effec- Administrator when the building of the
tive operable facility. Public notice of project is complete. Final inspection
proposed procurement action should be shall be made by the Regional Admin-
made promptly after Step 3 award or istrator after receipt of the notice of
after final approvals for a Step 2=3 building completion.
grant under § 35.2202, or after com- (Approved by the Office of Management and
pleting the pre-bid package for the Budget under control number 2040–0027)
Step 7 award. The grantee shall award
the subagreement(s) and issue notice(s) § 35.2218 Project performance.
to proceed, where required, for building (a) The grantee shall notify the Re-
all significant elements of the project gional Administrator in writing of the
within twelve months of the Step 3 actual date of initiation of operation.
award or final Step 2=3 approvals. (b) Subject to the provisions of 40
(c) Failure to promptly award all CFR part 33, the grantee shall select
subagreement(s) for building the the engineer or engineering firm prin-
project will result in a limitation on cipally responsible for either super-
allowable costs. (See appendixes A, vising construction or providing archi-
A.2.e.). tectural and engineering services dur-
(d) The grantee shall notify the Re- ing construction as the prime engineer
gional Administrator immediately to provide the following services during
upon award of the subagreement(s) for the first year following the initiation
building all significant elements of the of operation:
project (see 40 CFR 33.211).
(1) Direct the operation of the project
(Approved by the Office of Management and and revise the operation and mainte-
Budget under control number 2040–0027) nance manual as necessary to accom-
[49 FR 6234, Feb. 17, 1984, as amended at 55 modate actual operating experience;
FR 27097, June 29, 1990] (2) Train or provide for training of
operating personnel and prepare cur-
§ 35.2214 Grantee responsibilities. ricula and training material for oper-
(a) The grantee shall complete the ating personnel; and
project in accordance with the grant (3) Advise the grantee whether the
agreement including: The facilities project is meeting the project perform-
plan that establishes the need for the ance standards.
project; the design drawings and speci- (c) On the date one year after the ini-
fications; the plan of operation under tiation of operation of the project, the
§ 35.2106 that identifies the basis to de- grantee shall certify to the Regional
termine annual operating costs; the fi- Administrator whether the project
550
meets the project performance stand- § 35.2260 Advance purchase of eligible

ards. If the Regional Administrator or land.
the grantee concludes that the project In the case of grant assistance award-
does not meet the project performance ed solely for the acquisition of eligible
standards, the grantee shall submit the land, the following provisions are de-
following: ferred until the award of the ensuing
(1) A corrective action report which Step 3 assistance for the building of fa-
includes an analysis of the cause of the cilities: §§ 35.2105, 35.2130, 35.2140, 35.2206
project’s failure to meet the perform- and 35.2208.
ance standards (including the quantity
of infiltration/inflow proposed to be § 35.2262 Funding of field testing.
eliminated), and an estimate of the na- In the case of grant assistance for
ture, scope and cost of the corrective field testing of innovative or alter-
action necessary to bring the project native wastewater process and tech-
into compliance; niques, the following provisions are de-
(2) The schedule for undertaking in a ferred until the award of assistance for
timely manner the corrective action building the approved facilities:
§§ 35.2105, 35.2106, 35.2122, 35.2130, 35.2140,
necessary to bring the project into
35.2206, and 35.2208.
compliance; and
(3) The scheduled date for certifying § 35.2300 Grant payments.
to the Regional Administrator that the Except as provided in § 35.2206, the
project is meeting the project perform- Regional Administrator shall pay the
ance standards. Federal share of the allowance under
(d) Except as provided in § 35.2032(c) § 35.2025 and the allowable project costs
the grantee shall take corrective ac- incurred to date and currently due and
tion necessary to bring a project into payable by the grantee, as certified in
compliance with the project perform- the grantee’s most recent payment re-
ance standards at its own expense. This quest.
limitation on Federal funding for cor- (a) Adjustment. The Regional Admin-
rective actions does not apply to train- istrator may at any time review and
ing funds under section 104(g)(1) of the audit requests for payment and pay-
Act. ments and make appropriate adjust-
(e) Nothing in this section: ments as provided in part 30 of this
(1) Prohibits a grantee from requiring chapter.
more assurances, guarantees, or indem- (b) Refunds, rebates and credits. The
nity or other contractual requirements Federal share of any refunds, rebates,
credits, or other amounts (including
from any party performing project
any interest) that accrue to or are re-
work; or
ceived by the grantee for the project,
(2) Affects EPA’s right to take reme- and that are properly allocable to costs
dial action, including enforcement, for which the grantee has been paid
against a grantee that fails to carry under a grant, must be credited to the
out its obligations under § 35.2214. current State allotment or paid to the
(Approved by the Office of Management and United States. Examples include re-
Budget under control number 2040–0027) bates for prompt payment and sales tax
refunds. Reasonable expenses incurred
[49 FR 6234, Feb. 17, 1984, as amended at 55 by the grantee securing such refunds,
FR 27098, June 29, 1990]
rebates, credits, or other amounts shall
§ 35.2250 Determination of allowable be allowable under the grant when ap-
costs. proved by the Regional Administrator.
(c) Release. By its acceptance of final
The Regional Administrator will de- payment, the grantee releases and dis-
termine the allowable costs of the charges the United States, its officers,
project based on applicable provisions agents, and employees from all liabil-
of laws and regulations, the scope of ities, obligations, and claims arising
the approved project, § 30.705 of this out of the project work or under the
subchapter, and appendix A of this subgrant, subject only to exceptions pre-
part. viously specified in writing between
551
§ 35.2350 40 CFR Ch. I (7–1–00 Edition)
the Regional Administrator and the the enforcement of such subagree-

grantee. ments, including subagreement dis-
(d) Payment of costs incurred under the putes which are the subject of either
Uniform Relocation Assistance and Real arbitration or court action.
Property Acquisition Policies Act. Not- (b) Privity of subagreement. The Re-
withstanding the provisions of the in- gional Administrator’s technical or
troductory paragraph of this section, if legal involvement in any subagreement
the Regional Administrator determines dispute will not make EPA a party to
it is necessary for the expeditious com- any subagreement entered into by the
pletion of a project, he may make ad- grantee.
vance payment after grant award for (c) Grantee responsibilities. The provi-
the Federal share of the eligible cost of sion of technical or legal assistance
any payment of relocation assistance under this section in no way releases
under § 4.502(c) of this chapter by the the grantee from its obligations under
grantee. The requirements in part 30 of § 35.2214, or affects EPA’s right to take
this subchapter apply to any advances remedial action, including enforce-
of funds for assistance payments. ment, against a grantee that fails to
(e) Payment under grants to States for carry out those obligations.
advances of allowance—(1) Advance pay-
ment to State. Notwithstanding the pro- APPENDIX A TO SUBPART I—
visions of the introductory paragraph DETERMINATION OF ALLOWABLE COSTS
of this section, the Regional Adminis-
trator, under a State grant for ad- (a) Purpose. The information in this appen-
vances of allowance (see § 35.2025), may dix represents Agency policies and proce-
make payments on an advance or let- dures for determining the allowability of
ter-of-credit payment method in ac- project costs based on the Clean Water Act,
EPA policy, appropriate Federal cost prin-
cordance with the requirements under ciples under part 30 of this subchapter and
part 30 of this chapter. The State and reasonableness.
the Regional Administrator shall agree (b) Applicability. This cost information ap-
to the payment terms. plies to grant assistance awarded on or after
(2) Assignment. If the State chooses to the effective date of this regulation. Project
assign its payments to a potential cost determinations under this subpart are
grant applicant, it shall execute an not limited to the items listed in this appen-
agreement with the potential grant ap- dix. Additional cost determinations based on
plicant authorizing direct payment applicable law and regulations must of
course be made on a project-by-project basis.
from EPA and establishing appropriate
Those cost items not previously included in
terms for payment. The State shall program requirements are not mandatory for
provide a copy of the agreement to decisions under grants awarded before the ef-
EPA. fective date. They are only to be used as
(f) Design/build projects. For design/ guidance in those cases.
build projects, the Regional Adminis-
trator shall not pay more than 95 per- A. Costs Related to Subagreements
cent of the grant amount until comple- 1. Allowable costs related to subagree-
tion of building and the RA’s final ments include:
project approval (see § 35.2036(a)(6)). a. The costs of subagreements for building
the project.
b. The costs of complying with the pro-
curement requirements of part 33 of this sub-
[49 FR 6234, Feb. 17, 1984, as amended at 55 chapter, other than the costs of self-certifi-
FR 27098, June 29, 1990] cation under § 33.110.
c. The cost of legal and engineering serv-
§ 35.2350 Subagreement enforcement. ices incurred by grantees in deciding pro-
(a) Regional Administrator authority. curement protests and defending their deci-
At the grantee’s request the Regional sions in protest appeals under subpart G of 40
CFR part 33.
Administrator may provide technical
d. The costs for establishing or using mi-
and legal assistance in the administra- nority and women’s business liaison services.
tion and enforcement of any subagree- e. The costs of services incurred during the
ment related to treatment works for building of a project to ensure that it is built
which an EPA grant was made and to in conformance with the design drawings and
intervene in any civil action involving specifications.
552
Environmental Protection Agency Pt. 35, Subpt. I, App. A
f. The costs (including legal, technical, and k. The specific and unique costs of field
administrative costs) of assessing the merits testing an innovative or alternative process
of or negotiating the settlement of a claim or technique, which may include equipment
by or against a grantee under a sub- leasing costs, personnel costs, and utility
agreement provided: costs necessary for constructing, conducting,
(1) The claim arises from work within the and reporting the results of the field test.
scope of the grant; 2. Unallowable costs related to subagree-
(2) A formal grant amendment is executed ments include:
specifically covering the costs before they a. The costs of architectural or engineering
are incurred; services incurred in preparing a facilities
(3) The costs are not incurred to prepare plan and the design drawings and specifica-
documentation that should be prepared by tions for a project. This provision does not
the contractor to support a claim against apply to planning and design costs incurred
the grantee; and in the modification or replacement of an in-
(4) The Regional Administrator determines novative or alternative project funded under
that there is a significant Federal interest in § 35.2032(c).
the issues involved in the claim. b. Except as provided in 1.g. above, archi-
g. Change orders and the costs of meri- tectural or engineering services or other
torious contractor claims for increased costs services necessary to correct defects in a fa-
under subagreements as follows: cilities plan, design drawings and specifica-
(1) Change orders and the costs of meri- tions, or other subagreement documents.
c. The costs (including legal, technical and
torious contractor claims provided the costs
administrative) of defending against a con-
are:
tractor claim for increased costs under a
(i) Within the scope of the project;
subagreement or of prosecuting a claim to
(ii) Not caused by the grantee’s mis-
enforce any subagreement unless:
management; and (1) The claim arises from work within the
(iii) Not caused by the grantee’s vicarious scope of the grant;
liability for the improper actions of others. (2) A formal grant amendment is executed
(2) Provided the requirements of paragraph specifically covering the costs before they
g(1) are met, the following are examples of are incurred;
allowable change orders and contractor (3) The claim cannot be settled without ar-
claim costs: bitration or litigation;
(i) Building costs resulting from defects in (4) The claim does not result from the
the plans, design drawings and specifica- grantee’s mismanagement;
tions, or other subagreement documents (5) The Regional Administrator determines
only to the extent that the costs would have that there is a significant Federal interest in
been incurred if the subagreement docu- the issues involved in the claim; and
ments on which the bids were based had been (6) In the case of defending against a con-
free of the defects, and excluding the costs of tractor claim, the claim does not result from
any rework, delay, acceleration, or disrup- the grantee’s responsibility for the improper
tion caused by such defects; action of others.
(ii) Costs of equitable adjustments under d. Bonus payments, not legally required,
Clause 4, Differing Site Conditions, of the for completion of building before a contrac-
model subagreement clauses required under tual completion date.
§ 33.1030 of this subchapter. e. All incremental costs due to the award
(3) Settlements, arbitration awards, and of any subagreements for building signifi-
court judgments which resolve contractor cant elements of the project more than 12
claims shall be reviewed by the grant award months after the Step 3 grant award or final
official and shall be allowable only to the ex- Step 2=3 approvals unless specified in the
tent that they meet the requirements of project schedule approved by the Regional
paragraph g(1), are reasonable, and do not at- Administrator at the time of grant award.
tempt to pass on to EPA the cost of events
that were the responsibility of the grantee, B. Mitigation
the contractor, or others. 1. Allowable costs include:
h. The costs of the services of the prime a. Costs necessary to mitigate only direct,
engineer required by § 35.2218 during the first adverse, physical impacts resulting from
year following initiation of operation of the building of the treatment works.
project. b. The costs of site screening necessary to
i. The cost of development of a plan of op- comply with NEPA related studies and facili-
eration including an operation and mainte- ties plans, or necessary to screen adjacent
nance manual required by § 35.2106. properties.
j. Start-up services for onsite training of c. The cost of groundwater monitoring fa-
operating personnel in operation and control cilities necessary to determine the possi-
of specific treatment processes, laboratory bility of groundwater deterioration, deple-
procedures, and maintenance and records tion or modification resulting from building
management. the project.
553
Pt. 35, Subpt. I, App. A 40 CFR Ch. I (7–1–00 Edition)
2. Unallowable costs include: Administrator approves it in the grant
a. The costs of solutions to aesthetic prob- agreement. These costs include:
lems, including design details which require (1) The cost of a reasonable amount of
expensive building techniques and architec- land, considering irregularities in applica-
tural features and hardware, that are unrea- tion patterns, and the need for buffer areas,
sonable or substantially higher in cost than berms, and dikes;
approvable alternatives and that neither en- (2) The cost of land acquired for a soil ab-
hance the function or appearance of the sorption system for a group of two or more
treatment works nor reflect regional archi- homes;
tectural tradition. (3) The cost of land acquired for com-
b. The cost of land acquired for the mitiga- posting or temporary storage of compost
tion of adverse environmental effects identi- residues which result from wastewater treat-
fied pursuant to an environmental review ment;
under NEPA. (4) The cost of land acquired for storage of
treated wastewater in land treatment sys-
C. Privately or Publicly Owned Small and tems before land application. The total land
Onsite Systems area for construction of a pond for both
1. Allowable costs for small and onsite sys- treatment and storage of wastewater is al-
tems serving residences and small commer- lowable if the volume necessary for storage
cial establishments inhabited on or before is greater then the volume necessary for
December 27, 1977, include a. through e. treatment. Otherwise, the allowable cost will
below. Alternatively, the two-thirds rule at be determined by the ratio of the storage
40 CFR § 35.2116(b) may be used to determine volume to the total volume of the pond.
allowable residential flows to be served by b. The cost of complying with the require-
publicly owned small and alternative waste- ments of the Uniform Relocation Assistance
water systems, including a. through e. below: and Real Property Acquisition Policies Act
a. The cost of major rehabilitation, up- of 1970 (42 U.S.C. 4621 et seq., 4651 et seq.),
grading, enlarging and installing small and under part 4 of this chapter for land nec-
onsite systems, but in the case of privately essary for the building of treatment works.
owned systems, only for principal residences. c. The cost of contracting with another
b. Conveyance pipes from property line to public agency or qualified private contractor
offsite treatment unit which serves a cluster for part or all of the required acquisition
of buildings. and/or relocation services.
c. Treatment and treatment residue dis- d. The cost associated with the preparation
posal portions of toilets with composting of the treatment works site before, during
tanks, oil flush mechanisms, or similar in- and, to the extent agreed on in the grant
house devices. agreement, after building. These costs in-
d. Treatment or pumping units from the clude:
incoming flange when located on private (1) The cost of demolition of existing struc-
property and conveyance pipes, if any, to the tures on the treatment works site (including
collector sewer. rights-of-way) if building cannot be under-
e. The cost of restoring individual system taken without such demolition;
building sites to their original condition. (2) The cost (considering such factors as
2. Unallowable costs for small and onsite betterment, cost of contracting and useful
systems include: life) of removal, relocation or replacement of
a. Modification to physical structure of utilities, provided the grantee is legally obli-
homes or commercial establishments. gated to pay under state or local law; and
b. Conveyance pipes from the house to the (3) The cost of restoring streets and rights-
treatment unit located on user’s property or of-way to their original condition. The need
from the house to the property line if the for such restoration must result directly
treatment unit is not located on that user’s from the construction and is generally lim-
property. ited to repaving the width of trench.
c. Wastewater generating fixtures such as e. The cost of acquiring all or part of an
commodes, sinks, tubs, and drains. existing publicly or privately owned waste-
water treatment works provided all the fol-
D. Real Property lowing criteria are met:
1. Allowable costs for land and rights-of- (1) The acquisition, in and of itself, consid-
way include: ered apart from any upgrade, expansion or
a. The cost (including associated legal, ad- rehabilitation, provides new pollution con-
ministrative and engineering costs) of land trol benefits;
acquired in fee simple or by lease or ease- (2) The acquired treatment works was not
ment under grants awarded after October 17, built with previous Federal or State finan-
1972, that will be an integral part of the cial assistance;
treatment process or that will be used for (3) The primary purpose of the acquisition
the ultimate disposal of residues resulting is not the reduction, elimination, or redis-
from such treatment provided the Regional tribution of public or private debt; and
554
Environmental Protection Agency Pt. 35, Subpt. I, App. A
(4) The acquisition does not circumvent wastes from the collector point (including
the requirements of the Act, these regula- individual or on-site systems) to the treat-
tions, or other Federal, State or local re- ment facility or disposal site.
quirements. g. Replacement parts identified and ap-
2. Unallowable costs for land and rights-of- proved in advance by the Regional Adminis-
way include: trator as necessary to assure uninterrupted
a. The costs of acquisition (including asso- operation of the facility, provided they are
ciated legal, administrative and engineering critical parts or major systems components
etc.) of sewer rights-of-way, waste treatment which are:
plant sites (including small system sites), (1) Not immediately available and/or whose
sanitary landfill sites and sludge disposal procurement involves an extended ‘‘lead-
areas except as provided in paragraphs 1. a.
time;’’
and b. of this section.
b. Any amount paid by the grantee for eli- (2) Identified as critical by the equipment
gible land in excess of just compensation, supplier(s); or
based on the appraised value, the grantee’s (3) Critical but not included in the inven-
record of negotiation or any condemnation tory provided by the equipment supplier(s).
proceeding, as determined by the Regional 2. Unallowable costs of equipment, mate-
Administrator. rials and supplies include:
c. Removal, relocation or replacement of a. The costs of equipment or material pro-
utilities located on land by privilege, such as cured in violation of the procurement re-
franchise. quirements of 40 CFR part 33.
b. The cost of furnishings including drap-
E. Equipment, Materials and Supplies eries, furniture and office equipment.
1. Allowable costs of equipment, materials c. The cost of ordinary site and building
and supplies include: maintenance equipment such as lawnmowers
a. The cost of a reasonable inventory of and snowblowers.
laboratory chemicals and supplies necessary d. The cost of vehicles for the transpor-
to initiate plant operations and laboratory tation of the grantees’ employees.
items necessary to conduct tests required for e. Items of routine ‘‘programmed’’ mainte-
plant operation. nance such as ordinary piping, air filters,
b. The costs for purchase and/or transpor- couplings, hose, bolts, etc.
tation of biological seeding materials re-
quired for expeditiously initiating the treat- F. Industrial and Federal Users
ment process operation.
c. Cost of shop equipment installed at the 1. Except as provided in paragraph F.2.a.,
treatment works necessary to the operation allowable costs for treatment works serving
of the works. industrial and Federal facilities include de-
d. The costs of necessary safety equipment, velopment of a municipal pretreatment pro-
provided the equipment meets applicable gram approvable under part 403 of this chap-
Federal, State, local or industry safety re- ter, and purchase of monitoring equipment
quirements. and construction of facilities to be used by
e. A portion of the costs of collection sys- the municipal treatment works in the
tem maintenance equipment. The portion of pretreatment program.
allowable costs shall be the total equipment 2. Unallowable costs for treatment works
cost less the cost attributable to the equip- serving industrial and Federal facilities in-
ment’s anticipated use on existing collection clude:
sewers not funded on the grant. This calcula- a. The cost of developing an approvable
tion shall be based on: (1) The portion of the municipal pretreatment program when per-
total collection system paid for by the grant, formed solely for the purpose of seeking an
(2) a demonstrable frequency of need, and (3) allowance for removal of pollutants under
the need for the equipment to preclude the part 403 of this chapter.
discharge or bypassing of untreated waste- b. The cost of monitoring equipment used
water. by industry for sampling and analysis of in-
f. The cost of mobile equipment necessary dustrial discharges to municipal treatment
for the operation of the overall wastewater works.
treatment facility, transmission of waste-
c. All incremental costs for sludge manage-
water or sludge, or for the maintenance of
ment incurred as a result of the grantee pro-
equipment. These items include:
viding removal credits to industrial users
(1) Portable stand-by generators;
under 40 CFR 403.7 beyond those sludge man-
(2) Large portable emergency pumps to
agement costs that would otherwise be in-
provide ‘‘pump-around’’ capability in the
curred in the absence of such removal cred-
event of pump station failure or pipeline
its.
breaks; and
(3) Sludge or septage tankers, trailers, and G. Infiltration/Inflow
other vehicles having as their sole purpose
the transportation of liquid or dewatered 1. Allowable costs include:
555
Pt. 35, Subpt. I, App. A 40 CFR Ch. I (7–1–00 Edition)
a. The cost of treatment works capacity (iii) The costs of rework, delay, accelera-
adequate to transport and treat nonexcessive tion or disruption that are a result of build-
infiltration/inflow under § 35.2120. ing the additions are not included in the
b. The costs of sewer system rehabilitation grant; and
necessary to eliminate excessive infiltration/ (iv) The grant does not include an allow-
inflow as determined in a sewer system ance for facilities planning or design of the
study under § 35.2120. additions.
2. Unallowable costs include: (4) This provision applies to failures that
a. When the Regional Administrator deter- occur either before or after the initiation of
mines that the flow rate is not significantly operation. This provision does not cover a
more than 120 gallons per capita per day treatment works that fails at the end of its
under § 35.2120(c)(2)(ii), the incremental cost design life.
of treatment works capacity which is more e. Costs of royalties for the use of or rights
than 120 gallons per capita per day. in a patented process or product with the
prior approval of the Regional Adminis-
H. Miscellaneous Costs trator.
1. Allowable costs include: f. Costs allocable to the water pollution
a. The costs of salaries, benefits and ex- control purpose of multiple purpose projects
pendable materials the grantee incurs for the as determined by applying the Alternative
project. Justifiable Expenditure (AJE) method de-
b. Unless otherwise specified in this regula- scribed in the CG series. Multiple purpose
tion, the costs of meeting specific Federal projects that combine wastewater treatment
statutory procedures. with recreation do not need to use the AJE
c. Costs for necessary travel directly re- method, but can be funded at the level of the
lated to accomplishment of project objec- most cost-effective single-purpose alter-
tives. Travel not directly related to a spe- native.
cific project, such as travel to professional g. Costs of grantee employees attending
meetings, symposia, technology transfer training workshops/seminars that are nec-
seminars, lectures, etc., may be recovered essary to provide instruction in administra-
only under an indirect cost agreement. tive, fiscal or contracting procedures re-
d. The costs of additions to a treatment quired to complete the construction of the
works that was assisted under the Federal treatment works, if approved in advance by
Water Pollution Control Act of 1956 (Pub. L. the Regional Administrator.
84–660), or its amendments, and that fails to 2. Unallowable costs include:
meet its project performance standards pro- a. Ordinary operating expenses of the
vided: grantee including salaries and expenses of
(1) The project is identified on the State elected and appointed officials and prepara-
priority list as a project for additions to a tion of routine financial reports and studies.
treatment works that has received previous b. Preparation of applications and permits
Federal funds; required by Federal, State or local regula-
(2) The grant application for the additions tions or procedures.
includes an analysis of why the treatment c. Administrative, engineering and legal
works cannot meet its project performance activities associated with the establishment
standards; and of special departments, agencies, commis-
(3) The additions could have been included sions, regions, districts or other units of gov-
in the original grant award and: ernment.
(a) Are the result of one of the following: d. Approval, preparation, issuance and sale
(i) A change in the project performance of bonds or other forms of indebtedness re-
standards required by EPA or the State; quired to finance the project and the interest
(ii) A written understanding between the on them.
Regional Administrator and grantee prior to e. The costs of replacing, through recon-
or included in the original grant award; struction or substitution, a treatment works
(iii) A written direction by the Regional that was assisted under the Federal Water
Administrator to delay building part of the Pollution Control Act of 1956 (Pub. L. 84–660),
treatment works; or or its amendments, and that fails to meet its
(iv) A major change in the treatment project performance standards. This provi-
works’ design criteria that the grantee can- sion applies to failures that occur either be-
not control; or fore or after the initiation of operation. This
(b) Meet all the following conditions: provision does not apply to an innovative
(i) If the original grant award was made and alternative treatment works eligible for
after December 28, 1981, the treatment works funding under § 35.2032(c) or a treatment
has not completed its first full year of oper- works that fails at the end of its design life
ation; or to a failed rotating biological contactor
(ii) The additions are not caused by the eligible for funding under § 35.2035.
grantee’s mismanagement or the improper f. Personal injury compensation or dam-
actions of others; ages arising out of the project.
556
Environmental Protection Agency Pt. 35, Subpt. I, App. B
g. Fines and penalties due to violations of, APPENDIX B TO SUBPART I—ALLOWANCE
or failure to comply with, Federal, State or FOR FACILITIES PLANNING AND DESIGN
local laws, regulations or procedures.
h. Costs outside the scope of the approved 1. This appendix provides the method EPA
project. will use to determine both the estimated and
i. Costs for which grant payment has been the final allowance under § 35.2025 for facili-
or will be received from another Federal ties planning and design. The Step 2=3, Step
agency. 3 and Step 7 grant agreements will include
j. Costs of treatment works for control of an estimate of the allowance.
pollutant discharges from a separate storm 2. The Federal share of the allowance is de-
sewer system. termined by applying the applicable grant
k. The cost of treatment works that would percentage in § 35.2152 to the allowance.
provide capacity for new habitation or other
3. The allowance is not intended to reim-
establishments to be located on environ-
burse the grantee for costs actually incurred
mentally sensitive land such as wetlands or
for facilities planning or design. Rather, the
floodplains.
allowance is intended to assist in defraying
l. The costs of preparing a corrective ac-
tion report required by § 35.2218(c). those costs. Under this procedure, questions
of equity (i.e., reimbursement on a dollar-
I. Design/Build Project Grants for-dollar basis) will not be appropriate.
4. The estimated and final allowance will
1. Allowable costs include:
be determined in accordance with this ap-
a. The costs of supplementing the facilities
pendix and tables 1, 2 and 3. Table 2 is to be
plan to prepare the pre-bid package includ-
used in the event the grantee received a
ing the cost of preliminary boring and site
grant for facilities planning. Table 3 is to be
plans, concept and layout drawings, sche-
used to determine the facilities planning al-
matic, general material and major equip-
lowance for a Step 7 grant if the grantee did
ment lists and specifications, instructions to
not receive a Step 1 grant. The amount of
builders, general and special conditions,
the allowance is computed by applying the
project performance standards and permit
resulting allowance percentage to the initial
limits, applicable State or other design
allowable building cost.
standards, any requirements to go into bid
analyses, and other contract documents, 5. The initial allowable building cost is the
schedules, forms and certificates. initial allowable cost of erecting, altering,
b. The costs for building the project, in- remodeling, improving, or extending a treat-
cluding: ment works, whether accomplished through
(1) Project costs based on the lowest re- subagreement or force account. Specifically,
sponsive, responsible competitive design/ the initial allowable building cost is the al-
build project bid. lowable cost of the following:
(2) Construction management services in- a. The initial award amount of all prime
cluding detailed plans and specifications re- subagreements for building the project.
view and approval, change order review and b. The initial amounts approved for force
approval, resident inspection, shop drawing account work performed in lieu of awarding
approval and preparation of an O & M man- a subagreement for building the project.
ual and of user charge and sewer use ordi- c. The purchase price of eligible real prop-
nance systems. erty.
(3) Any adjustments to reflect the actual 6. The estimated allowance is to be based
reasonable and necessary costs for preparing on the estimate of the initial allowable
the pre-bid package. building cost.
(4) Post-construction activities required by 7. The final allowance will be determined
project performance certification require- one time only for each project, based on the
ments. initial allowable building cost, and will not
(5) Contract and project administration ac- be adjusted for subsequent cost increases or
tivities including the review of contractor decreases.
vouchers and payment requests, preparation 8. For a Step 3 or Step 7 project, the grant-
of monitoring reports, grant administration ee may request payment of 50 percent of the
and accounting services, routine legal costs, Federal share of the estimated allowance im-
cost of eligible real property. mediately after grant award. Final payment
(6) Contingencies. of the Federal share of the allowance may be
2. Unallowable costs include: requested in the first payment after the
a. All costs in excess of the maximum grantee has awarded all prime sub-
agreed Federal share. agreements for building the project, received
b. Costs of facilities planning where the the Regional Administrator’s approval for
grantee has received a Step 1 grant. force account work, and completed the ac-
[49 FR 6234, Feb. 17, 1984, as amended at 50 quisition of all eligible real property.
FR 45896, Nov. 4, 1985; 55 FR 27098, June 29, 9. For a Step 2=3 project, if the grantee has
1990] not received a grant for facilities planning,
557
Pt. 35, Subpt. I, App. B 40 CFR Ch. I (7–1–00 Edition)
the grantee may request payment of 30 per- TABLE 1—ALLOWANCE FOR FACILITIES PLANNING
cent of the Federal share of the estimated al- AND DESIGN—Continued
lowance immediately after the grant award.
Half of the remaining estimated allowance Allowance as a
may be requested when design of the project Building cost percentage of
building cost*
is 50 percent complete. If the grantee has re-
ceived a grant for facilities planning, the 15,000,000 ............................................... 6.9851
grantee may request half of the Federal 17,500,000 ............................................... 6.8300
share of the estimated allowance when de- 20,000,000 ............................................... 6.6984
sign of the project is 50 percent complete. 25,000,000 ............................................... 6.4841
30,000,000 ............................................... 6.3142
Final payment of the Federal share of the al-
35,000,000 ............................................... 6.1739
lowance may be requested in the first pay- 40,000,000 ............................................... 6.0550
ment after the grantee has awarded all prime 50,000,000 ............................................... 5.8613
subagreements for building the project, re- 60,000,000 ............................................... 5.7077
ceived the Regional Administrator’s ap- 70,000,000 ............................................... 5.5809
proval for force account work, and completed 80,000,000 ............................................... 5.4734
the acquisition of all eligible real property. 90,000,000 ............................................... 5.3803
100,000,000 ............................................. 5.2983
10. The allowance does not include archi-
120,000,000 ............................................. 5.1594
tect or engineering services provided during 150,000,000 ............................................. 4.9944
the building of the project, e.g., reviewing 175,000,000 ............................................. 4.8835
bids, checking shop drawings, reviewing 200,000,000 ............................................. 4.7894
change orders, making periodic visits to job
NOTE: The allowance does not reimburse for costs incurred.
sites, etc. Architect or engineering services Accordingly, the allowance tables shall not be used to deter-
during the building of the project are allow- mine the compensation for facilities planning or design serv-
able costs subject to this regulation and 40 ices. The compensation for facilities planning or design serv-
ices should be based upon the nature, scope and complexity
CFR part 33. of the services required by the community.
11. The State will determine the amount *Interpolate between values.
and conditions of any advance under
§ 35.2025(b), not to exceed the Federal share of TABLE 2—ALLOWANCE FOR DESIGN ONLY
the estimated allowance.
12. EPA will reduce the Federal share of Allowance as a
Building cost percentage of
the allowance by the amount of any ad- building cost*
vances the grantee received under § 35.2025(b).
$100,000 or less ...................................... 8.5683
TABLE 1—ALLOWANCE FOR FACILITIES PLANNING 120,000 .................................................... 8.3808
150,000 .................................................... 8.1570
AND DESIGN
175,000 .................................................... 8.0059
200,000 .................................................... 7.8772
Allowance as a
Building cost percentage of 250,000 .................................................... 7.6668
building cost* 300,000 .................................................... 7.4991
350,000 .................................................... 7.3602
$100,000 or less ...................................... 14.4945 400,000 .................................................... 7.2419
120,000 .................................................... 14.1146 500,000 .................................................... 7.0485
150,000 .................................................... 13.6631 600,000 .................................................... 6.8943
175,000 .................................................... 13.3597 700,000 .................................................... 6.7666
200,000 .................................................... 13.1023 800,000 .................................................... 6.6578
250,000 .................................................... 12.6832 900,000 .................................................... 6.5634
300,000 .................................................... 12.3507 1,000,000 ................................................. 6.4300
350,000 .................................................... 12.0764 1,200,000 ................................................. 6.3383
400,000 .................................................... 11.8438 1,500,000 ................................................. 6.1690
500,000 .................................................... 11.4649 1,750,000 ................................................. 6.0547
600,000 .................................................... 11.1644 2,000,000 ................................................. 5.9574
700,000 .................................................... 10.9165 2,500,000 ................................................. 5.7983
800,000 .................................................... 10.7062 3,000,000 ................................................. 5.6714
900,000 .................................................... 10.5240 3,500,000 ................................................. 5.5664
1,000,000 ................................................. 10.3637 4,000,000 ................................................. 5.4769
1,200,000 ................................................. 10.0920 5,000,000 ................................................. 5.3306
1,500,000 ................................................. 9.7692 6,000,000 ................................................. 5.2140
1,750,000 ................................................. 9.5523 7,000,000 ................................................. 5.1174
2,000,000 ................................................. 9.3682 8,000,000 ................................................. 5.0352
2,500,000 ................................................. 9.0686 9,000,000 ................................................. 4.9637
3,000,000 ................................................. 8.8309 10,000,000 ............................................... 4.9007
3,500,000 ................................................. 8.6348 12,000,000 ............................................... 4.7935
4,000,000 ................................................. 8.4684 15,000,000 ............................................... 4.6655
5,000,000 ................................................. 8.1975 17,500,000 ............................................... 4.5790
6,000,000 ................................................. 7.9827 20,000,000 ............................................... 4.5054
7,000,000 ................................................. 7.8054 25,000,000 ............................................... 4.3851
8,000,000 ................................................. 7.6550 30,000,000 ............................................... 4.2892
9,000,000 ................................................. 7.5248 35,000,000 ............................................... 4.2097
10,000,000 ............................................... 7.4101 40,000,000 ............................................... 4.1421
12,000,000 ............................................... 7.2159 50,000,000 ............................................... 4.0314
558
TABLE 2—ALLOWANCE FOR DESIGN ONLY— SOURCE: 48 FR 37818, Aug. 19, 1983, unless
Continued otherwise noted.
Allowance as a § 35.3000 Purpose.

Building cost percentage of
building cost* (a) This regulation establishes poli-
60,000,000 ............................................... 3.9432
cies and procedures for the develop-
70,000,000 ............................................... 3.8702 ment, management, and EPA overview
80,000,000 ............................................... 3.8080 of State administration of the waste-
90,000,000 ............................................... 3.7540 water treatment works construction
100,000,000 ............................................. 3.7063
120,000,000 ............................................. 3.6252 grants program under section 205(g) of
150,000,000 ............................................. 3.5284 the Clean Water Act, as amended. The
175,000,000 ............................................. 3.4630 delegation agreement between EPA
200,000,000 ............................................. 3.4074
and the State is a precondition for con-
NOTE: The allowance does not reimburse for costs incurred. struction management assistance
Accordingly, the allowance tables shall not be used to deter-
mine the compensation for facilities planning or design serv- under section 205(g). Program require-
ices. The compensation for facilities planning or design serv- ments for other assistance agreements
ices should be based upon the nature, scope and complexity
of the services required by the community. authorized by section 205(g) for activi-
*Interpolate between values. ties under sections 402 and 404 and sec-
tion 208(b)(4) are provided in part 130.
TABLE 3—ALLOWANCE FOR FACILITIES PLANNING
Administration of all section 205(g) as-
FOR DESIGN/BUILD PROJECTS
sistance agreements follows the proce-
Allowance as a dures established in subpart A of this
Building cost (dollars) percentage of part.
building cost*
(b) A State, for purposes of receiving
100,000 or less ........................................ 5.9262 delegation of construction grant pro-
120,000 .................................................... 5.7337
150,000 .................................................... 5.5061
gram responsibilities under this sub-
175,000 .................................................... 5.3538 part, shall include a State, the District
200,000 .................................................... 5.2250 of Columbia, the Commonwealth of
250,000 .................................................... 5.0163 Puerto Rico, the Virgin Islands, Guam,
300,000 .................................................... 4.8516
350,000 .................................................... 4.7162 American Samoa, the Trust Territories
400,000 .................................................... 4.6019 of the Pacific Islands (Palau), the Com-
500,000 .................................................... 4.4164 monwealth of the Northern Marianas,
600,000 .................................................... 4.2701
700,000 .................................................... 4.1499
and any Indian Tribe, band, group, or
800,000 .................................................... 4.0483 community recognized by the Sec-
900,000 .................................................... 3.9606 retary of the Interior and exercising
1,000,000 ................................................. 3.8837 governmental authority over a Federal
1,200,000 ................................................. 3.7538
1,500,000 ................................................. 3.6003 Indian reservation, provided that the
1,750,000 ................................................. 3.4976 Tribe satisfies the following criteria:
2,000,000 ................................................. 3.4109 (1) The Indian Tribe has a governing
2,500,000 ................................................. 3.2703
3,000,000 ................................................. 3.1595
body carrying out substantial govern-
3,500,000 ................................................. 3.0684 mental duties and powers. The Tribe
4,000,000 ................................................. 2.9915 must submit a narrative statement to
5,000,000 ................................................. 2.8669 the Regional Administrator describing
6,000,000 ................................................. 2.7686
7,000,000 ................................................. 2.6880 the form of the Tribal government, de-
8,000,000 ................................................. 2.6198 scribing the types of essential govern-
NOTE: Building cost is the sum of the allowable cost of (1) mental functions currently performed
the initial award amount of the prime subagreement for build- and identifying the source of the au-
ing and designing the project; and (2) the purchase price of
eligible real property. thority to perform these functions.
*Interpolate between values. (2) The functions to be exercised by
the Indian Tribe pertain to the man-
[49 FR 6234, Feb. 17, 1984, as amended at 55 agement and protection of water re-
FR 27098, June 29, 1990]
sources which are held by an Indian
Tribe, held by the United States in
Subpart J—Construction Grants trust for Indians, held by a member of
Program Delegation to States an Indian Tribe if such property is sub-
ject to a trust restriction on alien-
AUTHORITY: Sections 205(g) and 518(e) of the ation, or otherwise within the borders
Clean Water Act, as amended, 33 U.S.C. 1251 of an Indian reservation. Assertions by
et. seq. the Indian Tribe with respect to this
559
§ 35.3005 40 CFR Ch. I (7–1–00 Edition)
criterion will be provided by EPA to management of public funds. Overview

adjacent governmental entities in ac- will also include review of the State
cordance with 40 CFR 130.15. management process to ensure it is ef-
(3) The Indian Tribe is reasonably ex- ficient, effective and assures timely
pected to be capable, in the Regional State reviews.
Administrator’s judgment, of carrying
out the functions to be exercised in a § 35.3010 Delegation agreement.
manner consistent with the terms and (a) Before execution of the delegation
purposes of the Clean Water Act and agreement, the Regional Administrator
applicable regulations. must determine that the unit of the
(c) Where a Tribe has previously State agency designated to implement
qualified for treatment as a State the agreement is capable of carrying
under a Clean Water Act or Safe Drink- out the delegated functions. The Re-
ing Water Act program, the Tribe need gional Administrator will evaluate
only provide the required information
those aspects of the unit which directly
which had not been submitted in a pre-
affect the State’s capability to imple-
vious treatment as a State application.
ment the agreement.
[48 FR 37818, Aug. 19, 1983, as amended at 55 (b) In the delegation agreement, the
FR 27098, June 29, 1990] State agency will assure the Regional
Administrator that it will execute its
§ 35.3005 Policy.
responsibilities under the delegation
(a) EPA’s policy is to delegate man- agreement in conformance with all ap-
agement of the wastewater treatment plicable Federal laws, regulations, or-
works construction grant program to ders, and policies.
the maximum extent possible con- (c) The delegation agreement will:
sistent with the objectives of the Act, (1) Designate the organizational unit
prudent fiscal management, and EPA’s within the State responsible for the
overall national responsibility for the implementation of the delegation
program. The policy is premised on an agreement;
on-going partnership between EPA and
(2) List the functions delegated and
the States that includes consultation
functions to be delegated, with a sched-
with the States in formulation of pol-
ule for their assumption by the State;
icy and guidance by EPA. EPA expects
States to undertake full delegation of (3) Identify procedures to be followed
all project level activities, including and records to be kept by the State and
preliminary determinations of non-del- EPA in carrying out each delegated
egable requirements. The objective of function;
delegation is to eliminate duplication (4) Identify the staffing, hiring, train-
of Federal and State effort in the man- ing, and funding necessary to carry out
agement of the construction grant pro- the delegated functions;
gram, to increase State participation (5) Estimate program costs by year
in the construction grant program, and for the term of the delegation agree-
to improve operating efficiency. ment;
(b) Program delegation is to be ac- (6) Identify an accounting system, ac-
complished through a formal delega- ceptable to the Regional Adminis-
tion agreement between the Regional trator, which will properly identify and
Administrator and the State. The dele- relate State costs to the conduct of
gation agreement will specify the func- delegated functions; and
tions which the State will perform and (7) Identify the form and content of
procedures for State certification to the system for EPA overview of State
EPA. performance consistent with the re-
(c) EPA will overview the perform- quirements in § 35.3025 of this subpart,
ance of the program under delegation including the frequency, method, and
to ensure that progress is being made extent of monitoring, evaluation, and
toward meeting the construction grant reporting.
program objectives and that the State (d) The term of the delegation agree-
is continuing to employ administra- ment shall generally be five years. As
tive, fiscal, and program controls to subsequent construction management
guard against fraud, misuse, and mis- assistance is awarded, the delegation
560
agreement may be amended to main- icy Act of 1969, 42 U.S.C. 4321 et seq.,
tain a five-year period. Title VI of the Civil Rights Act of 1964,
(e) The delegation agreement will be 42 U.S.C. 2000d et seq.), except for sec-
revised, as necessary, to reflect sub- tions 201, 203, 204, and 212 of the Clean
stantial program or procedural Water Act;
changes, as determined by the Regional (4) Final resolution of construction
Administrator. grant audit exceptions; and
(Approved by the Office of Management and (5) Procurement determinations list-
Budget under control number 2000–0417) ed under 40 CFR 33.001(g).
§ 35.3015 Extent of State responsibil- § 35.3020 Certification procedures.

ities. (a) The State will furnish a written
(a) Except as provided in paragraph certification to the Regional Adminis-
(c) of this section, the Regional Admin- trator for each construction grant
istrator may delegate to the State project application submitted to EPA
agency authority to review and certify for award. The certification must state
all construction grant documents re- that all Federal requirements, within
quired before and after grant award the scope of authority delegated to the
and to perform all construction grant State under the delegation agreement,
review and management activities nec- have been met. This certification must
essary to administer the construction be supported by documentation speci-
grants program. fied in the delegation agreement. The
(b) The State may also act as the documentation must be made available
manager of waste treatment construc- to the Regional Administrator upon re-
tion grant projects for small commu- quest.
nities. The State, with the approval of (b) Certification that a construction
the community, may serve as the com- grant project application complies
munity contracting agent and under- with all delegable pre-award require-
take responsibilities such as negoti- ments consists of certification of com-
ating subagreements, providing tech- pliance with the following sections of
nical assistance, and assisting the com- subpart I of this part: § 35.2030 (Facili-
munity in exercising its resident engi- ties planning); § 35.2040 (a) and (b)
neering responsibility. In this capacity, (Grant application); § 35.2042 (Review of
the State is in the same position as a grant applications); and §§ 35.2100 (Lim-
private entity and cannot require a itations on award) through and includ-
small community to hold the State ing 35.2125, except for § 35.2101 (Ad-
harmless from negligent acts or omis- vanced treatment reviews for projects
sions. The State may also execute an with incremental capital advanced
agreement with any organization with- treatment costs of over $3 million),
in the State government, other than § 35.2112 (Marine waiver discharge appli-
the State agency, which is capable of cants), and § 35.2113 (final decisions
performing these services. The terms of under the National Environmental Pol-
the agreement to provide these services icy Act).
to small communities must be ap-
proved by the Regional Administrator § 35.3025 Overview of State perform-
before execution of the agreement. ance under delegation.
(c) The Regional Administrator shall The Regional Administrator will re-
retain overall responsibility for the view the performance of a delegated
construction grant program and exer- State through an annual overview pro-
cise direct authority for the following: gram, developed in accordance with
(1) Construction grant assistance procedures agreed to in the delegation
awards, grant amendments, payments, agreement (§ 35.3010(c)(7)). The purpose
and terminations; of the overview program is to ensure
(2) Projects where an overriding Fed- that both the delegated State and EPA
eral interest requires greater Federal efficiently and effectively execute the
involvement; fiscal and program responsiblilities
(3) Final determinations under Fed- under the Clean Water Act and related
eral statutes and Executive Orders legislation. The overview program is
(e.g., the National Environmental Pol- comprised of three steps:
561
§ 35.3030 40 CFR Ch. I (7–1–00 Edition)
(a) Developing a plan for overview. The negotiated annual outputs, perform-
plan for overview specifies priority ob- ance expected in the delegation agree-
jectives, key measures of performance, ment and, where applicable, evaluation
and monitoring and evaluation activi- of performance under the assistance
ties (including State reporting to EPA) agreement as provided in 40 CFR 35.150.
for the upcoming year. EPA and the The evaluation will cover performance
State should agree to a plan for over- of both the Region and the State. Upon
view in advance of the upcoming year. completion of the evaluation, the dele-
(1) Priority objectives will include gation agreement may be revised, if
both program and management objec- necessary, to reflect changes resulting
tives. In developing the State priority from the evaluation. The Regional Ad-
objectives, the national priorities iden- ministrator may terminate or annul
tified by the Administrator on an an- any section 205(g) financial assistance
nual basis must, at a minimum, be ad- for cause in accordance with the proce-
dressed and applied as appropriate to dures in subpart A, § 35.150, and part 30.
each State. In addition, the Regional (Approved by the Office of Management and
Administrator and the State may iden- Budget under control number 2000–0417)
tify other objectives unique to the situ-
ation in the State. § 35.3030 Right of review of State deci-
(2) For each priority objective, the sion.
plan for overview will specify key (a) Any construction grant applica-
measures of performance (both quan- tion or grantee who has been adversely
titative and qualitative), identify affected by a State’s action or omission
which measures will require the nego- may request Regional review of such
tiation of outputs, and enumerate the action or omission, but must first sub-
specific monitoring and evaluation ac- mit a petition for review to the State
tivities and methods planned for the agency that made the initial decision.
upcoming year. The State agency will make a final de-
(b) Negotiating annual outputs. Annu- cision in accordance with procedures
ally, the Region and delegated State set forth in the delegation agreement.
will negotiate and agree upon outputs, The State must provide, in writing,
where required by the plan for over- normally within 45 days of the date it
view, to cover priority objectives for receives the petition, the basis for its
the upcoming year. This negotiation decision regarding the disputed action
should also result in development of or omission. The final State decision
the work program required for the sec- must be labeled as such and, if adverse
tion 205(g) assistance application, pur- to the applicant or grantee, must in-
suant to subpart A, § 35.130 of this part. clude notice of the right to request Re-
Where the assistance application cov- gional review of the State decision
ers a budget period beyond the annual under this section. A State’s failure to
overview program period, the assist- address the disputed action or omission
ance award may be made for the full in a timely fashion, or in writing, will
budget period, contingent on future ne- not preclude Regional review.
gotiation of annual outputs under this (b) Requests for Regional review
paragraph for subsequent years of the must include:
budget period. (1) A copy of any written State deci-
(c) Monitoring and evaluating program sion.
performance. Monitoring and evaluation (2) A statement of the amount in dis-
of program performance (including pute,
State reporting) is based on the plan (3) A description of the issues in-
for overview agreed to in advance, and volved, and
should be appropriate to the delegation (4) A concise statement of the objec-
situation existing between the Region tions to the State decision.
and State. It should take into account The request must be filed by registered
past performance of the State and the mail, return receipt requested, within
extent of State experience in admin- thirty days of the date of the State de-
istering the delegated functions. An cision or within a reasonable time if
on-site evaluation will occur at least the State fails to respond in writing to
annually and will cover, at a minimum, the request for review.
562
(c) The Region shall determine SOURCE: 55 FR 10178, Mar. 19, 1990, unless
whether the State’s review is com- otherwise noted.
parable to a dispute decision official’s
(DDO) review pursuant to 40 CFR part § 35.3100 Policy and purpose.
30, subpart L. If the State’s review is (a) The Agency intends to implement
comparable, Regional review of the the State water pollution control re-
State’s decision will be conducted by volving fund program in a manner that
the Regional Administrator. If the preserves for States a high degree of
State’s review is not comparable, the flexibility for operating their revolving
DDO will review the State’s decision funds in accordance with each State’s
and issue a written decision. Review of unique needs and circumstances. The
either a Regional Administrator or purpose of these regulations is to ad-
DDO decision may be requested pursu- vance the general intent of title VI of
ant to subpart L. the Clean Water Act, which is to en-
(Approved by the Office of Management and sure that each State’s program is de-
Budget under control number 2040–0095) signed and operated to continue pro-
viding assistance for water pollution
[50 FR 45896, Nov. 4, 1985]
control activities in perpetuity.
§ 35.3035 Public participation. (b) These regulations reflect statu-
tory and program requirements that
(a) Public participation during the
have been previously published in the
development, review, approval, and
substantial revision of the delegation Initial Guidance for State Revolving
agreement will be in accordance with Funds, which was signed by the Assist-
the requirements of section 101(e) of ant Administrator for Water on Janu-
the Act, part 25 of this chapter, and ary 28, 1988, and the supplementary
this subpart. memorandum to the Initial Guidance
(b) The Regional Administrator or for State Revolving Funds, which was
the State, as mutually agreed, will signed by the Assistant Administrator
make the draft delegation agreement, for Water on September 30, 1988. Copies
any proposed substantial amendment of both documents can be obtained by
to the delegation agreement, and the writing the Office of Municipal Pollu-
proposed annual overview program, tion Control (WH–546), Environmental
available to the public for comment, Protection Agency, 401 M Street SW.,
and provide notice of availability, suf- Washington, DC 20460.
ficiently in advance of execution to (c) These regulations supplement
allow for timely comment. title VI by codifying all major program
(c) If, based on comments received, requirements, applicable to the SRF
the Regional Administrator or State program. EPA will not impose addi-
determines that significant interest ex- tional major program requirements
ists, the State and EPA will consult without an opportunity for affected
with interested and affected groups and parties to comment. The process for
citizens prior to execution of the dele- amending this regulation to incor-
gation agreement, substantial amend- porate these requirements will begin
ment, or annual overview program. If within three months of their issuance.
the Regional Administrator or State
determines that significant interest § 35.3105 Definitions.
and desire for a public meeting exist, Words and terms that are not defined
the Region or State will hold one or below and that are used in this rule
more public meetings at least 30 days shall have the same meaning they are
prior to execution. given in 40 CFR part 31 and 40 CFR part
35, subpart I.
Subpart K—State Water Pollution (a) Act. The Federal Water Pollution
Control Revolving Funds Control Act, more commonly known as
the Clean Water Act (Pub. L. 92–500), as
AUTHORITY: Sections 205(m), 501(a) and
amended by the Water Quality Act of
title VI of the Clean Water Act, as amended, 1987 (Pub. L. 100–4). 33 U.S.C. 1251 et seq.
33 U.S.C. 1285(m), 33 U.S.C. 1361(a), 33 U.S.C. (b) Binding Commitment. A legal obli-
1381–1387. gation by the State to a local recipient
563
§ 35.3110 40 CFR Ch. I (7–1–00 Edition)
that defines the terms for assistance with documentation of the establish-
under the SRF. ment of an SRF and designation of the
(c) Capitalization Grant. The assist- State instrumentality that will admin-
ance agreement by which the EPA obli- ister the SRF in accordance with the
gates and awards funds allotted to a Act.
State for purposes of capitalizing that (2) With each capitalization grant ap-
State’s revolving fund. plication, the State’s Attorney General
(d) Cash draw. The transfer of cash (AG), or someone designated by the
under a letter of credit (LOC) from the AG, must sign or concur in a certifi-
Federal Treasury into the State’s SRF. cation that the State legislation estab-
(e) Disbursement. The transfer of cash lishing the SRF and the powers it con-
from an SRF to an assistance recipi- fers are consistent with State law, and
ent. that the State may legally bind itself
(f) Equivalency projects. Those section to the terms of the capitalization grant
212 wastewater treatment projects con- agreement.
structed in whole or in part before Oc- (3) Where waiting for the AG’s signa-
tober 1, 1994, with funds ‘‘directly made ture or concurrence would by itself sig-
available by’’ the capitalization grant. nificantly delay awarding the first
These projects must comply with the grant (i.e., there are no other issues
requirements of section 602(b)(6) of the holding up the award), the head or
Act. chief legal officer of the State agency
(g) Funds ‘‘directly made available by’’ which has direct responsibility for ad-
capitalization grants. Funds equaling ministering the SRF program may sign
the amount of the grant. the certification at the time of the cap-
(h) Payment. An action by the EPA to italization grant award, provided the
increase the amount of capitalization capitalization grant agreement con-
grant funds available for cash draw tains a special condition requiring the
from an LOC. State to submit the AG/designee’s con-
(i) SRF. State water pollution control currence to EPA within a reasonable
revolving fund. time, not to exceed 120 days, after the
grant is awarded.
§ 35.3110 Fund establishment. (e) Allotment. (1) Appropriations for
(a) Generally. Before the Regional Ad- fiscal years 1987 through 1990 under
ministrator (RA) may award a capital- both title II and title VI programs will
ization grant, the State must establish be allotted in accordance with the for-
an SRF that complies with section 603 mula contained in section 205(c)(3) of
of the Act and this rule. the Act.
(b) SRF accounts. The SRF can be es- (2) Title VI funds are available for
tablished within a multiple-purpose the Agency to obligate to the State
State financing program. However, the during the fiscal year in which they are
SRF must be a separate account or se- allotted and during the following fiscal
ries of accounts that is dedicated solely year. The amount of any title VI allot-
to providing loans and other forms of ment not obligated to the State at the
financial assistance, but not grants. end of this period of availability will be
(c) SRF administration. The SRF must reallotted for title VI purposes in ac-
be administered by an instrumentality cordance with 40 CFR 35.2010.
of the State that is empowered to man- (3) A State that does not receive
age the Fund in accordance with the grants that obligate all the funds allot-
requirements of the Act. Where more ted to it under title VI in the first year
than one agency of the State is in- of its availability will not receive real-
volved in administering the activities lotted funds from that appropriation.
of the State’s program, the functions (4) Notwithstanding 40 CFR 35.910 and
and the relationships of those agencies 40 CFR 35.2010(a), deobligations and re-
must be established to the satisfaction allotments of title II funds may be
of the RA. transferred to a title VI capitalization
(d) Documentation of the establishment grant regardless of either the year in
of an SRF program. (1) As part of its ini- which the title II funds were originally
tial application for the capitalization allotted or the year in which they are
grant, the State must furnish the RA deobligated or reallotted.
564
(f) Transfer of title II allotments. A these reserves may be transferred into

State may exercise the option to trans- an SRF.
fer a portion of its title II allotment (4) The State must reserve from each
for deposit, through a capitalization fiscal year’s title VI allotment the
grant, into an established water pollu- greater of one percent of its allotment
tion control revolving fund, under sec- or $100,000 to carry out planning under
tion 205(m) of the Act. sections 205(j) and 303(e) of the Act.
(1) If the State elects this option, the
Governor of the State must submit a Budget under control number 2040–0118)
Notice of Intent to the RA specifying
the amount of the title II allotment § 35.3115 Eligible activities of the SRF.
the State intends to use for title VI
purposes during the fiscal year for Funds in the SRF shall not be used to
which it is submitted. The Notice may provide grants. SRF balances must be
also identify anticipated, unobligated available in perpetuity and must be
title II funds from the prior fiscal year, used solely to provide loans and other
and request transfer of those funds as authorized forms of financial assist-
well. ance:
(2) Each Notice of Intent must be (a) To municipalities, inter-munic-
submitted on or before July 3 of the ipal, interstate, or State agencies for
year preceding the Federal fiscal year the construction of publicly owned
in which those funds are available. If a wastewater treatment works as these
State fails to file a Notice of Intent on are defined in section 212 of the Act
or before the prescribed date, then the and that appear on the State’s priority
State may not transfer title II allot- list developed pursuant to section 216
ments into an SRF in the upcoming fis- of the Act; and
cal year. A timely Notice of Intent (b) For implementation of a nonpoint
may be later withdrawn or amended. source pollution control management
(3) When the capitalization grant is program under section 319 of the Act;
awarded, funds requested under section and
205(m) of the Act will be obligated (c) For development and implementa-
under title VI for the activities of the tion of an estuary conservation and
SRF. If a Notice of Intent anticipates management plan under section 320 of
transfer of funds under the authority of the Act.
section 205(m), but those funds are not
§ 35.3120 Authorized types of assist-
so obligated by the end of the two year ance.
period of availability, they will be sub-
ject to reallotment as construction The SRF may provide seven general
grant funds. types of financial assistance.
(g) Reserves and transferred allotments. (a) Loans. The SRF may award loans
(1) Funds reserved under section 205(g) at or below market interest rates, or
of the Act can be used to develop SRF for zero interest.
programs. However, before any of these (1) Loans may be awarded only if:
funds may be used for purposes of the (i) All principal and interest pay-
SRF, the State must establish to the ments on loans are credited directly to
satisfaction of the RA that adequate the SRF;
funds, up to the section 205(g) max- (ii) The annual repayment of prin-
imum, will be available from any cipal and payment of interest begins
source to administer the construction not later than one year after project
grants program. completion;
(2) Funds reserved under sections (iii) The loan is fully amortized not
205(j)(1) and 205(j)(5) of the Act must be later than twenty years after project
calculated based on the State’s full completion; and
title II allotment, and cannot be trans- (iv) Each loan recipient establishes
ferred to the SRF. one or more dedicated sources of rev-
(3) Funds reserved under sections enue for repayment of the loan.
201(l)(2), 205(h), and 205(i) of the Act (2) Where construction of a treat-
must also be calculated based upon the ment works has been phased or seg-
State’s full title II allotment. However, mented, loan repayment requirements
565
§ 35.3125 40 CFR Ch. I (7–1–00 Edition)
apply to the completion of individual SRF, provided that the amount does
phases or segments. not exceed 4 percent of all grant
(b) Refinancing existing debt obliga- awards received by the SRF. Expenses
tions. The SRF may buy or refinance of the SRF in excess of the amount per-
local debt obligations at or below mar- mitted under this section must be paid
ket rates, where the initial debt was for from sources outside the SRF.
incurred after March 7, 1985, and build- (2) Allowable administrative costs in-
ing began after that date. clude all reasonable costs incurred for
(1) Projects otherwise eligible for re- management of the SRF program and
financing under this section on which for management of projects receiving
building began: financial assistance from the SRF.
(i) Before January 28, 1988 (the effec- Reasonable costs unique to the SRF,
tive date of the Initial Guidance for
such as costs of servicing loans and
State Revolving Funds) must meet the
issuing debt, SRF program start-up
requirements of title VI to be fully eli-
costs, financial management, and legal
gible.
consulting fees, and reimbursement
(ii) After January 28, 1988, but before
the effective date of this rule, must costs for support services from other
meet the requirements of title VI and State agencies are also allowable.
of the Initial Guidance for State Re- (3) Unallowable administrative costs
volving Funds to be fully eligible. include the costs of administering the
(iii) After March 19, 1990 must meet construction grant program under sec-
the requirements of this rule to be tion 205(g), permit programs under sec-
fully eligible. tions 402 and 404 and Statewide waste-
(2) Where the original debt for a water management planning programs
project was in the form of a multi-pur- under section 208(b)(4).
pose bond incurred for purposes in ad- (4) Expenses incurred issuing bonds
dition to wastewater treatment facility guaranteed by the SRF, including the
construction, an SRF may provide refi- costs of insuring the issue, may be ab-
nancing only for eligible purposes, and sorbed by the proceeds of the bonds,
not for the entire debt. and need not be charged against the 4
(c) Guarantee or purchase insurance for percent administrative costs ceiling.
local debt obligations. The SRF may The net proceeds of those issues must
guarantee local debt obligations where be deposited in the Fund.
such action would improve credit mar-
ket access or reduce interest rates. The § 35.3125 Limitations on SRF assist-
SRF may also purchase or provide bond ance.
insurance to guarantee debt service (a) Prevention of double benefit. If the
payment.
SRF makes a loan in part to finance
(d) Guarantee SRF debt obligations.
the cost of facility planning and prepa-
The SRF may be used as security or as
ration of plans, specifications, and esti-
a source of revenue for the payment of
mates for the building of treatment
principal and interest on revenue or
works and the recipient subsequently
general obligation bonds issued by the
State provided that the net proceeds of receives a grant under section 201(g) for
the sale of such bonds are deposited in the building of treatment works and an
the SRF. allowance under section 201(1)(1), the
(e) Loan guarantees for ‘‘sub-State re- SRF shall ensure that the recipient
volving funds.’’ The SRF may provide will promptly repay the loan to the ex-
loan guarantees for similar revolving tent of the allowance.
funds established by municipal or (b) Assistance for the non-Federal
intermunicipal agencies, to finance ac- share. (1) The SRF shall not provide a
tivities eligible under title VI. loan for the non-Federal share of the
(f) Earn interest on fund accounts. The cost of a treatment works project for
SRF may earn interest on Fund ac- which the recipient is receiving assist-
counts. ance from the EPA under any other au-
(g) SRF administrative expenses. (1) thority.
Money in the SRF may be used for the (2) The SRF may provide authorized
reasonable costs of administering the financial assistance other than a loan
566
for the non-Federal share of a treat- and operational capabilities to admin-

ment works project receiving EPA as- ister the program.
sistance if the Governor or the Gov- (Approved by the Office of Management and
ernor’s designee determines that such Budget under control number 2040–0118)
assistance is necessary to allow the
project to proceed. § 35.3135 Specific capitalization grant
(3) The SRF may provide loans for agreement requirements.
subsequent phases, segments, or stages (a) Agreement to accept payments. The
of wastewater treatment works that State must agree to accept grant pay-
previously received grant assistance ments in accordance with the nego-
for earlier phases, segments, or stages tiated payment schedule.
of the same treatment works. (b) Provide a State match. The State
(4) A community that receives a title must agree to deposit into its SRF an
II construction grant after the commu- amount equaling at least 20 percent of
nity has begun building with its own fi- the amount of each grant payment.
nancing, may receive SRF assistance (1) The State match must be depos-
to refinance the pre-grant work, in ac- ited on or before the date on which the
cordance with the requirements for re- State receives each payment from the
financing set forth under § 35.3120(b) of grant award. The State may maintain
this part. its match in an LOC or other financial
(c) Publicly owned portions. The SRF arrangement similar to the Federal
may provide assistance for only the LOC, provided that the State’s propor-
publicly owned portion of the treat- tional share is converted to cash when
ment works. the Federal LOC is drawn upon.
(d) Private operation. Contractual ar- (2) Bonds issued by the State for the
rangements for the private operation of match may be retired from the interest
a publicly owned treatment works will earned by the SRF (including interest
not affect the eligibility of the treat- on SRF loans) if the net proceeds from
ment works for SRF financing. the State issued bonds are deposited in
(e) Water quality management plan- the fund. Loan principal must be repaid
ning. The SRF may provide assistance to the SRF and cannot be used to re-
only to projects that are consistent tire State issued bonds.
with any plans developed under sec- (3) The State must identify the
tions 205(j), 208, 303(e), 319 and 320 of the source of the matching amount in the
Act. capitalization grant application and
must establish to the RA’s satisfaction
§ 35.3130 The capitalization grant that the source is not Federal money,
agreement. unless specifically authorized to be
(a) Contents. The capitalization grant used for such purposes under the stat-
agreement must contain or incorporate ute making the funds available.
by reference the State’s application, (4) If the State provides a match in
Intended Use Plan, agreed upon pay- excess of the required amount, the ex-
ment schedule, State environmental cess balance may be banked toward
review process and certifications or subsequent match requirements.
demonstrations of other agreement re- (5) If the State has deposited State
quirements and, where used, the SRF monies in a dedicated revolving fund
Operating Agreement. after March 7, 1985 and prior to receiv-
(b) Operating agreement. At the option ing a capitalization grant, the State
of the State, the organizational and ad- may credit these monies toward the
ministrative framework and those pro- match requirement:
cedures of the SRF program that are (i) If the monies were deposited in an
not expected to change annually may SRF that subsequently received a cap-
be described in an Operating Agree- italization grant and, if the deposit was
ment (OA). The OA must be incor- expended, it was expended in accord-
porated by reference in the grant ance with title VI;
agreement. (ii) If the monies were deposited in a
(c) Application requirements. The State separate fund that has not received a
must certify in its application that it capitalization grant, they were ex-
has the legal, managerial, technical, pended in accordance with title VI and
567
§ 35.3135 40 CFR Ch. I (7–1–00 Edition)
an amount equal to all repayments of must certify that the POTWs identified
principal and payments of interest in § 35.3135(e)(1) are either:
from these loans will be deposited in (i) In compliance; or
the Federally capitalized fund; or (ii) On an enforceable schedule; or
(iii) If the monies were deposited in a (iii) Have an enforcement action
separate fund and used as a reserve filed; or
consistent with title VI, and an (iv) Have a funding commitment dur-
amount equal to the reserve is trans- ing or prior to the first year covered by
ferred to the Federally capitalized fund the Intended Use Plan.
as its function is satisfied. (4) Other funds in the SRF may be
(c) Binding commitments. The State used at any time for the construction
must make binding commitments in an of any treatment works on the State’s
amount equal to 120 percent of each priority list or for activities under sec-
quarterly grant payment within one tions 319 and 320 of the Act.
year after the receipt of each quarterly (f) Compliance with title II require-
grant payment. ments. (1) The State must agree that
(1) Binding commitments may be for equivalency projects will comply with
any of the types of assistance provided sections 201(b), 201(g)(1), 201(g)(2),
for in sections 40 CFR 35.3120(a), (b), 201(g)(3), 201(g)(5), 201(g)(6), 201(n)(1),
(c), (e) or (f) and for Fund administra- 201(o), 204(a)(1), 204(a)(2), 204(b)(1),
tion under 40 CFR 35.3120(g). 204(d)(2), 211, 218, 511(c)(1), and 513 of
(2) If the State commits more than the Act.
the required 120 percent, EPA will rec- (2) The State must comply only with
ognize the cumulative value of the the statutory requirements. The State
binding commitments, and the excess may develop its own procedures for im-
balance may be banked towards the plementing the statutory provisions.
binding commitment requirements of The RA will accept State procedures
subsequent quarters. provided that the procedures will ade-
(3) If the State does not make bind- quately assure compliance with the
ing commitments equaling 120 percent statutory requirements, considered in
of the quarterly grant payment within the context of the SRF program.
one year after it receives the payment, (3) Where the State funds equiva-
the RA may withhold future quarterly lency projects for more than the cap-
grant payments, and require adjust- italization grant amount, EPA will rec-
ments to the payment schedule before ognize the cumulative value of the eli-
releasing further payments. gible costs of the equivalency projects,
(d) Expeditious and timely expenditure. and the excess balance may be banked
The State must agree to expend all toward subsequent year equivalency re-
funds in the SRF in an expenditious quirements.
and timely manner. (4) Only those eligible costs actually
(e) First use of funds. (1) The State funded with loans or other authorized
must agree to first use funds in the assistance from the SRF may be cred-
SRF equaling the amount of the grant, ited toward satisfaction of the equiva-
all repayments of principal and pay- lency requirement, and only in the
ments of interest on the initial loans amount of that assistance.
from the grant, and the State match to (g) State laws and procedures. The
address any major and minor publicly State must agree to commit or expend
owned treatment works (POTW) that each quarterly capitalization grant
the Region and the State have prepayment in accordance with the
viously identified as part of the Na- State’s own laws and procedures re-
tional Municipal Policy list for the garding the commitment or expendi-
State. ture of revenues.
(2) These funds may be used to fund (h) State accounting and auditing pro-
the cost-effective reserve capacity of cedures. (1) The State must agree to es-
these projects. tablish fiscal controls and accounting
(3) In order for a State to use these procedures that are sufficient to assure
funds for other section 212 POTWs or proper accounting for payments re-
for nonpoint source (section 319) or es- ceived by the SRF, disbursements
tuary (section 320) activities, the State made by the SRF, and SRF balances at
568
the beginning and end of the account- (i) The mechanisms to implement
ing period. mitigation measures to ensure that a
(2) The State must also agree to use project is environmentally sound;
accounting, audit, and fiscal proce- (ii) The legal remedies available to
dures conforming to generally accepted the public to challenge environmental
government accounting standards as review determinations and enforce-
these are promulgated by the Govern- ment actions;
mental Accounting Standards Board. (iii) The State agency primarily re-
Generally accepted government audit- sponsible for conducting environ-
ing standards are usually defined as, mental reviews;
but not limited to, those contained in (iv) The extent to which environ-
the U.S. General Accounting Office mental review responsibilities will be
(GAO) publication ‘‘Government Audit- delegated to local recipients and will
ing Standards’’ (1988 revision). be subject to oversight by the primary
(i) Recipient accounting and auditing State agency.
procedures. The State must agree to re- (2) Interdisciplinary approach. The
quire recipients of SRF assistance to State must employ an interdisciplinary
maintain project accounts in accord- approach for identifying and miti-
ance with generally accepted govern- gating adverse environmental effects
ment accounting standards as these are including, but not limited to, those as-
promulgated by the Government Ac- sociated with other applicable Federal
counting Standards Board. These ac- environmental authorities.
counts must be maintained as separate
(3) Decision documentation. The State
accounts.
must fully document the information,
(j) Annual report. The State must
processes and premises that influence
agree to make an Annual Report to the
decisions to:
RA on the actual use of the funds, in
(i) Proceed with a project contained
accordance with section 606(d) of the
in a finding of no significant impact
Act.
(FNSI) following documentation in an
§ 35.3140 Environmental review re- environmental assessment (EA);
quirements. (ii) Proceed or not proceed with a
(a) Generally. The State must agree project contained in a record of deci-
to conduct reviews of the potential en- sion (ROD) following preparation of a
vironmental impacts of all section 212 full environmental impact statement
construction projects receiving assist- (EIS);
ance from the SRF, including nonpoint (iii) Reaffirm or modify a decision
source pollution control (section 319) contained in a previously issued cat-
and estuary protection (section 320) egorical exclusion (CE), EA/FNSI or
projects that are also section 212 EIS/ROD following a mandatory 5 year
projects. environmental reevaluation of a pro-
(b) NEPA-like State environmental re- posed project; and
view process. Equivalency projects must (iv) If a State elects to implement
undergo a State environmental review processes for either partitioning an en-
process (SERP) that conforms gen- vironmental review or CE from envi-
erally to the National Environmental ronmental review, the State must simi-
Policy Act (NEPA). The State may larly document these processes in its
elect to apply the procedures at 40 CFR proposed SERP.
part 6, subpart E and related subparts, (4) Public notice and participation. (i)
or apply its own ‘‘NEPA-like’’ SERP The State must provide public notice
for conducting environmental reviews, when a CE is issued or rescinded, a
provided that the following elements FNSI is issued but before it becomes ef-
are met. fective, a decision issued 5 years earlier
(1) Legal foundation. The State must is reaffirmed or revised, and prior to
have the legal authority to conduct en- initiating an EIS.
vironmental reviews of section 212 con- (ii) Except with respect to a public
struction projects receiving SRF as- notice of a categorical exclusion or re-
sistance. Such authority and sup- affirmation of a previous decision, a
porting documentation must specify: formal public comment period must be
569
§ 35.3145 40 CFR Ch. I (7–1–00 Edition)
provided during which no action on a mental review procedures must be ap-

project will be allowed. proved by the RA.
(iii) A public hearing or meeting
must be held for all projects except for § 35.3145 Application of other Federal
those having little or no environmental authorities.
effect. (a) Generally. The State must agree
(5) Alternatives Consideration. The to comply and to require all recipients
State must have evaluation criteria of funds ‘‘directly made available by’’
and processes which allow for: capitalization grants to comply with
(i) Comparative evaluation among al- applicable Federal authorities.
ternatives including the beneficial and (b) Informing EPA. The State must in-
adverse consequences on the existing form EPA when consultation or coordi-
environment, the future environment nation by EPA with other Federal
and individual sensitive environmental agencies is necessary to resolve issues
issues that are identified by project regarding compliance with those re-
management or through public partici- quirements.
pation; and (c) Civil Rights laws. All programs,
(ii) Devising appropriate near-term projects and activities of the State cap-
and long-range measures to avoid, min- italization grant recipient must be in
imize or mitigate adverse impacts. compliance with the Civil Rights Act
(c) Alternative State environmental re- of 1964, as amended, 42 U.S.C. 2000d et
view process. The State may elect to seq., section 504 of the Rehabilitation
apply an alternative SERP to non- Act of 1973, as amended, 29 U.S.C. 794
equivalency section 212 construction and section 13 of the Federal Water
projects assisted by the SRF, provided Pollution Control Act Amendments of
that such process: 1972, Public Law 92–500.
(1) Is supported by a legal foundation (d) MBE/WBE requirements. Require-
which establishes the State’s authority ments for the participation of minority
to review section 212 construction and women owned businesses (MBE/
projects; WBEs) will apply to assistance in an
(2) Responds to other environmental amount equaling the grant. To attain
objectives of the State; compliance with MBE/WBE require-
(3) Provides for comparative evalua- ments, the RA will negotiate an overall
tions among alternatives and account ‘‘fair share’’ objective with the State
for beneficial and adverse consequences for MBE/WBE participation on these
to the existing and future environ- SRF funded activities. A fair share ob-
ment; jective should be based on the amount
(4) Adequately documents the infor- of the capitalization grant award or
mation, processes and premises that in- other State established goals. The
fluence an environmental determina- State may accomplish its fair share ob-
tion; and jective by requiring certain equiva-
(5) Provides for notice to the public lency projects to undertake affirmative
of proposed projects and for the oppor- steps that will include the following:
tunity to comment on alternatives and (1) Including small, minority and
to examine environmental review docu- women’s businesses on solicitation
ments. For projects determined by the lists;
State to be controversial, a public (2) Assuring that small, minority and
hearing must be held. women’s businesses are solicited when-
(d) EPA approval process. The RA ever they are potential sources;
must review and approve any State (3) Dividing total requirements, when
‘‘NEPA-like’’ and alternative proce- economically feasible, into small tasks
dures to ensure that the requirements or quantities to permit maximum par-
for both have been met. The RA will ticipation by small, minority and wom-
conduct these reviews on the basis of en’s businesses;
the criteria for evaluating NEPA-like (4) Establishing delivery schedules,
reviews contained in appendix A to this when the requirements of the work per-
part. mit, which will encourage participa-
(e) Modifications to approved SERPs. tion by small, minority and women’s
Significant changes to State environ- businesses;
570
(5) Using the services of the Small to be provided, and SRF policies on set-
Business Administration and the Office ting the terms for the various types of
of Minority Business Enterprise of the assistance provided by the fund.
U.S. Department of Commerce, as ap- (4) Assurances and specific proposals.
propriate; and The IUP must provide assurances and
(6) If the contractor awards subagree- specific proposals on the manner by
ments, requiring the contractor to which the State intends to meet the re-
take the affirmative steps in para- quirements of the following sections of
graphs (d)(1) through (d)(5) of this sec- this part: §§ 35.3135(c); 35.3135(d);
tion. 35.3135(e); 35.3135(f); and 35.3140.
(e) MBE/WBE Reporting requirements. (5) Criteria and method for distribu-
The State must submit an MBE/WBE tion of funds.
Utilization Report (EPA Form SF 334) (i) The IUP must describe the criteria
within 30 days after the end of each and method established for the dis-
Federal fiscal quarter during which the tribution of the SRF funds and the dis-
State or its subrecipients award any tribution of the funds available to the
subagreements. SRF among the various types of assist-
ance the State will offer.
§ 35.3150 Intended Use Plan (IUP). (ii) The IUP must describe the cri-
(a) Purpose. The State must prepare a teria and method the State will use to
plan identifying the intended uses of select section 212 treatment work
the funds in the SRF and describing project priority list and projects or
how those uses support the goals of the programs to be funded as eligible ac-
SRF. This Intended Use Plan (IUP) tivities for nonpoint sources and estu-
must be prepared annually and must be ary protection management programs.
subjected to public comment and re- (c) Amending the IUP. The IUP
view before being submitted to EPA. project list may be changed during the
EPA must receive the IUP prior to the year under provisions established in
award of the capitalization grant. the IUP as long as the projects have
(b) Contents—(1) List of projects. (i) been previously identified through the
The IUP must contain a list of publicly public participation process.
owned treatment works projects on the (Approved by the Office of Management and
State’s project priority list developed Budget under control number 2040–0118)
pursuant to section 216 of the Act, to
be constructed with SRF assistance. § 35.3155 Payments.
This list must include: the name of the (a) Payment schedule. The State must
community; permit number or other include with each application for a cap-
applicable enforceable requirement, if italization grant a draft payment
available; the type of financial assist- schedule based on the State’s projec-
ance; and the projected amount of eli- tion of binding commitments in its
gible assistance. IUP. The payment schedule and the
(ii) The IUP must also contain a list specific criteria establishing the condi-
of the nonpoint source and national es- tions under which the State may draw
tuary protection activities under sec- cash from its LOC shall be jointly es-
tions 319 and 320 of the Act that the tablished by the Agency and the State
State expects to fund from its SRF. and included in the capitalization
(iii) The IUP must provide informa- grant agreement. Changes to the pay-
tion in a format and manner that is ment schedule, which may be nego-
consistent with the needs of the Re- tiated during the year, will be effected
gional Offices. through an amendment to the grant
(2) Short and long term goals. The agreement.
IUP must describe the long and short (b) Estimated disbursements. With the
term goals and objectives of the State’s first application for a capitalization
water pollution control revolving fund. grant, the State shall submit a sched-
(3) Information on the SRF activities ule that reflects, by quarters, the esti-
to be supported. The IUP must include mated disbursements from that grant
information on the types of activities for the year following the grant award
including eligible categories of costs to date. At the end of the third quarter of
receive assistance, types of assistance each Federal fiscal year thereafter, the
571
§ 35.3160 40 CFR Ch. I (7–1–00 Edition)
State must provide the Agency with a Federal funds in the capitalization
schedule of estimated disbursements grant to the sum of the capitalization
for the following Federal fiscal year. grant and the State funds. Alter-
The State must advise the Agency natively, the State may identify a
when significant changes from the group of activities approximately equal
schedule of estimated disbursements to 120 percent of the grant amount, and
are anticipated. This schedule must be draw cash from the LOC for 831⁄3 per-
developed in conformity with the pro- cent of the incurred costs of the identi-
cedures applicable to cash draws in fied activities.
§ 35.3160 and must be at a level of detail (ii) The Federal proportional share
sufficient to allow the Agency and the may exceed 831⁄3 percent where a State
State to jointly develop and maintain a is given credit for its match amount as
forecast of cash draws.
a result of funding activities in prior
(c) Timing of payments. Payments to
years (but after March 7, 1985), or for
the LOC from a particular grant will
banking excess match in the SRF in
begin in the quarter in which the grant
prior years and disbursing these
is awarded and will end no later than
the earlier of eight quarters after the amounts prior to drawing cash. If the
capitalization grant is awarded or entire amount of the State’s required
twelve quarters after advices of allow- match has been disbursed in advance,
ances are issued to the Regions. the Federal proportional share would
(d) General payment and cash draw be 100 percent.
rules. (1) Except as described in
§§ 35.3160(e) and 35.3160(g), payments § 35.3160 Cash draw rules.
will be based on the State’s schedule of (a) Loans. The State may draw cash
binding commitments. from the LOC when the SRF receives a
(2) The SRF or assistance recipient request from a loan recipient, based on
must first incur a cost, but not nec- incurred costs, including prebuilding
essarily disburse funds for that cost, on and building costs.
an activity for which the State has en- (b) Refinance or purchase of municipal
tered into a binding commitment, in debt. (1) Cash draw for completed con-
order to draw cash. struction. Except as indicated in para-
(3) Cash draws will be available only graph (b)(2) of this section, cash draws
up to the amount of payments made. shall be made at a rate no greater than
(4) For loans or for refinancing or equal amounts over the maximum
purchasing of municipal debt, plan- number of quarters that payments can
ning, design and associated pre-build- be made, pursuant to § 35.3155(c), and up
ing costs that are within the scope of a to the portion of the LOC committed to
project built after March 7, 1985, may the refinancing or purchase of the local
be included in the assistance agree- debt. Cash draws for incurred building
ment regardless of when they were in- costs will generally be treated as refi-
curred, provided these costs are in con- nanced costs.
formity with title VI of the Act. The
(2) The State may immediately draw
State may draw cash for these incurred
cash for up to five percent of each fis-
pre-building costs immediately upon
executing an assistance agreement. cal year’s capitalization grant or two
(5) A State may draw cash from the million dollars, whichever is greater,
LOC equal to the proportional Federal to refinance or purchase local debt.
share at which time the State will pro- (3) Projects or portions of projects
vide its proportional share. The Fed- not constructed. The State may draw
eral proportional share will be 831⁄3 per- cash based on incurred construction
cent of incurred costs and the State’s costs, as set forth in § 35.3160(a).
proportional share will be 162⁄3 percent (4) Incremental disbursement bonds.
of the incurred costs, except as de- For the purchase of incremental dis-
scribed below. bursement bonds from local govern-
(i) Where the State provides funds in ments, cash draws will be based on a
excess of the required 20 percent schedule that coincides with the rate
match, the proportional Federal share at which construction related costs are
drawn from the LOC will be the ratio of expected to be incurred for the project.
572
(c) Purchase of insurance. The State (iii) If accelerated cash draws are al-
may draw cash to purchase insurance lowed, the SRF will provide substan-
as premiums are due. tially more assistance; and
(d) Guarantees and security for bonds. (iv) The long term viability of the
(1) Cash draw in the event of default. In State program to meet water quality
the event of an imminent default in needs will be protected.
debt service payments on the guaran- (4) Cash draw limitation. When the
teed/secured debt, the State can draw LOC is used for securing State issued
cash immediately up to the total bonds, cash draws cannot be made at a
amount of the LOC committed to the rate greater than equal amounts over
guarantee/security. If a balance re- the maximum number of quarters that
mains in the guarantee portion of the payments can be made, pursuant to
§ 35.3155(c). Exceptions to this limita-
LOC reserve after the default is cov-
tion are in cases of default (see
ered, the State must negotiate a re-
§ 35.3160(d)(1)) and where cash draws are
vised schedule for the remaining
based on construction costs for all
amount of the guarantee/security. projects, as in § 35.3160(d)(2)(i).
(2) Cash draw in the absence of de- (e) Administrative expenses—(1) Pay-
fault. (i) The State can draw cash up to ments. One payment will be made at the
the amount of the LOC dedicated for time of the grant, based on the portion
the guarantee or security in accord- of the LOC estimated to be used for ad-
ance with a schedule based on the na- ministrative expenses.
tional title II annual outlay rate (Yr 1: (2) Cash draw. The State can draw
7%; Yr 2: 35%; Yr 3: 26%; Yr 4: 20%; Yr cash based on a schedule that coincides
5: 12%), or actual construction cost. In with the rate at which administrative
the latter case, the amount of the cash expenses will be incurred, up to that
draw would be the actual construction portion of the LOC dedicated to admin-
costs multiplied by the Federal share istrative expenses.
of the reserve multiplied by the ratio (f) Withholding payments. If a State
of the reserve to either the amount fails to take corrective action in ac-
guaranteed or the proceeds of the bond cordance with section 605 of the Act,
issue. the Agency shall withhold payments to
(ii) In addition, in the case of a secu- the SRF. Once a payment has been
rity the State can identify a group of made by the Agency, that payment and
projects whose value equals approxi- cash draws from that payment will not
mately the total of that portion of the be subject to withholding because of a
LOC and the State match dedicated as State’s failure to take corrective ac-
a security. The State can then draw tion.
cash based on the incurred construc- § 35.3165 Reports and audits.
tion costs of the selected projects only,
multiplied by the ratio of the Federal (a) Annual report. The State must
portion of the security to the entire se- provide an Annual Report to the RA
curity. beginning the first fiscal year after it
receives payments under title VI. The
(3) Aggressive leveraging exception.
State should submit this report to the
Where the cash draw rules discussed in
RA according to the schedule estab-
§ 35.3160(d) would significantly frustrate lished in the grant agreement.
a State’s program, the Agency may (b) Matters to establish in the annual
permit an exception to these cash draw report. In addition to the requirements
rules and provide for a more acceler- in section 606(d) of the Act, in its an-
ated cash draw, where the State can nual report the State must establish
demonstrate that: that it has:
(i) There are eligible projects ready (1) Reviewed all SRF funded section
to proceed in the immediate future 212 projects in accordance with the ap-
with enough costs to justify the proved environmental review proce-
amount of the secured bond issue; dures;
(ii) The absence of cash on an accel- (2) Deposited its match on or before
erated basis will substantially delay the date on which each quarterly grant
these projects; payment was made;
573
§ 35.3170 40 CFR Ch. I (7–1–00 Edition)
(3) Assured compliance with the re- or if the State’s review is otherwise un-
quirements of § 35.3135(f); satisfactory.
(4) Made binding commitments to (3) The audit report required under
provide assistance equal to 120 percent section 606(b) must contain an opinion
of the amount of each grant payment on the financial statements of the SRF
within one year after receiving the and its internal controls, and a report
grant payment pursuant to § 35.3135(c); on compliance with title VI.
(5) Expended all funds in an expedi- (4) The audit report must be com-
tious and timely manner pursuant to pleted within one year of the end of the
§ 35.3135(d); and appropriate accounting period and sub-
(6) First used all funds as a result of mitted to the Office of the Inspector
capitalization grants to assure mainte- General within 30 days of completion.
nance of progress toward compliance In cases of State conducted audits, the
with the enforceable requirements of State will be notified within 90 days as
the Act pursuant to § 35.3135(e). to the acceptability of the audit report
(c) Annual review—(1) Purpose. The and its findings. Audits may be done in
purpose of the annual review is to as- conjunction with the Single Audit Act.
sess the success of the State’s perform- (Approved by the Office of Management and
ance of activities identified in the IUP Budget under control number 2040–0118)
and Annual Report, and to determine
compliance with the terms of the cap- § 35.3170 Corrective action.
italization grant agreement. The RA (a) Causes. If the RA determines that
will complete the annual review ac- the State has not complied with re-
cording to the schedule established in quirements under title VI, the RA will
the grant agreement. notify the State of such noncompliance
(2) Records access. After reasonable and prescribe the necessary corrective
notice by the RA, the State or assist- action. Failure to satisfy the terms of
ance recipient must make available to the capitalization grant agreement, in-
the EPA such records as the RA rea- cluding unmet conditions or assurances
sonably requires to review and deter- or invalid certifications, is grounds for
mine State compliance with the re- a finding of noncompliance. In addi-
quirements of title VI. The RA may tion, if the State does not manage the
conduct onsite visits as needed to pro- SRF in a financially sound manner
vide adequate programmatic review. (e.g. allows consistent and substantial
(d) Annual audit. (1) At least once a failures of loan repayments), the RA
year the RA (through the Office of the may take corrective action as provided
Inspector General) will conduct, or re- under this section.
quire the State to have independently (b) RA’s course of action. In making a
conducted, a financial and compliance determination of noncompliance with
audit of the SRF and the operations of the capitalization grant agreement and
the SRF. If the State is required to devising the corrective action, the RA
have an independently conducted audit will identify the nature and cause of
performed, the State may designate an the problems. The State’s corrective
independent auditor of the State to action must remedy the specific in-
carry out the audit or may contrac- stance of noncompliance and adjust
tually procure the service. program management to avoid non-
(2) The auditor can be a certified pub- compliance in the future.
lic accountant, a public accountant li- (c) Consequences for failure to take cor-
censed on or before December 31, 1970, rective action. If within 60 days of re-
or a governmental auditor who meets ceipt of the noncompliance notice, a
the qualification standards (Govern- State fails to take the necessary ac-
ment Auditing Standards). In addition, tions to obtain the results required by
the auditor must meet the independ- the RA, or to provide an acceptable
ence standard as enumerated by the plan to achieve the results required,
General Accounting Office and Amer- the RA shall withhold payments to the
ican Institute of Certified Public Ac- SRF until the State has taken accept-
countants. The Office of the Inspector able actions. If the State fails to take
General may arrange for an EPA audit the necessary corrective action deemed
if the State fails to conduct the audit adequate by the RA within twelve
574
months of receipt of the original no- Subpart M—Grants for Technical

tice, any withheld payments shall be Assistance
deobligated and reallotted to other
States.
AUTHORITY: 42 U.S.C. 9617(e); sec. 9(g), E.O.
(d) Releasing payments. Once the 12580, 52 FR 2923, 3 CFR, 1987 Comp. P. 193.
State has taken the corrective action
deemed necessary and adequate by the SOURCE: 57 FR 45316, Oct. 1, 1992, unless
otherwise noted.
RA, the withheld payments will be re-
leased and scheduled payments will re- § 35.4000 Authority.
commence.
This subpart is issued under section
APPENDIX A TO SUBPART K—CRITERIA 117(e) of the Comprehensive Environ-
FOR EVALUATING A STATE’S PRO- mental Response, Compensation, and
POSED NEPA-LIKE PROCESS Liability Act of 1980 (CERCLA), as
amended, 42 U.S.C. 9617(e).
The following criteria will be used by the
RA to evaluate a proposed SERP. § 35.4005 Purpose and availability of
(A) Legal foundation. Adequate documenta- referenced material.
tion of the legal authority, including legisla-
tion, regulations or executive orders and/or (a) This subpart codifies policies and
Attorney General certification that author- procedures for Technical Assistance
ity exists. Grants (TAGs) awarded by EPA to
(B) Interdisciplinary approach. The avail- groups of individuals. This subpart es-
ability of expertise either in-house or other- tablishes the procedures for accepting
wise accessible to the State Agency. and evaluating applications, and for
(C) Decision documentation. A description of awarding and managing TAGs. These
a documentation process adequate to explain provisions supplement the EPA general
the basis for decisions to the public.
assistance regulations 40 CFR part 30
(D) Public notice and participation. A de-
scription of the process, including routes of
and 40 CFR part 33 and are applicable
publication (e.g., local newspapers and to all applicants/recipients of TAGs.
project mailing list), and use of established (b) Any reference to documents made
State legal notification systems for notices in this subpart necessary to apply for a
of intent, and criteria for determining TAG (i.e., OMB Circulars and EPA
whether a public hearing is required. The forms SF–424, 269, 270) are available
adequacy of a rationale where the comment through EPA Headquarters and Re-
period differs from that under NEPA and is gional Offices listed in 40 CFR 1.7.
inconsistent with other State review periods.
(E) Consider alternatives. The extent to § 35.4010 Definitions.
which the SERP will adequately consider:
(1) Designation of a study area comparable As used in this subpart, the following
to the final system; words and terms shall have the mean-
(2) A range of feasible alternatives, including set forth below:
ing the no action alternative; Affected means subject to an actual
(3) Direct and indirect impacts; or potential health, economic or envi-
(4) Present and future conditions; ronmental threat arising from a re-
(5) Land use and other social parameters lease or a threatened release at a facil-
including recreation and open-space consid- ity listed on the National Priorities
erations;
List (NPL) or proposed for listing
(6) Consistency with population projections
used to develop State implementation plans
under the National Oil and Hazardous
under the Clean Air Act; Substances Pollution Contingency
(7) Cumulative impacts including antici- Plan (NCP) where a response action
pated community growth (residential, com- under CERCLA has begun. Examples of
mercial, institutional and industrial) within affected parties include individuals
the project study area; and who live in areas adjacent to NPL fa-
(8) Other anticipated public works projects cilities whose health is or may be en-
including coordination with such projects. dangered by releases of hazardous sub-
stances at the facility, or whose eco-
Subpart L [Reserved] nomic interests are directly threatened
or harmed.
575
§ 35.4010 40 CFR Ch. I (7–1–00 Edition)
Applicant means any group of individ- specifies budget and project periods,
uals that files an application for a the Federal budget share of eligible
TAG. project costs, a description of the work
Application means a completed for- to be accomplished, and any terms and
mal written request for a TAG that is conditions.
submitted to a State or the EPA on In-kind contribution means the value
EPA form SF–424, Application for Fed- of a non-cash contribution used to
eral Assistance (Non-construction Pro- meet a recipient’s matching funds re-
grams). quirement in accordance with 40 CFR
Award means the TAG agreement 30.307(b). An in-kind contribution may
signed by both EPA and the recipient.
consist of charges for equipment or the
Award Official means the EPA official
value of goods and services necessary
delegated the authority to sign grant
agreements. to and directly benefiting the EPA-
Budget means the financial plan for funded project.
the spending of all Federal and match- Matching funds means the portion of
ing funds (including in-kind contribu- allowable project costs that a recipient
tions) for a TAG project as proposed by contributes toward completing the
the applicant, and negotiated with and TAG project using non-Federal funds
approved by the Award Official. or Federal funds if expressly authorized
Budget period means the length of by statute. The match may include in-
time specified in a grant agreement kind as well as cash contributions.
during which the recipient may spend Operable unit means a discrete action
or obligate Federal funds. The budget that comprises an incremental step to-
period may not exceed three (3) years. ward comprehensively addressing site
A TAG project period may be com- problems.
prised of several budget periods. Potentially Responsible Party (PRP)
Cash contribution means actual non- means any individual(s) or com-
Federal dollars, or Federal dollars if pany(ies) (such as owners, operators,
expressly authorized by statute to do transporters or generators) potentially
so, that a recipient spends for goods
responsible under sections 106 or 107 of
and services and real or personal prop-
CERCLA for the contamination prob-
erty used to satisfy the matching funds
requirement. lems at a Superfund site.
Contract means a written agreement Recipient means any group of individ-
between the recipient and another uals that has been awarded a TAG.
party (other than a public agency) for Recipient’s project manager means the
services or supplies necessary to com- person legally authorized to obligate
plete the TAG project. Contracts in- the organization to the terms and con-
clude contracts and subcontracts for ditions of EPA’s regulations and the
personal and professional services or grant agreement, and designated by
supplies necessary to complete the the recipient to serve as its principal
TAG project, and agreements with con- contact with EPA.
sultants, and purchase orders. Response action means all activities
Contractor means any party (e.g., undertaken to address the problems
Technical Advisor) to whom a recipient created by hazardous substances at a
awards a contract. National Priorities List site.
EPA means the Environmental Pro- Start of response action means the
tection Agency. Where a State admin- point in time when there is a guarantee
isters the TAG Program, the term or set-aside of funding either by EPA,
‘‘EPA’’ may mean a State agency.
other Federal agencies, States, or
Federal facility means a facility that
PRPs in order to begin response activi-
is owned or operated by a department,
agency, or instrumentality of the ties at a site.
United States. Waiver means excusing recipients
Grant agreement means the legal doc- from following certain anticipated reg-
ument that transfers money, or any- ulatory or administrative requirements
thing of value, to a recipient to accom- if; the authority to issue a waiver is
plish the purpose of the TAG project. It provided in the regulation itself; and
576
the Agency believes sufficient jus- (1) A State will pass through tech-
tification exists to approve such ac- nical assistance funds to a recipient
tion. The Award Official has the au- group by way of a subgrant, and reim-
thority to issue a waiver. Deviation burse the recipient group for its ex-
means an exemption from certain pro- penditures as provided at § 35.4080. A
visions of existing regulations, which State that elects this option is also re-
may be necessary in some unforeseen sponsible for monitoring the subgrant
instances. The Director, Grants Admin- to ensure that recipients comply with
istration Division, is authorized under its terms and with 40 CFR parts 30 and
40 CFR 30.1001(b) to approve deviations 33; or
from the requirements of regulations (2) If a recipient group agrees, a
(except for those that implement statu- State will use TAG funds to obtain the
tory or executive order requirements) services of a Technical Advisor and
when such situations warrant special provide those services to a grant recipi-
consideration. ent in lieu of cash. The recipient group
may work closely with the State in ad-
§ 35.4013 Cost principles. vertising, reviewing bids and recom-
(a) Recipients and non-profit contrac- mending a Technical Advisor, and man-
tors must comply with the cost prin- aging the Technical Advisor. The State
ciples in OMB Circular A–122. will make the final selection of the
(b) Profit-making contractors and technical advisor. A State that elects
subcontractors must comply with the this option becomes directly respon-
cost principles in the Federal Acquisi- sible for awarding the technical assist-
tion Regulation (48 CFR part 31). ance contracts, submitting financial
and progress reports, and for disbursing
§ 35.4015 State administration of the all TAG funds in compliance with ap-
program. plicable EPA regulations and require-
(a) Effective October 1, 1992, the ments.
Agency will accept applications for and
award TAGs in consultation with the § 35.4020 Responsibility requirements.
States. (a) An applicant must meet the min-
(b) The TAG Program will be avail- imum administrative and management
able at an NPL site where a State re- capability requirements 40 CFR 30.301.
sponse action is scheduled to begin or Thus each applicant must demonstrate
is underway and a CERCLA-funded co- that it has established reliable proce-
operative or other written agreement dures or has plans for establishing reli-
exists between the Agency and the able procedures for record–keeping and
State. financial accountability related to the
(c) States wishing to administer the management of the TAG. These proce-
TAG Program must inform the appro- dures must be in effect before the re-
priate EPA Regional administrator. If cipient incurs any costs. If EPA con-
a State elects to administer the pro- cludes that the applicant is not capable
gram, it must do so in conformity with of meeting the responsibility require-
this subpart. Where States administer ments, the application will be rejected.
the program, EPA will have an over- (b) Each recipient of a TAG must be
sight role. incorporated as a non-profit organiza-
(d) A State that chooses to admin- tion for the purpose of addressing the
ister the TAG Program will receive Superfund site for which the grant is
technical assistance funds plus admin- provided in order to receive a grant, ex-
istrative costs from the Agency under cept as provided in paragraph (c) of
a cooperative agreement. A State will this section. At the time of award, a re-
receive $10,000 for administrative costs cipient must either be incorporated or
for the first TAG. For each subsequent must demonstrate to EPA that the
TAG, the State will receive an amount group has filed the necessary docu-
equal to eight (8) percent of the TAG. ments for incorporation with the ap-
Using the criteria established under propriate State agency. No later than
this subpart, the State may select a the time of the first request for reim-
qualified recipient and provide assist- bursement for costs incurred, a recipi-
ance in either of two ways: ent must submit proof to EPA that the
577
§ 35.4025 40 CFR Ch. I (7–1–00 Edition)
group has been incorporated by the gency planning committees and citizen
State. advisory boards who may be precluded
(c) Unless a consolidation agreement from acting independently).
makes site-specific incorporation nec- (c) This section shall not preclude
essary, a previously incorporated group any individual affected by a Superfund
that includes all the individuals and site from participating in a recipient
groups that joined in applying for the group in his or her capacity as an indi-
TAG shall not be required to reincor- vidual. However, an individual whose
porate for the specific purpose of rep- financial involvement in a PRP (as
resenting affected individuals at the other than an employee or contractor)
site provided that the group can dem- is determined by the Award Official to
onstrate that it has a substantial his- be sufficiently substantial may be pre-
tory of involvement at the site. cluded from participation in a recipi-
ent group in any capacity.
§ 35.4025 Eligible applicants.
Eligible applicants, except as pro- § 35.4035 Evaluation criteria.
vided in § 35.4030, are any group of indi-
(a) EPA will award a TAG only after
viduals that may be affected by a re-
it has determined that all eligibility
lease or a threatened release at any fa-
and responsibility requirements listed
cility that is listed on the NPL or is
in §§ 35.4020, 35.4025, and 35.4030 are met,
proposed for listing under the NCP and
and after review of the applicant’s
at which a response action has begun.
qualifications in the narrative section
§ 35.4030 Ineligible applicants. of the grant application. Each appli-
cant will be required to provide infor-
(a) Potentially responsible parties
mation on how it meets the eligibility
(PRPs) are ineligible to receive or be
criteria in the grant application. The
represented in groups receiving or
‘‘Applicant Qualifications’’ section is
using TAGs.
Part IV of SF–424.
(1) No group established or sustained
by a PRP shall be eligible for a TAG. (b) Sole applicant. After the Letter of
(2) No group that receives services Intent process (see § 35.4040), if there is
provided by or paid for by a PRP shall still only one group, the evaluation
be eligible for a TAG. process will consist of the Agency en-
(3) For an applicant to obtain a grant suring that the applicant meets the
it must establish an identity separate criteria stated in § 35.4035(c) in addition
from that of an entity that is ineligible to the administrative and management
under § 35.4030 (a)(1) or (2) by making a capability requirements, and can dem-
reasonable demonstration of independ- onstrate that it is representative of the
ence from the ineligible entity. Such a community affected by a release or a
demonstration requires, at a minimum, threatened release at a facility that is
a showing that the applicant has a for- listed on the NPL or is proposed for
mal legal identity (e.g., officers) and a listing under the NCP and where a re-
substantive existence, including fi- sponse action has begun, as dem-
nances, separate and distinct from that onstrated by fulfillment of the criteria
of the ineligible entity. in § 35.4035(c). Once these requirements
(b) The following groups and organi- have been met by the sole applicant,
zations are also ineligible to receive or the Agency may award a TAG.
be represented in groups receiving or (c) Multiple applicants. Where there
using TAGs. are competing applicants EPA will
(1) Corporations that are not incor- evaluate the strengths and weaknesses
porated for the specific purpose of rep- of each applicant. EPA will rank each
resenting affected individuals at the applicant relative to other applicants.
site except as provided in § 35.4020(c); Each criterion is assigned a weight
(2) Academic institutions; showing its relative importance. EPA
(3) Political subdivisions (e.g., town- will rank each applicant by utilizing
ships and municipalities); and criteria described below. In order to
(4) Groups established or presently qualify, applicants must meet criterion
sustained by ineligible entities under 1 and/or 5 and not score zero on criteria
§ 35.4030 (b) through (c) (including emer- 2, 3, or 4.
578
(1) The presence of an actual or po- site soon may be awarded. These for-
tential health threat posed to group mal notification activities will gen-
members by the site (this criterion can erally be conducted far enough in ad-
be met by establishing a demonstrable vance of the start of the response ac-
threat to members’ health or a reason- tion to allow time for groups to con-
able belief that the site poses a sub- solidate, apply for and receive a grant
stantial threat to their health) (30 award, and procure a Technical Advisor
points); before work commences at the site.
(2) The applicant best represents (c) Other potential applicants will
groups and individuals affected by the have 30 days to contact the original ap-
site (20 points); plicant to form a coalition. If the com-
(3) The identification of how the munity groups are unable to form a co-
group plans to use the services of a alition, they must notify EPA within
Technical Advisor throughout the the 30 days. EPA will then accept sepa-
Superfund response action (20 points); rate applications from all interested
(4) The demonstrated intention and groups for an additional 30-day period.
ability of the applicant to inform oth- EPA may consider written requests for
ers in the community of the informa- extensions of this time. If there is a
tion provided by the Technical Advisor qualified applicant, a grant will be
(20 points); and awarded from among the competing ap-
(5) The presence of an actual or po- plications based on the evaluation cri-
tential economic threat or threat of an teria described in § 35.4035. The sched-
impaired use or enjoyment of the envi- ule for response activities at a site will
ronment to group members that is not be affected by the TAG application
caused by the site (this criterion can be process.
met by establishing a demonstrable
economic or environmental threat to § 35.4045 Submission of application.
group members or a reasonable belief (a) After meeting the LOI require-
that the site poses a substantial eco- ment, the applicant must then submit
nomic or environmental threat) (10 a TAG application on SF–424.
points). (b) An applicant must submit a budg-
§ 35.4040 Notification process. et clearly showing the proposed ex-
penditure of funds, how it will provide
(a) Groups wishing to apply for a the cash and/or in-kind contributions
TAG should first submit a Letter of In- to meet the ‘‘match’’ requirement, and
tent (LOI) to EPA. EPA will respond in how the funds and other resources, in-
writing to an LOI. A grant application cluding the ‘‘match’’ will be used to
submitted by a community group with- complete the TAG project. As part of
out having first submitted an LOI will the application process, the applicant
fulfill the LOI requirement, thus initi- must submit the following certifi-
ating the notification process. cations:
(b) Upon receipt of the first LOI, EPA (1) Drug-Free Workplace,
will undertake certain activities de-
(2) Debarment, Suspension, and Other
pending on the schedule for work at
Responsibility Matters, and
the site:
(3) Anti-Lobbying (if the grant is
(1) If commencement of the remedial
$100,000 or more).
investigation or a removal action is
not underway or scheduled to begin, § 35.4050 Timing of award.
EPA will advise the group in writing
that grant applications for the site are An award of a TAG will be made no
not yet being accepted. EPA may infor- earlier than the start of the response
mally notify other interested groups action. Grants to qualified applicants
that it has received an LOI; or could be delayed depending upon the
(2) If a response action is already unavailability of funds for the Superfund
derway or scheduled to begin, EPA program.
may conduct mailings and/or meetings,
in addition to the required public no- § 35.4055 Ineligible activities.
tice, to provide formal notice to other The following activities are ineligible
interested parties that a grant for the for assistance under this program:
579
§ 35.4060 40 CFR Ch. I (7–1–00 Edition)
(a) Litigation or underwriting legal § 35.4065 Technical advisor’s qualifica-

actions such as paying for attorney tions.
fees or paying for the time of the Tech- (a) A Technical Advisor must possess
nical Advisor to assist an attorney in the following credentials:
preparing a legal action or preparing (1) Demonstrated knowledge of haz-
for and serving as an expert witness at ardous or toxic waste issues;
any legal proceeding regarding or af-
(2) Academic training in a relevant
fecting the site;
discipline (e.g., biochemistry, toxi-
(b) Political activity and lobbying in
cology, environmental sciences, engi-
accordance with OMB Circular A–122;
neering); and
(c) Other activities inconsistent with
(3) Ability to translate technical in-
the cost principles stated in OMB Cir-
formation into terms understandable
cular A–122, ‘‘Cost Principles for Non–
to lay persons.
Profit Organizations’’;
(b) A Technical Advisor should pos-
(d) Tuition or other expenses for re-
sess the following credentials:
cipient group members or Technical
(1) Experience working on hazardous
Advisors to attend training, seminars
or toxic waste problems;
or courses, except for required Health
and Safety training for the Technical (2) Experience in making technical
Advisor to allow access to the local presentations;
Superfund site, provided written per- (3) Demonstrated writing skills; and
mission is obtained in advance from (4) Previous experience working with
the Regional EPA Office. Training may affected individuals or community
be approved for one time only at an groups or other groups of individuals.
amount not to exceed $1,000.00;
§ 35.4066 Procurement.
(e) Any activities or expenditures for
recipient group members’ travel; (a) Competition. (1) The recipient
(f) Generation of new primary data must provide maximum open and free
such as well drilling and testing, in- competition.
cluding split sampling; (2) Recipients must not unduly re-
(g) Reopening final Agency decisions strict or eliminate competition.
such as the Records of Decision or con- (3) The individual(s) developing the
ducting disputes with the Agency in specifications will be excluded from
accordance with its dispute resolution competition for the Technical Advisor
procedures set forth at 40 CFR part 30, and/or Grant Administrator position.
subpart L; and (b) Documentation. Recipients must
(h) Epidemiological or health studies, document all procurement activities
such as blood or urine testing. with written records that furnish rea-
sons for decisions.
§ 35.4060 Eligible activities. (c) Cost. (1) The recipient must deter-
TAGs may be used to obtain tech- mine that all costs are reasonable.
nical assistance in interpreting infor- (2) The recipient must conduct a cost
mation with regard to the nature of analysis of all contracts over $25,000
the hazard, remedial investigation and and all change orders regardless of dol-
feasibility study, record of decision, re- lar value.
medial design, selection and construc- (d) Debarment. Recipients and con-
tion of remedial action, operation and tractors must not make any contract
maintenance, or a significant removal at any time to anyone who is on the
action at a facility that is listed on the ‘‘List of Parties Excluded from Federal
NPL or proposed for listing and at Procurement or Nonprocurement Pro-
which a response action has begun. grams.’’
TAGs shall be used to fund activities (e) Recipient responsibility. (1) The re-
that will contribute to the public’s cipient is responsible for the settle-
ability to participate in the decision- ment and satisfactory completion of
making process by improving the all contractual and administrative
public’s understanding of overall condi- issues arising out of contracts entered
tions and activities. into under a grant.
580
(2) The recipient must ensure that (k) Bid protests. The recipient must
the contractor(s) perform in accord- establish a procedure for resolving pro-
ance with the terms and conditions of tests which complies with the provi-
the contract. sions of 40 CFR part 33, Subpart G—–
(f) Responsible contractors. The recipi- Protests.
ent shall award contracts only to re- (l) Competitive procurements. Recipi-
sponsible contractors that possess the ents shall not divide any procurements
potential ability to perform success- into smaller parts to get under any dol-
fully under the terms and conditions of lar limit.
a proposed contract. (1) If the aggregate amount of the
(g) Disadvantaged business enterprises. purchase is $1,000 or less, the recipient
The recipient shall comply with the may make the purchase as long as the
‘‘Small, Minority, Women’s, and Labor recipient determines that the price is
Surplus Area Business’’ requirements reasonable. No oral or written solicita-
in § 33.240. tions are necessary.
(h) Illegal contracts. Recipients may (2) If the aggregate amount of the
not award cost-plus-percentage-of-cost proposed contract is over $1,000 but less
or percentage-of-construction-cost con- than $25,000, the recipient must obtain
tracts. and document oral or written price
(i) Contract provisions. The recipient quotations from two or more qualified
must include the following provisions sources.
in each contract: (3) If the aggregate amount of the
(1) Statement of work; proposed contract is $25,000 to $50,000,
(2) Schedule for performance; the recipient must:
(3) Due dates for deliverables; (i) Solicit written bids from three or
(4) Total cost of the contract; more sources who are willing and able
(5) Payment provisions; and to do the work;
(6) The following clauses from 40 CFR (ii) Provide potential sources the
33.1030, ‘‘Model contract clauses’’: scope of the work to be performed and
(i) Supersession; the criteria the recipient will use to
(ii) Privity of Contract; evaluate bids;
(iii) Termination; (iii) Objectively evaluate all bids sub-
(iv) Remedies; mitted; and
(v) Audit, Access to Records; (iv) Notify all unsuccessful bidders.
(vi) Covenant Against Contingent
(4) If the aggregate amount of the
Fees;
proposed contract is greater than
(vii) Gratuities;
$50,000, the recipient must follow the
(viii) Responsibility of the Con-
procurement rules in 40 CFR part 33.
tractor; and
(m) Non-competitive procurements. If
(ix) Final Payment.
an adequate number of potential
(j) Subcontracting. A contractor must
sources cannot be identified, the recipi-
comply with the following provisions
ent may request written authority
in its award of subcontracts (these re-
from the EPA Award Official to award
quirements do not apply to subcontrac-
a contract to a sole bidder.
tors for the supply of materials to
produce equipment, materials, and sub- § 35.4067 Contract review.
contracts for catalog, off-the-shelf, or
manufactured items.): Each applicant must inform EPA of
(1) Section 35.4066(b) Documentation; any proposed contract over $1000 and
(2) Section 35.4066(c) Cost; must provide EPA the opportunity to
(3) Section 35.4066(d) Debarment; review the contract before it is award-
(4) Section 35.4066(f) Responsible con- ed or amended.
tractor;
(5) Section 35.4066(g) Disadvantaged § 35.4070 Sanctions.
business enterprises; If EPA determines that the recipient
(6) Section 35.4066(i) Illegal contracts; has failed to comply with any terms of
and the grant agreement, EPA will initiate
(7) Section 35.4066(j) Contract provi- an appropriate measure as set forth at
sions. 40 CFR part 30, subpart I.
581
§ 35.4075 40 CFR Ch. I (7–1–00 Edition)
§ 35.4075 Pre-award costs. (1) Multiple sites. In order to reduce

(a) Grant funds may not be used to the administrative burden to a recipi-
pay costs incurred prior to award of ent group where there are several eligi-
the TAG, except as provided in parable sites geographically close to each
graph (b) of this section. other, the limitation that a single re-
(b) Necessary and reasonable costs of cipient may not receive more than
incorporation, if incurred for the sole $50,000 may be waived by the Agency
purpose of complying with this sub- (e.g., 3 sites × $50,000 = grant of
part, will be eligible pre-award costs $150,000).
and may be charged to the TAG or (2) Complex sites. The Award Official
count toward the matching funds re- may waive the $50,000 per recipient
quirement described in § 35.4085(a)(2). limit if the recipient group dem-
onstrates that the site is especially
§ 35.4080 Method of payment. complex and that the following criteria
All grant recipients shall be reim- have been met:
bursed for grant-related eligible, allo- (i) Site(s) characteristics indicate
cable, allowable, and reasonable costs that due to the nature or volume of the
up to the amount of the TAG which site-related information for review, ad-
have been incurred and which the re- ditional funds are necessary;
cipients are currently and legally obli- (ii) The recipient’s management of
gated to pay. Recipients may submit any previous TAG award(s) was satis-
monthly or quarterly requests for re- factory and that costs incurred under
imbursement to the Agency on SF– the previous award are allowable and
270—Request for Advance or Reim- reasonable; and
bursement, or the appropriate State (iii) No recipient group may receive
form if the State is administering the more than $100,000 in TAG awards for
TAG Program. Costs incurred greater any one site.
than $500 may be submitted monthly. (b) Waivers of the Matching Funds
Requirement. The Award Official may
§ 35.4085 Grant limitations.
waive all or part of the recipient’s
TAGs will be awarded subject to the matching funds requirement only after
following limitations: establishing that:
(a) The recipient must contribute 20 (1) There is a need for a waiver be-
percent of the total costs of the TAG cause providing the ‘‘match’’would
project, except as provided in constitute an unusual financial hard-
§ 35.4090(b). ship;
(1) Absent specific statutory author- (2) A good faith effort at raising the
ity, no Federal funds may be included
‘‘match,’’ including obtaining in-kind
in the matching share.
services, has failed; and
(2) To meet the matching funds re-
quirement, the recipient may use cash (3) The waiver is necessary to facili-
and/or in-kind contributions. tate public participation in the selec-
(b) The TAG award will not initially tion of remedial action at the facility.
exceed $50,000 for a single recipient, ex- (c) Where a TAG recipient subse-
cept in the case of a single application quently obtains a waiver of the match-
covering multiple sites. ing funds requirement, the grant agree-
(c) Not more than one TAG may be ment must be amended. (See 40 CFR
awarded for any site. part 30, subpart G.)
(d) Administrative costs of the grant (d) No waivers of the matching funds
may not exceed 20 percent of project requirement will be granted by the
costs. Administrative costs may in- Agency once the Record of Decision
clude, but are not limited to, paying an has been issued at the last operable
individual(s) to administer the grant. unit at the site.
§ 35.4090 Waivers. § 35.4100 Disputes.

(a) Waivers of the $50,000 per recipi- (a) If the Agency administers the
ent limit may be granted under either TAG Program, the Agency shall review
or both of the following circumstances: disputes between Agency officials and
582
the applicant or recipient in accord- § 35.4105 Record retention and audits.

ance with its dispute resolution proce-
(a) Records and audit-recipient. (1)
dures set forth at 40 CFR part 30, sub-
Each recipient shall keep and preserve
part L.
full written financial records accu-
(b) If the State administers the TAG
rately disclosing the amount and the
Program, any applicant or recipient
disposition of any funds, whether in
who has been adversely affected by a
cash or in-kind, applied to the TAG
State’s action or omission may request
project, and shall comply with the
Agency review of such action or omis-
terms and conditions of the grant
sion, but must first submit a petition
agreement.
for review to the State agency that
(2) Such records shall be retained for
made the initial decision. The State
ten (10) years from the date of the final
must provide, in writing, normally
Financial Status Report, or until any
within 45 days of the date it receives
audit, litigation, cost–recovery, and/or
the petition, the basis for its decision
any disputes initiated before the end of
regarding the disputed action or omis-
the 10-year retention period are set-
sion. The final State decision must be
tled, whichever is longer. A recipient
labeled as such and, if adverse to the
must obtain EPA’s prior written ap-
applicant or recipient, must include
proval to destroy records after the
notice of the right to request Agency
record retention period.
review of the State decision under this
(3) Recipients must comply with
section. A State’s failure to address the
OMB Circular A–133 ‘‘Audits of Institu-
disputed action or omission in a timely
tions of Higher Education and Other
fashion, or in writing, will not preclude
Non-profit Organizations,’’ for all
Agency review.
grants over $25,000.
(1) Requests for Agency review must
(b) Records and audit-contractor(s). (1)
include:
The recipient shall require its con-
(i) A copy of any written State deci-
tractor(s) to keep and preserve detailed
sion;
records in connection with the con-
(ii) A statement of the amount in dis-
tract, reflecting acquisitions, work
pute;
progress, reports, expenditures, and
(iii) A description of the issues in-
commitments and indicating their re-
volved; and
lationship to established costs and
(iv) A concise statement of the objec-
schedules.
tions to the State decision.
(2) Contractors must retain records
(2) The request must be filed by reg-
for a period of 10 years after the termi-
istered mail, return receipt requested,
nation or end of the contract.
within 30 days of the date of the State
decision or within a reasonable time if (Approved by the Office of Management and
the State fails to respond in writing to Budget under control number 2030–0020)
the request for review.
(c) The Agency shall determine § 35.4110 Reports.
whether the State’s review is com- (a) Progress reports. Each recipient
parable to a Dispute Decision Official’s shall submit quarterly progress reports
(DDO) review pursuant to 40 CFR part to EPA for the TAG project 45 days
30, subpart L. If the State’s review is after the end of each calendar quarter.
comparable, the Regional Adminis- Progress reports shall fully describe in
trator will conduct the Agency’s re- chart or narrative format the progress
view of the State’s decision. If the achieved in relationship to the ap-
State’s review is not comparable, an proved schedule, budget, and the TAG
Agency DDO will review the State’s de- project milestones. Special problems
cision and issue a written decision. If encountered must be explained.
the Agency DDO issues a decision, the (b) Financial status report. Each re-
applicant or recipient may request a cipient shall submit to EPA a financial
Regional Administrator’s review of the status report annually, within 90 days
decision. The applicant or recipient after the anniversary date of the start
may request an EPA Assistant Admin- of the TAG project, and within 90 days
istrator review of a Regional Adminis- after the end of the grant budget period
trator’s decision pursuant to subpart L. and project. A recipient shall submit to
583
§ 35.4115 40 CFR Ch. I (7–1–00 Edition)
the EPA a financial status report on closed such information or no such in-
SF–269 or on the appropriate State formation exists; and
form if the State is administering the (3) A statement that it shall disclose
TAG Program. immediately any such information dis-
(c) Final report. Each recipient shall covered after submission of its bid or
submit to EPA a draft of the final re- after award. The recipient shall evalu-
port for review no later than 90 days ate such information and shall exclude
prior to the end of the TAG project and any prospective contractor if the re-
a final report within 90 days of the end cipient determines the prospective con-
of the project. The report shall docu- tractor’s conflict of interest is signifi-
ment TAG project activities over the cant and cannot be avoided or other-
entire period of grant support and shall wise resolved.
describe the recipient’s achievements (b) Contractors and subcontractors
with respect to stated TAG project pur- may not be Technical Advisors to re-
poses and objectives. cipient groups at the same NPL site for
(Approved by the Office of Management and which they are doing work for the Fed-
Budget under control number 2030–0020) eral or State government or any other
entity.
§ 35.4115 Availability of information.
Each recipient shall ensure that all Subpart N [Reserved]
final written products developed by a
contractor for the recipient under its Subpart O—Cooperative Agree-
grant are disseminated by providing ments and Superfund State
copies of such documents to EPA for Contracts for Superfund Re-
the local Superfund information repos-
itory(ies). sponse Actions
§ 35.4120 Budget period. AUTHORITY: 42 U.S.C. 9601 et seq.
The budget period may not exceed SOURCE: 55 FR 23007, June 5, 1990, unless
three years. A TAG project period may otherwise noted.
be comprised of more than one three-
year budget period. GENERAL
§ 35.4125 Federal facilities. § 35.6000 Authority.

EPA will use the criteria found in This regulation is issued under sec-
§ 35.4025 in evaluating the eligibility of tion 104 of the Comprehensive Environ-
any group of individuals who may be mental Response, Compensation, and
affected by a release or a threatened Liability Act of 1980 (42 U.S.C. 9601 et
release at a Federal facility for a TAG seq., Pub. L. 96–510, December 11, 1980,
under this subpart. otherwise referred to as ‘‘CERCLA’’),
as amended by the Superfund Amend-
§ 35.4130 Conflict of interest and dis- ments and Reauthorization Act of 1986
closure requirements. (Pub. L. 99–499, October 17, 1986; 100
(a) The recipient shall require each Stat. 1613, otherwise referred to as
prospective contractor on any contract ‘‘SARA’’).
to provide, with its bid or proposal: All references to CERCLA within this
(1) Information on its financial and regulation are meant to indicate
business relationship with all PRPs at CERCLA, as amended by SARA.
the site, and with their parent compa-
nies, subsidiaries, affiliates, sub- § 35.6005 Purpose and scope.
contractors, contractors, and current (a) This regulation codifies recipient
clients or attorneys and agents. This requirements for administering
disclosure requirement encompasses CERCLA-funded Cooperative Agree-
past and anticipated financial and busi- ments. This regulation also codifies re-
ness relationships, including services quirements for administering Super-
related to any proposed or pending liti- fund State Contracts (SSCs) for non-
gation, with such parties; State-lead remedial responses under-
(2) Certification that, to the best of taken pursuant to section 104 of
its knowledge and belief, it has dis- CERCLA.
584
(b) The requirements in this regula- termining, planning, and conducting a

tion do not apply to Technical Assist- response to a release or potential re-
ance Grants (TAGs) or to CERCLA release of a hazardous substance. These
search and development grants, includ- include Core Program, pre-remedial
ing the Superfund Innovative Tech- (i.e. preliminary assessments and site
nology Evaluation (SITE) Demonstra- inspections), support agency, remedial
tion Program. investigation/feasibility studies, reme-
(c) 40 CFR part 31, ‘‘Uniform Admin- dial design, remedial action, removal,
istrative Requirements for Grants and and enforcement activities.
Cooperative Agreements to State and
(2) Allowable costs. Those project
Local Governments,’’ establishes con-
sistency and uniformity among Federal costs that are: Eligible, reasonable,
agencies in the administration of necessary, and allocable to the project;
grants and Cooperative Agreements to permitted by the appropriate Federal
State, local, and Indian Tribal govern- cost principles; and approved by EPA
ments. For CERCLA-funded Coopera- in the Cooperative Agreement and/or
tive Agreements, this subpart supple- Superfund State Contract.
ments the requirements contained in (3) Architectural or engineering (A/E)
part 31 for States, political subdivi- services. Consultation, investigations,
sions thereof, and Indian Tribes. This reports, or services for design-type
regulation references those sections of projects within the scope of the prac-
part 31 that are applicable to CERCLA- tice of architecture or professional en-
funded Cooperative Agreements. gineering as defined by the laws of the
(d) Superfund monies for remedial ac- State or territory in which the recipi-
tions cannot be used by recipients for ent is located.
Federal facility cleanup activities. (4) Award official. The EPA official
When a cleanup is undertaken by an- with the authority to execute Coopera-
other Federal entity, the State, polit- tive Agreements and Superfund State
ical subdivision or Indian Tribe can
Contracts (SSCs) and to take other ac-
pursue funding for its involvement in
tions authorized by EPA Orders.
response activities from the appro-
priate Federal entity. (5) Budget period. The length of time
EPA specifies in a Cooperative Agree-
§ 35.6010 Eligibility. ment during which the recipient may
This regulation applies to States, po- expend or obligate Federal funds.
litical subdivisions and Indian Tribes. (6) CERCLA. The Comprehensive En-
Indian Tribes are only eligible to re- vironmental Response, Compensation,
ceive Superfund Cooperative Agree- and Liability Act of 1980 (42 U.S.C.
ments or Superfund State Contracts 9601–9657, Pub. L. 96–510, Dec. 11, 1980),
when they are Federally recognized, as amended by the Superfund Amend-
and when they meet the criteria set ments and Reauthorization Act of 1986
forth in § 300.515(b) of the NCP. Al- (Pub. L. 99–499, Oct. l7, 1986; 100 Stat.
though section 126 of CERCLA provides 1613).
that the governing body of an Indian (7) Change order. A written order
Tribe shall be afforded substantially issued by a recipient, or its designated
the same treatment as a State, in this agent, to its contractor authorizing an
subpart Indian Tribes are not included addition to, deletion from, or revision
in the definition of State in order to of, a contract, usually initiated at the
clarify those requirements with which contractor’s request.
Indian Tribes must comply and those (8) Claim. A demand or written asser-
with which they need not comply.
tion by a contractor seeking, as a mat-
§ 35.6015 Definitions. ter of right, changes in contract dura-
tion, costs, or other provisions, which
(a) As used in this subpart, the fol-
originally have been rejected by the re-
lowing words and terms shall have the
meanings set forth below: cipient.
(1) Activity. A set of CERCLA-funded (9) Closeout. The final EPA or recipi-
tasks that makes up a segment of the ent actions taken to assure satisfac-
sequence of events undertaken in de- tory completion of project work and to
585
§ 35.6015 40 CFR Ch. I (7–1–00 Edition)
fulfill administrative requirements, in- quisition cost of $5,000 or more per

cluding financial settlement, submis- unit.
sion of acceptable required final re- (19) Excess property. Any property
ports, and resolution of any out- under the control of a Federal agency
standing issues under the Cooperative that is not required for immediate or
Agreement and/or Superfund State foreseeable needs and thus is a can-
Contract. didate for disposal.
(10) Community Relations Plan (CRP). (20) Fair market value. The amount at
A management and planning tool out- which property would change hands be-
lining the specific community rela- tween a willing buyer and a willing
tions activities to be undertaken dur- seller, neither being under any compul-
ing the course of a response. It is de- sion to buy or sell and both having rea-
signed to provide for two-way commu- sonable knowledge of the relevant
nication between the affected commu- facts. Fair market value is the price in
nity and the agencies responsible for cash, or its equivalent, for which the
conducting a response action, and to property would have been sold on the
assure public input into the decision- open market.
making process related to the affected (21) Health and safety plan. A plan
communities. that specifies the procedures that are
(11) Construction. Erection, building, sufficient to protect on-site personnel
alteration, repair, remodeling, im- and surrounding communities from the
provement, or extension of buildings, physical, chemical, and/or biological
structures or other property. hazards of the site. The health and
(12) Contract. A written agreement safety plan outlines:
between an EPA recipient and another (i) Site hazards;
party (other than another public agen- (ii) Work areas and site control pro-
cy) or between the recipient’s con- cedures;
tractor and the contractor’s first tier (iii) Air surveillance procedures;
subcontractor. (iv) Levels of protection;
(13) Contractor. Any party to whom a (v) Decontamination and site emer-
recipient awards a contract. gency plans;
(14) Cooperative Agreement. A legal in- (vi) Arrangements for weather-re-
strument EPA uses to transfer money, lated problems; and
property, services, or anything of value (vii) Responsibilities for imple-
to a recipient to accomplish a public menting the health and safety plan.
purpose in which substantial EPA in- (22) In-kind contribution. The value of
volvement is anticipated during the a non-cash contribution (generally
performance of the project. from third parties) to meet a recipi-
(15) Core Program Cooperative Agree- ent’s cost sharing requirements. An in-
ment. A Cooperative Agreement that kind contribution may consist of
provides funds to a State or Indian charges for real property and equip-
Tribe to conduct CERCLA implementa- ment or the value of goods and services
tion activities that are not assignable directly benefiting the CERCLA-funded
to specific sites, but are intended to project.
support a State’s ability to participate (23) Indian Tribe. As defined by sec-
in the CERCLA response program. tion 101(36) of CERCLA, any Indian
(16) Cost analysis. The review and Tribe, band, nation, or other organized
evaluation of each element of contract group or community, including any
cost to determine reasonableness, Alaska Native village but not including
allocability, and allowability. any Alaska Native regional or village
(17) Cost share. The portion of allow- corporation, which is recognized as eli-
able project costs that a recipient con- gible for the special programs and serv-
tributes toward completing its project ices provided by the United States to
(i.e., non-Federal share, matching Indians because of their status as Indi-
share). ans.
(18) Equipment. Tangible, nonexpenda- (24) Intergovernmental Agreement. Any
ble, personal property having a useful written agreement between units of
life of more than one year and an ac- government under which one public
586
agency performs duties for or in con- of actions performed over time or any
cert with another public agency using actions that are concurrent but located
EPA assistance. This includes substate in different parts of a site.
and interagency agreements. (29) Operation and maintenance
(25) Lead agency. The Federal agency, (O&M). Measures required to maintain
State agency, political subdivision, or the effectiveness of response actions.
Indian Tribe that has primary respon- (30) Personal property. Property other
sibility for planning and implementing than real property. It includes both
a response action under CERCLA. supplies and equipment.
(26) Minority Business Enterprise (31) Political subdivision. The unit of
(MBE). A business which is: government that the State determines
(i) Certified as socially and economi- to have met the State’s legislative def-
cally disadvantaged by the Small Busi- inition of a political subdivision.
ness Administration;
(32) Potentially Responsible Party
(ii) Certified as a minority business
(PRP). Any individual(s), or com-
enterprise by a State or Federal agen-
pany(ies) identified as potentially lia-
cy; or
ble under CERCLA for cleanup or pay-
(iii) An independent business concern
ment for costs of cleanup of Hazardous
which is at least 51 percent owned and
Substance sites. PRPs may include in-
controlled by minority group mem-
dividual(s), or company(ies) identified
ber(s). A minority group member is an
as having owned, operated, or in some
individual who is a citizen of the
other manner contributed wastes to
United States and one of the following:
Hazardous Substance sites.
(A) Black American;
(33) Price analysis. The process of
(B) Hispanic American (with origins
evaluating a prospective price without
from Puerto Rico, Mexico, Cuba, South
regard to the contractor’s separate
or Central America);
cost elements and proposed profit.
(C) Native American (American In-
Price analysis determines the reason-
dian, Eskimo, Aleut, native Hawaiian);
ableness of the proposed contract price
or
based on adequate price competition,
(D) Asian-Pacific American (with ori-
previous experience with similar work,
gins from Japan, China, the Phil-
established catalog or market price,
ippines, Vietnam, Korea, Samoa,
law, or regulation.
Guam, the U.S. Trust Territories of the
Pacific, Northern Marianas, Laos, (34) Profit. The net proceeds obtained
Cambodia, Taiwan or the Indian sub- by deducting all allowable costs (direct
continent). and indirect) from the price. (Because
(27) National Priorities List (NPL). this definition of profit is based on ap-
EPA’s list of the most serious uncon- plicable Federal cost principles, it may
trolled or abandoned hazardous waste vary from many firms’ definition of
sites identified for possible long-term profit, and may correspond to those
remedial action under Superfund. A firms’ definition of ‘‘fee.’’)
site must be on the NPL to receive (35) Project. The activities or tasks
money from the Trust Fund for reme- EPA identifies in the Cooperative
dial action. The list is based primarily Agreement and/or Superfund State
on the score a site receives from the Contract.
Hazard Ranking System. (36) Project manager. The recipient of-
(28) Operable unit. A discrete action, ficial designated in the Cooperative
as described in the Cooperative Agree- Agreement or SSC as the program con-
ment or SSC, that comprises an incre- tact with EPA.
mental step toward comprehensively (37) Project officer. The EPA official
addressing site problems. The cleanup designated in the Cooperative Agree-
of a site can be divided into a number ment as EPA’s program contact with
of operable units, depending on the the recipient. Project officers are re-
complexity of the problems associated sponsible for monitoring the project.
with the site. Operable units may ad- (38) Project period. The length of time
dress geographical portions of a site, EPA specifies in the Cooperative
specific site problems, or initial phases Agreement and/or Superfund State
of an action, or may consist of any set Contract for completion of all project
587
§ 35.6020 40 CFR Ch. I (7–1–00 Edition)
work. It may be composed of more than (48) Supplies. All tangible personal
one budget period. property other than equipment as de-
(39) Quality Assurance Project Plan. A fined in this subpart.
written document, associated with re- (49) Support agency. The agency that
medial site sampling, which presents in furnishes necessary data to the lead
specific terms the organization (where agency, reviews response data and doc-
applicable), objectives, functional ac- uments, and provides other assistance
tivities, and specific quality assurance to the lead agency.
and quality control activities and pro- (50) Task. An element of a Superfund
cedures designed to achieve the data response activity identified in the
quality objectives of a specific Statement of Work of a Superfund Co-
project(s) or continuing operation(s). operative Agreement or a Superfund
(40) Real property. Land, including State Contract.
land improvements, structures, and ap- (51) Title. The valid claim to property
purtenances thereto, excluding mov- which denotes ownership and the rights
able machinery and equipment. of ownership, including the rights of
possession, control, and disposal of
(41) Recipient. Any State, political
property.
subdivision thereof, or Indian Tribe
(52) Unit acquisition cost. The net in-
which has been awarded and has ac-
voice unit price of the property includ-
cepted an EPA Cooperative Agreement.
ing the cost of modifications, attach-
(42) Services. A recipient’s in-kind or ments, accessories, or auxiliary appa-
a contractor’s labor, time, or efforts ratus necessary to make the property
which do not involve the delivery of a usable for the purpose for which it was
specific end item, other than docu- acquired. Other charges, such as the
ments (e.g., reports, design drawings, cost of installation, transportation,
specifications). This term does not in- taxes, duty, or protective in-transit in-
clude employment agreements or col- surance, shall be included or excluded
lective bargaining agreements. from the unit acquisition cost in ac-
(43) Small business. A business as de- cordance with the recipient’s regular
fined in section 3 of the Small Business accounting practices.
Act, as amended (15 U.S.C. 632). (53) Value engineering. A systematic
(44) State. The several States of the and creative analysis of each contract
United States, the District of Colum- term or task to ensure that its essen-
bia, the Commonwealth of Puerto Rico, tial function is provided at the overall
Guam, American Samoa, the Virgin Is- lowest cost.
lands, the Commonwealth of Northern (54) Women’s Business Enterprise
Marianas, and any territory or posses- (WBE). A business which is certified as
sion over which the United States has a Women’s Business Enterprise by a
jurisdiction. State or Federal agency, or which
(45) Statement of Work (SOW). The por- meets the following definition. A Wom-
tion of the Cooperative Agreement ap- en’s Business Enterprise is an inde-
plication and/or Superfund State Con- pendent business concern which is at
tract that describes the purpose and least 51 percent owned by a woman or
scope of activities and tasks to be car- women who also control and operate it.
ried out as a part of the proposed Determination of whether a business is
project. at least 51 percent owned by a woman
(46) Subcontractor. Any first tier or women shall be made without regard
party that has a contract with the re- to community property laws.
cipient’s prime contractor. (b) Those terms not defined in this
(47) Superfund State Contract (SSC). A section shall have the meanings set
joint, legally binding agreement be- forth in section 101 of CERCLA, 40 CFR
tween EPA and another party(s) to ob- part 31 and 40 CFR part 300 (the Na-
tain the necessary assurances before an tional Contingency Plan).
EPA-lead remedial action or any polit-
ical subdivision-lead activities can § 35.6020 Other statutory provisions.
begin at a site, and to ensure State or The recipient must comply with the
Indian Tribe involvement as required Federal laws described in 40 CFR 31.13,
under CERCLA section 121(f). Principal Environmental Statutory
588
Provisions; Public Law 98–473, as im- certify in writing that they will pro-
plemented in the Department of Inte- vide a drug-free workplace. The appli-
rior, Bureau of Indian Affairs, regula- cant must follow the requirements con-
tion at 25 CFR part 20; 25 CFR part 20 tained in the OMB notice entitled
and with other applicable statutory ‘‘Government-wide Implementation of
provisions. the Drug-Free Workplace Act of 1988’’
published January 31, 1989.
§ 35.6025 Deviation from this subpart. (4) Certification Regarding Debarment,
On a case-by-case basis, EPA will Suspension, and Other Responsibility
consider requests for an official devi- Matters (EPA Form 5700–49). The appli-
ation from the non-statutory provi- cant must certify that it is in compli-
sions of this regulation. Refer to the ance with Executive Order 12549 and 40
requirements regarding additions and CFR part 32.
exceptions described in 40 CFR 31.6 (b), (5) Procurement Certification. The ap-
(c), and (d). plicant must evaluate its own procure-
ment system to determine if the sys-
PRE-REMEDIAL RESPONSE COOPERATIVE tem meets the intent of the require-
AGREEMENTS ments of this subpart. After evaluating
§ 35.6050 Eligibility for pre-remedial its procurement system, the applicant
Cooperative Agreements. or recipient must complete the ‘‘Pro-
curement System Certification’’ (EPA
States, political subdivisions, and In- Form 5700–48) and submit the form to
dian Tribes may apply for pre-remedial
EPA with its application.
response Cooperative Agreements.
(6) Anti-Lobbying Certification. The ap-
§ 35.6055 State-lead pre-remedial Co- plicant must certify (40 CFR part 34,
operative Agreements. appendix A) that no appropriated funds
will be expended to pay any person for
(a) To receive a State-lead pre-reme-
dial Cooperative Agreement, the appli- influencing or attempting to influence
cant must submit an ‘‘Application for an officer or employee of any agency, a
Federal Assistance’’ (SF–424) for non- Member of Congress, an officer or em-
construction programs. Applications ployee of Congress, or an employee of a
for additional funding need include Member of Congress, in connection
only the revised pages. The application with any Federal award in excess of
must include the following: $100,000, in accordance with section 319
(1) Budget sheets (SF–424A); of Public Law 101–121. The applicant
(2) A Project narrative statement, in- must follow the requirements in the In-
cluding the following: terim Final Rule entitled, ‘‘New Re-
(i) A list of sites at which the appli- strictions on Lobbying’’ published on
cant proposes to undertake pre-reme- February 26, 1990.
dial tasks. If the recipient proposes to (b) Pre-remedial Cooperative Agreement
revise the list, the recipient may not requirements. The recipient must com-
incur costs on a new site until the ply with all terms and conditions in
project officer has approved the site; the Cooperative Agreement, and with
(ii) A Statement of Work (SOW) which the following requirements:
must include a detailed description, by (1) Health and safety plan. (i) Before
task, of activities to be conducted, the beginning field work, the recipient
projected costs associated with each must have a health and safety plan in
task, the number of products to be place providing for the protection of
completed, and a quarterly schedule in- on-site personnel and area residents.
dicating when these products will be This plan need not be submitted to
submitted to EPA; EPA, but must be made available to
(iii) A schedule of deliverables. EPA upon request.
(3) Drug-Free Workplace Certification. (ii) The recipient’s health and safety
The applicant must certify (40 CFR plan must comply with Occupational
part 32, subpart F) that it is in compli- Safety and Health Administration
ance with the Drug-Free Workplace (OSHA) 29 CFR 1910.120, entitled ‘‘Haz-
Act of 1988 (Pub. L. 100–690, title V, sub- ardous Waste Operations and Emer-
title D), which requires applicants to gency Response,’’ unless the recipient
589
§ 35.6060 40 CFR Ch. I (7–1–00 Edition)
is an Indian Tribe which is exempt REMEDIAL RESPONSE COOPERATIVE

from OSHA requirements. AGREEMENTS
(2) Quality assurance. (i) The recipient
must comply with the quality assur- § 35.6100 Eligibility for remedial Coop-
erative Agreements.
ance requirements described in 40 CFR
31.45. States, Indian Tribes, and political
(ii) The recipient must have an EPA- subdivisions may apply for remedial re-
approved non-site-specific quality as- sponse Cooperative Agreements.
surance plan in place before beginning
§ 35.6105 State-lead remedial Coopera-
field work. The recipient must submit tive Agreements.
the plan to EPA in adequate time (gen-
erally 45 days) for approval to be grant- To receive a State-lead remedial Co-
ed before beginning field work. operative Agreement, the applicant
must submit the following items to
(iii) The quality assurance plan must
EPA:
comply with the requirements regard-
(a) Application form, as described in
ing split sampling described in section
§ 35.6055(a) of this subpart, accompanied
104(e)(4)(B) of CERCLA, as amended. by the following:
§ 35.6060 Political subdivision-lead (1) Budget sheets (SF–424A) displaying
pre-remedial Cooperative Agree- costs by site, activity and operable
ments. unit, as applicable;
(2) A Project narrative statement, in-
(a) If the Award Official determines cluding the following:
that a political subdivision’s lead in- (i) A site description, including a dis-
volvement in pre-remedial activities cussion of the location of each site, the
would be more efficient, economical physical characteristics of each site
and appropriate than that of a State, (site geology and proximity to drinking
based on the number of sites to be ad- water supplies), the nature of the re-
dressed and the political subdivision’s lease (contaminant type and affected
history of program involvement, a pre- media), past response actions at each
remedial Cooperative Agreement may site, and response actions still required
be awarded under this section. at each site;
(b) The political subdivision must (ii) A site-specific Statement of Work
comply with all of the requirements (SOW), including estimated costs per
described in § 35.6055 of this subpart. task, and a standard task to ensure
(c) The Award Official may require a that a sign is posted at the site pro-
three-party Superfund State Contract viding the appropriate contacts for ob-
for pre-remedial activities. taining information on activities being
(d) If the preliminary assessment/site conducted at the site, and for reporting
investigation (PA/SI) shows that list- suspected criminal activities;
ing the site on the NPL is necessary, (iii) A statement designating a lead site
project manager among appropriate
the political subdivision must enter
State offices. This statement must
into a three-party Superfund State
demonstrate that the lead State agen-
Contract before any remedial activities cy has conducted coordinated planning
begin. of response activities with other State
agencies. The statement must identify
§ 35.6070 Indian Tribe-lead pre-reme-
dial Cooperative Agreements. the name and position of those individ-
uals who will be responsible for coordi-
The Indian Tribe must comply with nating the State offices;
all of the requirements described in (iv) A site-specific Community Relations
§ 35.6055 of this subpart, except for the Plan or an assurance that field work
intergovernmental review require- will not begin until one is in place. The
ments included in the ‘‘Application for Regional community relations coordi-
Federal Assistance’’ (SF–424). nator must approve the Community
590
Relations Plan before the recipient be- Act of 1988 (Pub. L. 100–690, title V, sub-
gins field work. The recipient must title D), which requires applicants to
comply with the community relations certify in writing that they will pro-
requirements described in EPA policy vide a drug-free workplace.
and guidance, and in the National Con- (4) Certification Regarding Debarment,
tingency Plan (NCP); Suspension, and Other Responsibility
(v) A site-specific health and safety Matters (EPA Form 5700–49). The appli-
plan, or an assurance that the applicant must certify that it is in compli-
cant will have a final plan before start- ance with Executive Order 12549 and 40
ing field work. Unless specifically CFR part 32.
waived by the award official, the appli- (5) Procurement Certification. The ap-
cant must have a site-specific health plicant must evaluate its own procure-
and safety plan in place providing for ment system to determine if the sys-
the protection of on-site personnel and tem meets the intent of the require-
area residents. The site-specific health ments of this subpart. After evaluating
and safety plan must comply with Oc- its procurement system, the applicant
cupational Safety and Health Adminis- or recipient must complete the ‘‘Pro-
tration (OSHA) 29 CFR 1910.120, enti- curement System Certification’’ (EPA
tled ‘‘Hazardous Waste Operations and Form 5700–48) and submit the form to
Emergency Response,’’ unless the re- EPA with its application.
cipient is an Indian Tribe exempt from
(6) Anti-Lobbying Certification. The ap-
OSHA requirements;
plicant must certify (40 CFR part 34,
(vi) Quality assurance—(A) General. If
appendix A) that no appropriated funds
the project involves environmentally
will be expended to pay any person for
related measurements or data genera-
influencing or attempting to influence
tion, the recipient must comply with
an officer or employee of any agency, a
the requirements regarding quality as-
Member of Congress, an officer or em-
surance described in 40 CFR 31.45.
ployee of Congress, or an employee of a
(B) Quality assurance plan. The appli-
Member of Congress, in connection
cant must have a separate quality as-
with any Federal award in excess of
surance project plan and/or sampling
plan for each site to be covered by the $100,000, in accordance with section 319
Cooperative Agreement. The applicant of Public Law 101–121. The applicant
must submit the quality assurance must follow the requirements in the In-
project plan and sampling plan, which terim Final Rule entitled, ‘‘New Re-
incorporates results of any site inves- strictions on Lobbying’’ published on
tigation performed at that site, to EPA February 26, 1990.
with its Cooperative Agreement appli- (b) CERCLA Assurances. Before a Co-
cation. However, at the option of the operative Agreement for remedial ac-
EPA award official with program con- tion can be awarded, the State must
currence, the applicant may submit provide EPA with written assurances
with its application a schedule for de- as specified below.
veloping the detailed site-specific qual- (1) Operation and maintenance. The
ity assurance plan (generally 45 days State must provide an assurance that
before beginning field work). Field it will assume responsibility for the op-
work may not begin until EPA ap- eration and maintenance (O&M) of im-
proves the site-specific quality assur- plemented CERCLA-funded remedial
ance plan. actions for the expected life of each
(C) Split sampling. The quality assur- such action. In addition, even if a polit-
ance plan must comply with the re- ical subdivision is designated as being
quirements regarding split sampling responsible for O&M, the State must
described in section 104(e)(4)(B) of guarantee that it will assume any or
CERCLA, as amended. all O&M activities in the event of de-
(vii) A schedule of deliverables to be fault by the political subdivision.
prepared during response activities. (2) Cost sharing. The State must pro-
(3) Drug-Free Workplace Certification. vide assurances for cost sharing as fol-
The applicant must certify (40 CFR lows:
part 32, subpart F) that it is in compli- (i) Ten percent. Where a facility was
ance with the Drug-Free Workplace privately operated, whether privately
591
§ 35.6110 40 CFR Ch. I (7–1–00 Edition)
or publicly owned, at the time of dis- § 35.6110 Indian Tribe-lead remedial

posal, the State must provide 10 per- Cooperative Agreements.
cent of the cost of the remedial action, (a) Application requirements. The In-
if CERCLA-funded. dian Tribe must comply with all of the
(ii) Fifty percent. Where a facility was requirements described in § 35.6105(a)
publicly operated by a State or polit- and, if appropriate, § 35.6105(b)(5) of this
ical subdivision at the time of disposal subpart. Indian tribes are not required
of hazardous substances at the facility, to comply with the intergovernmental
the State must provide at least 50 per- review requirements included in the
cent of the cost of removal, remedial ‘‘Application for Federal Assistance’’
planning, and remedial action if the re- (SF–424). Consistent with the NCP
medial action is CERCLA-funded. (§ 300.510(e)(2)), this rule does not ad-
(3) Twenty-year waste capacity. The dress whether Indian tribes are States
State must assure EPA of the avail- for the purpose of CERCLA section
ability of hazardous waste treatment 104(c)(9).
or disposal facilities within and/or out- (b) Cooperative Agreement require-
side the State that comply with sub- ments. (1) The Indian tribe must comply
title C of the Solid Waste Disposal Act with all terms and conditions in the
and that have adequate capacity for Cooperative Agreement.
the destruction, treatment, or secure (2) If EPA determines as part of the
disposition of all hazardous wastes that remedy selection process that an inter-
are reasonably expected to be gen- est in real property must be acquired
erated within the State during the 20- in order to conduct the site-specific re-
year period following the date of the sponse action, the Indian tribe will be
response agreement. A remedial re- required, to the extent of its legal au-
sponse action cannot be funded unless thority, to assure EPA that it will take
this assurance is provided consistent title to, acquire interest in, or accept
with § 300.510 of the NCP. EPA will de- transfer of such interest in real prop-
termine whether the State’s assurance erty acquired with CERCLA funds, in-
is adequate. cluding any interest in property that is
(4) Off-site storage, treatment, or dis- acquired to ensure the reliability of in-
posal. If off-site storage, destruction, stitutional controls restricting the use
treatment, or disposal is required, the of that property. (See § 35.6400 of this
State must assure the availability of a subpart regarding information on prop-
hazardous waste disposal facility that erty title and interest requirements.)
is in compliance with subtitle C of the (3) If it is designated the lead for re-
Solid Waste Disposal Act and is accept- medial action, the Indian Tribe must
able to EPA. The lead agency of the provide the notification required at
State must provide the notification re- § 35.6120, substituting the term Indian
quired at § 35.6120, if applicable. Tribe for the term State in that sec-
(5) Real property acquisition. If EPA tion, and out-of-jurisdiction for out-of-
determines in the remedy selection State.
process that an interest in real prop-
erty must be acquired in order to con- § 35.6115 Political subdivision-lead re-
duct a response action, such acquisi- medial Cooperative Agreements.
tion may be funded under a Coopera- (a) General. If both the State and
tive Agreement. EPA may acquire an EPA agree, a political subdivision with
interest in real estate for the purpose the necessary capabilities and jurisdic-
of conducting a remedial action only if tional authority may assume the lead
the State provides assurance that it responsibility for the remedial activ-
will accept transfer of such interest in ity, or a portion thereof, at a site. The
accordance with 40 CFR 300.510(f). The State and political subdivision must
State must provide this assurance even enter into a three-party Superfund
if it intends to transfer this interest to State Contract (SSC) with EPA before
a third party. (See § 35.6400 of this sub- a political subdivision can enter into a
part for additional information on real Cooperative Agreement.
property acquisition requirements.) (b) Three-party Superfund State Con-
[55 FR 23007, June 5, 1990, as amended at 59 tract requirements. The three-party SSC
FR 35853, July 14, 1994] must specify the responsibilities of the
592
signatories. By signing the SSC, the (1) The name and location of the fa-
State and the political subdivision cility to which the CERCLA waste is to
agree to follow the appropriate admin- be shipped;
istrative requirements regarding SSCs (2) The type and quantity of CERCLA
described in §§ 35.6805, 35.6815, and waste to be shipped;
35.6820 of this subpart. Furthermore, (3) The expected schedule for the
EPA, the State, and the political sub- shipments of the CERCLA waste; and
division agree that the SSC: (4) The method of transportation of
(1) Specifies the substantial and the CERCLA waste.
meaningful involvement of the State (d) The recipient must notify the
as required by section 121(f)(1) of State or Indian Tribal government in
CERCLA, as amended; and which the planned receiving facility is
(2) Includes the State’s CERCLA sec- located of major changes in the ship-
tion 104 assurances, if the political sub- ment plan, such as a decision to ship
division is designated the lead for re- the CERCLA waste to another facility
medial action. within the same receiving State, or to
(c) Political subdivision Cooperative a facility in another State.
Agreement requirements—(1) Application (e) The recipient must provide rel-
requirements. To receive a remedial Co- evant information on the off-site ship-
operative Agreement, the political sub- ments, including the information in
division must prepare an application paragraph (c) above, as soon as possible
which includes the documentation de- after the award of the contract and,
scribed in § 35.6105 (a)(1) through (a)(6). where practicable, before the CERCLA
(2) Cooperative Agreement requirements. waste is actually shipped.
The political subdivision must comply ENFORCEMENT COOPERATIVE
with all terms and conditions in the AGREEMENTS
Cooperative Agreement. If it is des-
ignated the lead for remedial action, § 35.6145 Eligibility for enforcement
the political subdivision must provide Cooperative Agreements.
the notification required at § 35.6120,
Pursuant to CERCLA section 104(d),
substituting the term ‘‘political sub-
States, political subdivisions thereof,
division’’ for the term ‘‘State’’ in that
and Indian Tribes may apply for en-
section.
forcement Cooperative Agreements. To
§ 35.6120 Notification of the out-of- be eligible for an enforcement Coopera-
State or out-of-Indian Tribal juris- tive Agreement, the State, political
diction transfer of CERCLA waste. subdivision or Indian Tribe must dem-
onstrate that it has the authority, ju-
(a) The recipient must provide writ- risdiction, and the necessary adminis-
ten notification of off-site shipments of trative capabilities to take an enforce-
CERCLA waste from a site to an out- ment action(s) to compel PRP cleanup
of-State or out-of-Indian Tribal juris- of the site, or recovery of the cleanup
diction waste management facility to: costs. To accomplish this, the State,
(1) The appropriate State environ- political subdivision or Indian Tribe,
mental official for the State in which respectively, must submit the fol-
the waste management facility is lo- lowing for EPA approval:
cated; and/or (a) A letter from the State Attorney
(2) The appropriate Indian Tribal of- General, or comparable local official
ficial who has jurisdictional authority (of a political subdivision) or com-
in the area where the waste manage- parable Indian Tribal official, certi-
ment facility is located; and fying that it has the authority, juris-
(3) The EPA Award Official. diction, and administrative capabili-
(b) The notification of off-site ship- ties that provide a basis for pursuing
ments does not apply when the total enforcement actions against a PRP to
volume of all such shipments from the secure the necessary response;
site does not exceed 10 cubic yards. (b) A copy of the applicable State,
(c) The notification must be in writ- local (political subdivision) or Indian
ing and must provide the following in- Tribal statute(s) and a description of
formation, where available: how it is implemented;
593
§ 35.6150 40 CFR Ch. I (7–1–00 Edition)
(c) Any other documentation re- (1) Assure EPA that it will notify and
quired by EPA to demonstrate that the consult with EPA promptly if the re-
State, local (political subdivision) or cipient determines that its laws or
Indian Tribal government has the stat- other restrictions prevent the recipient
utory authority, jurisdiction, and ad- from acting consistently with
ministrative capabilities to perform CERCLA; and
the enforcement activity(ies) to be (2) If the applicant is seeking funds
funded under the Cooperative Agree- for oversight of PRP cleanup, the ap-
ment. plicant must:
(i) Demonstrate that the proposed
§ 35.6150 Activities eligible for funding
under enforcement Cooperative Statement of Work or cleanup plan
Agreements. prepared by the PRP satisfies the re-
cipient’s enforcement goals for those
An enforcement Cooperative Agree- instances in which the recipient is
ment application from a State, polit- seeking funding for oversight of PRP
ical subdivision or Indian Tribe may cleanup activities negotiated under the
request funding for the following en- recipient’s own enforcement authori-
forcement activities:
ties; and
(a) PRP searches;
(ii) Demonstrate that the PRP has
(b) Issuance of notice letters and ne- the capability to attain the goals set
gotiation activities; forth in the plan;
(c) Administrative and judicial en- (iii) Demonstrate that it has taken
forcement actions taken under State or
all necessary action to compel PRPs to
Indian Tribal law;
fund the oversight of cleanup activities
(d) Management assistance and over- negotiated under the recipient’s en-
sight of PRPs during Federal enforce- forcement authorities.
ment response;
(e) Oversight of PRPs during a State, REMOVAL RESPONSE COOPERATIVE
political subdivision or Indian Tribe AGREEMENTS
enforcement response contingent on
the applicant having taken all nec- § 35.6200 Eligibility for removal Coop-
essary action to compel PRPs to fund erative Agreements.
the oversight of cleanup activities ne- When a planning period of more than
gotiated under the recipient’s enforce- six months is available, States, polit-
ment authorities. If the State, political
ical subdivisions and Indian Tribes
subdivision, Indian Tribe or EPA can-
may apply for removal Cooperative
not obtain PRP commitment to fund
Agreements.
such oversight activities, then these
activities will be considered eligible for § 35.6205 Removal Cooperative Agree-
CERCLA funding under an enforcement ments.
Cooperative Agreement.
(a) The State must comply with the
§ 35.6155 State, political subdivision or requirements described in § 35.6105(a) of
Indian Tribe-lead enforcement Co- this subpart. To the extent practicable,
operative Agreements. the State must comply with the notifi-
(a) The State, political subdivision or cation requirement at § 35.6120 when a
Indian Tribe must comply with the re- removal action is necessary and in-
quirements described in § 35.6105 (a)(1) volves out-of-State shipment of
through (a)(6) of this subpart, as appro- CERCLA wastes, and when, based on
priate. the site evaluation, EPA determines
(b) The CERCLA section 104 assur- that a planning period of more than six
ances described in § 35.6105(b) are not months is available before the removal
applicable for enforcement Cooperative activities must begin.
Agreements. (b) Pursuant to CERCLA section
(c) Before an enforcement Coopera- 104(c)(3), the State is not required to
tive Agreement is awarded, the State, share in the cost of a CERCLA-funded
political subdivision or Indian Tribe removal action, unless the removal is
must: conducted at a site that was publicly
594
operated by a State or political sub- CERCLA implementation activities

division at the time of disposal of haz- that are not directly assignable to spe-
ardous substances and a CERCLA-fund- cific sites, but are intended to support
ed remedial action is ultimately under- a State’s or Indian Tribe’s ability to
taken at the site. In this situation, the participate in the CERCLA; response
State must share at least 50 percent in program.
the cost of all removal, remedial plan- (b) Only the State or Indian Tribal
ning, and remedial action costs at the government agency designated as the
time of the remedial action as stated in single point of contact with EPA for
§ 35.6105(b)(2)(ii) of this subpart. CERCLA implementation is eligible to
(c) If both the State and EPA agree, receive a Core Program Cooperative
a political subdivision with the nec- Agreement.
essary capabilities and jurisdictional (c) When it is more economical for a
authority may assume the lead respon- government entity other than the re-
sibility for all, or a portion, of the recipient (such as a political subdivision
moval activity at a site. Political sub- or State Attorney General) to imple-
divisions must comply with the re- ment tasks funded through a Core Pro-
quirements described in § 35.6105(a) of gram Cooperative Agreement, benefits
this subpart. To the extent practicable, to such entities must be provided for in
political subdivisions also must comply an intergovernmental agreement.
with the notification requirement at
§ 35.6120 when a removal action is nec- § 35.6220 General.
essary and involves the shipment of The recipient of a Core Program Co-
CERCLA wastes out of the State’s ju- operative Agreement must comply
risdiction, and when, based on the site with the requirements regarding finan-
evaluation, EPA determines that a cial administration (§§ 35.6270 through
planning period of more than six 35.6290 of this subpart), property
months is available before the removal (§§ 35.6300 through 35.6450), procurement
activities must begin. (§§ 35.6550 through 35.6610), reporting
(d) The State must provide the cost (§§ 35.6650 through 35.6670), records
share assurance discussed in § 35.6205(b) (§§ 35.6700 through 35.6710), and other
above on behalf of a political subdivi- administrative requirements under a
sion that is given the lead for a re- Cooperative Agreement (§§ 35.6750
moval action. through 35.6790) described in this sub-
(e) Indian Tribes must comply with part. Recipients may not incur site-
the requirements described in specific costs. Where these sections en-
§ 35.6105(a) of this subpart. To the ex- tail site-specific requirements, the re-
tent practicable, Indian Tribes also cipient is not required to comply on a
must comply with the notification re- site-specific basis.
quirement at §35.6120 when a removal
action is necessary and involves the § 35.6225 Activities eligible for funding
shipment of CERCLA wastes out of the under Core Program Cooperative
Indian Tribe’s jurisdiction, and when, Agreements.
based on the site evaluation, EPA de- To be eligible for funding under a
termines that a planning period of Core Program Cooperative Agreement,
more than six months is available be- activities must support a recipient’s
fore the removal activities must begin. abilities to implement CERCLA. Once
(f) Indian Tribes are not required to the recipient has in place program
share in the cost of a CERCLA-funded functions described in § 35.6225 (a)
removal action. through (d) below, EPA will evaluate
the recipient’s program needs to sus-
CORE PROGRAM COOPERATIVE tain interaction with EPA in CERCLA
AGREEMENTS implementation as described in
§ 35.6225(e). The amount of funding pro-
§ 35.6215 Eligibility for Core Program vided under the Core Program will be
Cooperative Agreements. determined by EPA based on the avail-
(a) States and Indian Tribes may ability of funds and the recipient’s pro-
apply for Core Program Cooperative gram needs in the areas described in (a)
Agreements in order to conduct through (d) below:
595
§ 35.6230 40 CFR Ch. I (7–1–00 Edition)
(a) Procedures for emergency re- (a) A project narrative statement, in-
sponse actions and longer-term remedi- cluding the following:
ation of environmental and health (1) A Statement of Work (SOW) which
risks at hazardous waste sites (includ- must include a detailed description of
ing but not limited to the development the CERCLA-funded activities and
of generic health and safety plans, tasks to be conducted, the projected
quality assurance project plans, and costs associated with each task, the
community relation plans); number of products to be completed,
(b) Provisions for satisfying all re- and a schedule for implementation. El-
quirements and assurances (including
igible activities under Core Program
the development of a fund or other fi-
Cooperative Agreements are discussed
nancing mechanism(s) to pay for stud-
ies and remediation activities); in § 35.6225 of this subpart;
(c) Legal authorities and enforce- (2) A background statement, describing
ment support associated with proper the current abilities and authorities of
administration of the recipient’s pro- the recipient’s program for imple-
gram and with efforts to compel poten- menting CERCLA, the program’s needs
tially responsible parties to conduct or to sustain and increase recipient in-
pay for studies and/or remediation (involvement in CERCLA implementa-
cluding but not limited to the develop- tion, and the impact of Core Program
ment of statutory authorities; access Cooperative Agreement funds on the
to legal assistance in identifying appli- recipient’s involvement in site-specific
cable or relevant and appropriate re- CERCLA response.
quirements of other laws; and develop- (b) Budget sheets (SF–424A);
ment and maintenance of the adminis- (c) Proposed project and budget periods
trative, financial and recordkeeping for CERCLA-funded activities. The
systems necessary for cost recovery ac- project and budget periods may be one
tions under CERCLA); or more years and may be extended in-
(d) Efforts necessary to hire and crementally, up to 12 months at a time,
train staff to manage publicly-funded with EPA approval;
cleanups, oversee responsible party- (d) Certifications for a drug-free work-
lead cleanups, and provide clerical sup-
place; debarment, suspensions, and
port; and
other responsibility matters; procure-
(e) Other activities deemed necessary
ment; and lobbying, pursuant to
by EPA to support sustained EPA/re-
§ 35.6105(a) (3) through (6) of this sub-
cipient interaction in CERCLA imple-
part.
mentation (including but not limited
to general program management and § 35.6235 Cost sharing.
supervision necessary for a recipient to
implement CERCLA activities, and The recipient of a Core Program Co-
interagency coordination on all phases operative Agreement must provide at
of CERCLA response). least ten percent of the direct and indi-
Continued funding of tasks in subse- rect costs of all activities covered by
quent years will be based on an evalua- the Core Program Cooperative Agree-
tion of demonstrated progress towards ment. The recipient must provide its
the goals in the existing Core Program cost share with non-Federal funds or
Cooperative Agreement Statement of with Federal funds authorized by stat-
Work. ute to be used for matching purposes.
Funds used for matching purposes
§ 35.6230 Application requirements. under any other Federal grant or Coop-
To receive a Core Program Coopera- erative Agreement cannot be used for
tive Agreement, the applicant must matching purposes under a Core Pro-
submit an application form (‘‘Applica- gram Cooperative Agreement. The re-
tion for Federal Assistance,’’ SF–424, cipient may provide its share using in-
for non-construction programs) to kind contributions if such contribu-
EPA. Applications for additional fund- tions are provided for in the Coopera-
ing need include only the revised pages. tive Agreement. The recipient may not
The application must include the fol- use CERCLA State credits to offset any
lowing: part of the recipient’s required match
596
for Core Program Cooperative Agree- through 35.6790) described in this sub-
ments. See § 35.6285 (c), (d), and (f) re- part.
garding credit, over match, and ad-
vance match, respectively. § 35.6255 Cost sharing.
The requirements for cost sharing
SUPPORT AGENCY COOPERATIVE under a support agency Cooperative
AGREEMENTS Agreement are the same as the cost
sharing requirements of § 35.6105(b)(2) of
§ 35.6240 Eligibility for support agency this subpart. The State may use in-
Cooperative Agreements.
kind services as part of its cost share.
States, political subdivisions, and In- (See § 35.6815(b) for SSC payment re-
dian Tribes may apply for support quirements.)
agency Cooperative Agreements to en-
sure their meaningful and substantial FINANCIAL ADMINISTRATION REQUIRE-
involvement in response activities, as MENTS UNDER A COOPERATIVE AGREE-
specified in sections 104 and 121(f)(1) of MENT
CERCLA and the NCP. (See § 35.6800 (a)
§ 35.6270 Standards for financial man-
and (b).) agement systems.
§ 35.6245 Allowable activities. (a) Accounting system standards. (1)
General. The recipient’s system must
Support agency activities are those
track expenses by site, activity, and,
activities conducted by the recipient to
operable unit, as applicable, according
ensure its meaningful and substantial
to object class. The system must also
involvement. The activities described
provide control, accountability, and an
in section 121(f)(1) of CERCLA, as
assurance that funds, property, and
amended, and in subpart F of the NCP, other assets are used only for their au-
are eligible for funding under a support thorized purposes. The recipient must
agency Cooperative Agreement. allow an EPA review of the adequacy of
the financial management system as
§ 35.6250 Support agency Cooperative
Agreement requirements. described in 40 CFR 31.20(c).
(2) Allowable costs. The recipient’s
(a) Application requirements. The ap- systems must comply with the appro-
plicant must comply with the require- priate allowable cost principles de-
ments described in § 35.6105(a) (1), (4), scribed in 40 CFR 31.22.
(5) and (6), and other requirements as (3) Pre-remedial. The system need not
negotiated with EPA. (Indian Tribes track expenses by site. However, all
are exempt from the requirement of pre-remedial costs must be documented
Intergovernmental Review in part 29 of under a single Superfund account num-
this chapter.) An applicant may submit ber designated specifically for the
a non-site-specific budget for support preremedial activity.
agency activities, with the exception of (4) Core Program. Since all costs asso-
remedial action support agency activi- ciated with Core Program Cooperative
ties, which require cost share and must Agreements are non-site-specific, the
be applied for within a site-specific systems need not track expenses by
budget. All support agency activities site. However, all Core Program costs
are subject to the applicable sections must be documented under the Super-
of this subpart. fund account number(s) designated spe-
(b) Cooperative Agreement require- cifically for Core Program activity.
ments. The recipient must comply with (5) Support Agency. Unless otherwise
the requirements regarding financial specified in the Cooperative Agree-
administration (§§ 35.6270 through ment, all support agency costs, with
35.6290 of this subpart), property the exception of remedial action sup-
(§§ 35.6300 through 35.6450), procurement port agency costs, may be documented
(§§ 35.6550 through 35.6610), reporting under a single Superfund account num-
(§§ 35.6650 through 35.6670), records ber designated specifically for support
(§§ 35.6700 through 35.6710), and other agency activities. Remedial action sup-
administrative requirements under a port agency activities must be docu-
Cooperative Agreement (§§ 35.6750 mented site-specifically.
597
§ 35.6275 40 CFR Ch. I (7–1–00 Edition)
(6) Accounting system control proce- date the recipient signs the agreement,
dures. Except as provided for in para- if the costs are identified in the agree-
graph (a)(3) of this section, accounting ment and the recipient does not change
system control procedures must ensure the agreement.
that accounting information is:
(i) Accurate, charging only costs at- § 35.6280 Payments.
tributable to the site, activity, and op- (a) General. In addition to the fol-
erable unit, as applicable; and lowing requirements, the recipient
(ii) Complete, recording and charging must comply with the requirements re-
to individual sites, activities, and oper- garding payment described in 40 CFR
able units, as applicable, all costs at- 31.21 (f) through (h).
tributable to the recipient’s CERCLA
(1) Assignment of payment. The recipi-
effort.
ent cannot assign the right to receive
(7) Financial reporting. The recipient’s
payments under the recipient’s Cooper-
accounting system must use actual
ative Agreement. EPA will make pay-
costs as the basis for all reports of di-
ments only to the payee identified in
rect site charges. The recipient must
the Cooperative Agreement.
comply with the requirements for fi-
nancial reporting contained in § 35.6670 (2) Interest. If the recipient earns in-
of this subpart. terest on an advance of EPA funds, the
(b) Recordkeeping system standards. (1) recipient must return the interest un-
The recipient must maintain a record- less the recipient is a State or State
keeping system that enables site-spe- agency as defined under section 203 of
cific costs to be tracked by site, activ- the Intergovernmental Cooperation
ity, and operable unit, as applicable, Act of 1968, or a Tribal organization as
and provides sufficient documentation defined under section 102, 103, or 104 of
for cost recovery purposes. the Indian Self-Determination and
(2) The recipient must provide this Education Assistance Act of 1975 (Pub.
site-specific documentation to the EPA L. 93–638).
Regional Office within 30 working days (b) Payment method—(1) Letter of cred-
of a request, unless another time frame it. In order to receive payment by the
is specified in the Cooperative Agree- letter of credit method, the recipient
ment. must comply with the requirements re-
(3) In addition, the recipient must garding letter of credit described in 40
comply with the requirements regard- CFR 31.20 (b)(7) and 31.21(b). The recipi-
ing records described in §§ 35.6700, ent must identify and charge costs to
35.6705, and 35.6710 of this subpart. The specific sites, activities, and operable
recipient must comply with the re- units, as applicable, for drawdown pur-
quirements regarding source docu- poses as specified in the Cooperative
mentation described in 40 CFR Agreement.
31.20(b)(6). (2) Reimbursement. If the recipient is
(4) For pre-remedial and Core Pro- unable to meet letter of credit require-
gram activities, the recordkeeping sys- ments, EPA will pay the recipient by
tem must comply with the require- reimbursement. The recipient must
ments described in paragraphs (a)(3) comply with the requirements regard-
and (a)(4), respectively, of this section. ing reimbursement described in 40 CFR
31.21(d).
§ 35.6275 Period of availability of (3) Working capital advances. If the re-
funds. cipient is unable to meet the criteria
(a) The recipient must comply with for payment by either letter of credit
the requirements regarding the avail- or reimbursement, EPA may provide
ability of funds described in 40 CFR cash on a working capital advance
31.23. basis. Under this procedure EPA shall
(b) Except as permitted in § 35.6285, advance cash to the recipient to cover
the Award Official must sign the as- its estimated disbursement needs for
sistance agreement before costs are in- an initial period generally geared to
curred. The recipient may incur costs the recipient’s disbursing cycle. There-
between the date the Award Official after, EPA shall reimburse the recipi-
signs the assistance agreement and the ent for its actual cash disbursements.
598
In such cases, the recipient must com- that credit costs have not been pre-
ply with the requirements regarding viously reimbursed by the Federal Gov-
working capital advances described in ernment or any other party, and have
40 CFR 31.21(e). not been used for matching purposes
under any other Federal program or
§ 35.6285 Recipient payment of re- grant; and
sponse costs. (E) Documentation, if requested by
The recipient may pay for its share EPA, to ensure the actions undertaken
of response costs using cash, services, at the site are cost eligible and con-
credits or any combination of these, as sistent with CERCLA, as amended, and
follows: the NCP requirements. This require-
(a) Cash. The recipient may pay for ment does not apply for costs incurred
its share of response costs in the form before December 11, 1980.
of cash. (ii) Expenditures incurred after a site is
(b) Services. The recipient may pro- listed on the NPL. A State may receive
vide equipment and services to satisfy credit for remedial action expenditures
its cost share requirements under Co- after October 17, 1986, only if the State
operative Agreements. The recipient entered into a Cooperative Agreement
must comply with the requirements re- before incurring costs at the site.
garding in-kind and donated services (3) Use of credit. The State must first
described in 40 CFR 31.24. apply credit at the site at which it was
(c) Credit—(1) General credit require- earned. With the approval of EPA, the
ments. Credits are limited to State site- State may use excess credit earned at
specific expenses that EPA determines one site for its cost share at another
to be reasonable, documented, direct, site (See CERCLA section 104(c)(5)).
out-of-pocket expenditures of non-Fed- Credits must be applied on a site-spe-
eral funds for remedial action. Credits cific basis, and, therefore, may not be
are established on a site-specific basis. used to meet State cost-share require-
Only a State may claim credit. ments for Core Program Cooperative
(i) The State may claim credit for re- Agreements. EPA will not reimburse
sponse activity obligations or expendi- excess credit.
tures incurred by the State or political (4) Credit verification. Credits are sub-
subdivision between January 1, 1978 ject to verification by audit and tech-
and December 11, 1980. nical review of actions performed at
(ii) The State may claim credit for sites.
remedial action expenditures incurred (d) Over match. The recipient may not
by the State after October 17, 1986. use contributions in excess of the re-
(iii) The State may not claim credit quired cost-share at one site to meet
for removal actions taken after Decem- the cost-share obligation at another
ber 11, 1980. site or the Core Program cost-share ob-
(2) Credit submission requirements. (i) ligation. Overmatch is not ‘‘credit’’
Expenditures incurred before a site is list- pursuant to § 35.6285(c)(3).
ed on the NPL. Although EPA may re- (e) Cost sharing. The recipient must
quire additional documentation, the comply with the requirements regard-
State must submit the following before ing cost sharing described in 40 CFR
EPA will approve the use of the credit: 31.24. Finally, the recipient cannot use
(A) Specific amounts claimed for costs incurred under the Core Program
credit, by site (estimated amounts are to offset cost-share requirements at a
unacceptable), based on supporting site.
cost documentation; (f) Advance match. (1) A Cooperative
(B) Units of government (State agen- Agreement for a site-specific response
cy, county, local) that incurred the entered into after October 17, 1986 can-
costs, by site; not authorize a State to contribute
(C) Description of the specific func- funds during remedial planning and
tion performed by each unit of govern- then apply those contributions to the
ment at each site; remedial action cost share (advance
(D) Certification (signed by the match).
State’s fiscal manager or the financial (2) A State may seek reimbursement
director for each unit of government) for costs incurred under Cooperative
599
§ 35.6290 40 CFR Ch. I (7–1–00 Edition)
Agreements which authorize advance part. Supplies obtained with Core Pro-
match. gram funds must be for non-site-spe-
(3) Reimbursements are subject to cific purposes. All purchases of supplies
the availability of appropriated funds. under the Core Program must comply
(4) If the State does not seek reim- with the requirements in the above
bursement, EPA will apply the advance listed sections, except where these re-
match to off-set the State’s required quirements are site-specific.
cost share for remedial action at the
site. The State may not use advance § 35.6310 Obtaining equipment.
match for credit at any other site, nor To obtain equipment, the recipient
may the State receive reimbursement must agree to comply with the require-
until the conclusion of CERCLA-funded ments in § 35.6300 and §§ 35.6315 through
remedial response activities. Also, the 35.6350 of this subpart.
State may not use advance match for
credit against cost-share obligations § 35.6315 Alternative methods for ob-
for Core Program Cooperative Agree- taining property.
ments.
(5) Claims for advance match are sub- (a) Purchase equipment with recipient
ject to verification by audit. funds. The recipient may purchase
equipment with the recipient’s own
[55 FR 23007, June 5, 1990, as amended at 55 funds and may charge EPA a fee for
FR 24343, June 15, 1990] using equipment on a CERCLA-funded
§ 35.6290 Program income. project. The fee must be based on a
usage rate, subject to the usage rate
The recipient must comply with the requirements in § 35.6320 of this sub-
requirements regarding program in- part.
come described in 40 CFR part 31.25. (b) Borrow federally owned property.
PERSONAL PROPERTY REQUIREMENTS The recipient may borrow federally
UNDER A COOPERATIVE AGREEMENT owned property, with the exception of
motor vehicles, for use on CERCLA-
§ 35.6300 General personal property funded projects. The loan of the feder-
acquisition and use requirements. ally owned property may only extend
(a) General. (1) Property may be ac- through the project period. At the end
quired only when authorized in the Co- of the project period, or when the fed-
operative Agreement. erally owned property is no longer
(2) The recipient must acquire the needed for the project, the recipient
property during the approved project must return the property to the Fed-
period. eral Government.
(3) The recipient must: (c) Lease, use contractor services, or
(i) Charge property costs by site, ac- purchase with CERCLA funds. To ac-
tivity, and operable unit, as applicable; quire equipment through lease, use of
(ii) Document the use of the property contractor services, or purchase with
by site, activity, and. operable unit, as CERCLA funds, the recipient must con-
applicable; and duct and document a cost comparison
(iii) Solicit and follow EPA’s instruc- analysis to determine which of these
tions on the disposal of any property methods of obtaining equipment is the
purchased with CERCLA funds as spec- most cost effective. In order to obtain
ified in § 35.6340 and § 35.6345 of this sub- the equipment, the recipient must sub-
part. mit documentation of the cost com-
(b) Exception. The recipient is not re- parison analysis to EPA for approval.
quired to charge property costs by site The recipient must obtain the equip-
under a pre-remedial or Core Program ment through the most cost effective
Cooperative Agreement. method, subject to the requirements
listed below:
§ 35.6305 Obtaining supplies. (1) Lease or rent equipment. If it is the
To obtain supplies, the recipient most cost effective method of acquisi-
must agree to comply with the require- tion, the recipient may lease or rent
ments in §§ 35.6300, 35.6315(b), 35.6325 equipment, subject only to the require-
through 35.6340, and 35.6350 of this sub- ments in § 35.6300 of this subpart.
600
(2) Use contractor services. (i) If it is EPA. The EPA-approved usage rate
the most cost effective method of ac- must be included in the Cooperative
quisition, the recipient may hire the Agreement before the recipient incurs
services of a contractor. these equipment costs.
(ii) The recipient must obtain award (b) Usage rate application. The recipi-
official approval before authorizing the ent must record the use of the equip-
contractor to purchase equipment with ment by site, activity, and operable
CERCLA funds. (See § 35.6325 of this unit, as applicable, and must apply the
subpart regarding the title and vested usage rate to calculate equipment
interest of equipment purchased with
charges by site, activity, and operable
CERCLA funds.) This does not apply
unit, as applicable. For Core Program
for recipients who have used the sealed
and pre-remedial activities, the recipi-
bids method of procurement.
(iii) The recipient must require the ent is not required to apply a usage
contractor to allocate the cost of the rate.
contractor services by site, activity,
§ 35.6325 Title and EPA interest in
and operable unit, as applicable.
CERCLA-funded property.
(3) Purchase equipment with CERCLA
funds. If equipment purchase is the (a) EPA’s interest in CERCLA-funded
most cost-effective method of obtain- property. EPA has an interest (the per-
ing the equipment, the recipient may centage of EPA’s participation in the
purchase the equipment with CERCLA total award) in both equipment and
funds. To purchase equipment with supplies purchased with CERCLA
CERCLA funds, the recipient must funds.
comply with the following require- (b) Title in CERCLA-funded property.
ments: Title in both equipment and supplies
(i) The recipient must include in the purchased with CERCLA funds vests in
Cooperative Agreement application a the recipient.
list of all items of equipment to be pur- (1) Right to transfer title. EPA retains
chased with CERCLA funds, with the
the right to transfer title of all prop-
price of each item.
erty purchased with CERCLA funds to
(ii) If the equipment is to be used on
sites, the recipient must allocate the the Federal Government or a third
cost of the equipment by site, activity, party within 120 calendar days after
and operable unit, as applicable, by ap- project completion or at the time of
plying a usage rate subject to the disposal.
usage rate requirements in § 35.6320 of (2) Equipment used as all or part of the
this subpart. remedy. The following requirements
(iii) The recipient may not use apply to equipment used as all or part
CERCLA funds to purchase a trans- of the remedy:
portable or mobile treatment system. (i) Fixed in-place equipment. EPA no
(iv) Equipment obtained with Core longer has an interest in fixed in-place
Program funds must be for non-site- equipment once the equipment is in-
specific purposes. All purchases of stalled.
equipment must comply with the re- (ii) Equipment that is an integral part
quirements in § 35.6300, and §§ 35.6310 of services to individuals. EPA no longer
through 35.6350 of this subpart, except has an interest in equipment that is an
where these requirements are site-spe- integral part of services to individuals,
cific. such as pipes, lines, or pumps providing
§ 35.6320 Usage rate. hookups for homeowners on an existing
water distribution system, once EPA
(a) Usage rate approval. To charge
certifies that the remedy is operational
EPA a fee for use of equipment pur-
and functional.
chased with recipient funds or to allo-
cate the cost of equipment by site, ac- § 35.6330 Title to federally owned
tivity, and operable unit, as applicable, property.
the recipient must apply a usage rate.
The recipient must submit documenta- Title to all federally owned property
tion of the usage rate computation to vests in the Federal Government.
601
§ 35.6335 40 CFR Ch. I (7–1–00 Edition)
§ 35.6335 Property management stand- § 35.6340 Disposal of CERCLA-funded

ards. property.
The recipient must comply with the (a) Equipment. For equipment which
following property management stand- is no longer needed, or at the end of the
ards for property purchased with project period, whichever is earlier, the
CERCLA funds. The recipient may use recipient must:
its own property management system (1) Analyze two alternatives: the cost
if it meets the following standards. of leaving the equipment in place, and
(a) Control. The recipient must main- the cost of removing the equipment
tain: and disposing of it in another manner;
(1) Property records for CERCLA-fund- (2) Document the analysis of the two
ed property which include the contents alternatives in the inventory report.
specified in § 35.6700(c) of this subpart; See § 35.6660 of this subpart regarding
(2) A control system which ensures requirements for the inventory report.
adequate safeguards for prevention of (i) If it is most cost-effective to re-
loss, damage, or theft of the property. move the equipment and dispose of it
The recipient must make provisions for in another manner:
the thorough investigation and docu-
(A) If the equipment has a residual
mentation of any loss, damage, or
fair market value of $5,000 or more, the
theft;
recipient must request disposition in-
(3) Procedures to ensure maintenance
structions from EPA in the inventory
of the property in good condition and
report. See § 35.6345 of this subpart for
periodic calibration of the instruments
equipment disposal options.
used for precision measurements;
(4) Sales procedures to ensure the (B) If the equipment has a residual
highest possible return, if the recipient fair market value of less than $5,000,
is authorized to sell the property; the recipient may retain the equipment
(5) Provisions for financial control and for the recipient’s use on another
accounting in the financial manage- CERCLA site. If, however, there is any
ment system of all equipment; and remaining residual value at the time of
final disposition, the recipient must re-
(6) Identification of all federally
owned property. imburse the Hazardous Substance
Superfund for EPA’s vested interest in
(b) Inventory and reporting for
the current fair market value of the
CERCLA-funded equipment.
equipment at the time of disposition.
(1) Physical inventory. The recipient
must conduct a physical inventory at (ii) If it is most cost-effective to
least once every two years for all leave the equipment in place, rec-
equipment except that which is part of ommend in the inventory report that
the in-place remedy. The recipient the equipment be left in place.
must reconcile physical inventory re- (3) Submit the inventory report to
sults with the equipment records. EPA, even if EPA has stopped sup-
(2) Inventory reports. The recipient porting the project.
must comply with requirements for in- (b) Supplies. (1) If supplies have an ag-
ventory reports set forth in § 35.6660 of gregate fair market value of $5,000 or
this subpart. more at the end of the project period,
(c) Inventory and reporting for feder- the recipient must take one of the fol-
ally owned property. lowing actions at the direction of EPA:
(1) Physical inventory. The recipient (i) Use the supplies on another
must conduct a physical inventory: CERCLA project and reimburse the
(i) Annually; original project for the fair market
(ii) When the property is no longer value of the supplies;
needed; and (ii) If both the recipient and EPA
(iii) Within 90 days after the end of concur, keep the supplies and reim-
the project period. burse the Hazardous Substance Super-
(2) Inventory reports. The recipient fund for EPA’s interest in the current
must comply with requirements for in- fair market value of the supplies; or
ventory reports in § 35.6660 of this sub- (iii) Sell the supplies and reimburse
part. the Hazardous Substance Superfund for
602
EPA’s interest in the current fair mar- property must agree to hold the nec-
ket value of the supplies, less any rea- essary property interest.
sonable selling expenses. (2) If it is necessary for the Federal
(2) If the supplies remaining at the Government to acquire the interest in
end of the project period have an aggre- real estate to permit conduct of a re-
gate fair market value of less than medial action, the acquisition may be
$5,000, the recipient may keep the sup- made only if the State, or Indian Tribe
plies to use on another CERCLA to the extent of its legal authority,
project. If the recipient cannot use the provides assurance that it will accept
supplies on another CERCLA project, transfer of the acquired interest in ac-
then the recipient may keep or sell the cordance with 40 CFR 300.510(f). States
supplies without reimbursing the Haz- and Indian Tribes must follow the re-
ardous Substance Superfund. quirements in §§ 35.6105(b)(5) and
35.6110(b)(2) respectively, of this sub-
§ 35.6345 Equipment disposal options. part.
The following disposal options are (b) The recipient must comply with
available: applicable Federal regulations for real
(a) Use the equipment on another property acquisition under assistance
CERCLA project and reimburse the agreements contained in part 4 of this
original project for the fair market chapter, ‘‘Uniform Relocation Assist-
value of the equipment; ance and Real Property Acquisition for
(b) If both the recipient and EPA con- Federal and Federally-Assisted Pro-
cur, keep the equipment and reimburse grams.’’
the Hazardous Substance Superfund,
for EPA’s interest in the current fair
FR 35854, July 14, 1994]
market value of the equipment;
(c) Sell the equipment and reimburse § 35.6405 Use.
the Hazardous Substance Superfund for
EPA’s interest in the current fair mar- The recipient must comply with the
ket value of the equipment, less any requirements regarding real property
reasonable selling expenses; or described in 40 CFR 31.31.
(d) Return the equipment to EPA
COPYRIGHT REQUIREMENTS UNDER A
and, if applicable, EPA will reimburse
the recipient for the recipient’s propor-
tionate share in the current fair mar- § 35.6450 General requirements.
ket value of the equipment.
The recipient must comply with the
§ 35.6350 Disposal of federally owned requirements regarding copyrights de-
property. scribed in 40 CFR 31.34. The recipient
When federally owned property is no must comply with the requirements re-
longer needed, or at the end of the garding contract copyright provisions
project, the recipient must inform EPA described in § 35.6595(b)(3) of this sub-
that the property is available for re- part.
turn to the Federal Government. EPA
will send disposition instructions to USE OF RECIPIENT EMPLOYEES (‘‘FORCE
the recipient. ACCOUNT’’) UNDER A COOPERATIVE
AGREEMENT
REAL PROPERTY REQUIREMENTS UNDER
A COOPERATIVE AGREEMENT § 35.6500 General requirements.
(a) Force Account work is the use of
§ 35.6400 Acquisition and transfer of the recipient’s own employees or equip-
interest. ment for construction, construction-re-
(a) An interest in real property may lated activities (including architecture
be acquired only with prior approval of and engineering services), or repair or
EPA. improvement to a facility. When using
(1) If the recipient acquires real prop- Force Account work, the recipient
erty in order to conduct the response, must demonstrate that the employees
the recipient with jurisdiction over the can complete the work as competently
603
§ 35.6550 40 CFR Ch. I (7–1–00 Edition)
as, and more economically than, con- (iv) 40 CFR 31.36(g)(2)(iv), ‘‘Awarding
tractors, or that an emergency neces- Agency Review,’’ regarding the review
sitates the use of the Force Account. of proposed awards over $25,000 which
(b) Where the value of Force Account are to be awarded to other than the ap-
services exceeds $25,000, the recipient parent low bidder under a sealed bid
must receive written authorization for procurement.
use from the award official. (3) Noncertified procurement system. If
the applicant or recipient has not cer-
PROCUREMENT REQUIREMENTS UNDER A tified that its procurement system
COOPERATIVE AGREEMENT meets the intent of the requirements of
this subpart, then the recipient must
§ 35.6550 Procurement system stand-
ards. follow the requirements of this subpart
and allow EPA preaward review of pro-
(a) Recipient standards—(1) Procure- posed procurement actions that will
ment system evaluation. (i) An applicant use EPA funds. In addition, the recipi-
or recipient must evaluate its own pro- ent’s contractors and subcontractors
curement system to determine if the must submit their cost or price data on
system meets the intent of the require- EPA Form 5700–41, ‘‘Cost or Price Sum-
ments of this subpart. After evaluating mary Format for Subagreements Under
its procurement system, the applicant U.S. EPA Grants,’’ or in another for-
or recipient must complete the ‘‘Pro- mat which provides information simi-
curement System Certification’’ (EPA lar to that required by EPA Form 5700–
Form 5700–48) and submit the form to 41. This specific requirement is an addi-
EPA with its application. tion to the requirements regarding cost
(ii) The certification will be valid for and price analysis described in § 35.6585
two years or for the length of the of this subpart.
project period specified in the Coopera-
(4) EPA review. EPA reserves the
tive Agreement, whichever is greater,
right to review any recipient’s procure-
unless the recipient substantially re-
ment system or procurement action
vises its procurement system or the
under a Cooperative Agreement.
award official determines that the re-
cipient is not following the intent of (5) Code of conduct. The recipient
the requirements in this part. (See sub- must comply with the requirements of
paragraph (a)(4) of this section regard- 40 CFR 31.36(b)(3), which describes
ing EPA right to review.) If the recipi- standards of conduct for employees, of-
ent substantially revises its procure- ficers, and agents of the recipient.
ment system, the recipient must re- (6) Completion of contractual and ad-
evaluate its system and submit a re- ministrative issues. (i) The recipient is
vised EPA Form 5700–48. responsible for the settlement and sat-
(2) Certified procurement system. Even isfactory completion in accordance
if the applicant or recipient has cer- with sound business judgement and
tified that its procurement system good administrative practice of all con-
meets the intent of the requirements of tractual and administrative issues aris-
this subpart, the EPA award official re- ing out of procurements under the Co-
tains the authority as stated in: operative Agreement.
(i) Section 35.6565(d)(1)(iii), ‘‘Non- (ii) EPA will not substitute its judge-
competitive proposals,’’ regarding ment for that of the recipient unless
award official authorization of non- the matter is primarily a Federal con-
competitive proposals; cern.
(ii) Section 35.6565(b), ‘‘Sealed bids (iii) Violations of law will be referred
(formal advertising),’’ regarding award to the local, State, Tribal, or Federal
official approval for the use of a pro- authority having proper jurisdiction.
curement method other than sealed (7) Selection procedures. The recipient
bidding for a remedial action award must have written selection procedures
contract, except for Architectural/En- for procurement transactions.
gineering services and post-removal (i) EPA may not participate in a re-
site control; cipient’s selection panel except to pro-
(iii) Section 35.6550(a)(9), ‘‘Protests,’’ vide technical assistance. EPA staff
regarding EPA review of protests; and providing such technical assistance:
604
(A) Shall constitute a minority of the sponsible Party relationships. The recipi-
selection panel (limited to making recent must require each prospective con-
ommendations on qualified offers and tractor to provide with its bid or pro-
acceptable proposals based on pub- posal:
lished evaluation criteria) for the con- (i) Information on its financial and
tractor selection process; and business relationship with all PRPs at
(B) Are not permitted to participate the site and with the contractor’s par-
in the negotiation and award of con- ent companies, subsidiaries, affiliates,
tracts. subcontractors, or current clients at
(ii) When selecting a contractor, re- the site. Prospective contractors under
cipients: a Core Program Cooperative Agree-
(A) May not use EPA contractors to ment must provide comparable infor-
provide any support related to pro- mation for all sites within the recipi-
curing a State contractor. ent’s jurisdiction. (This disclosure re-
(B) May use the Corps of Engineers quirement encompasses past financial
for review of State bidding documents, and business relationships, including
requests for proposals and bids and pro- services related to any proposed or
posals received. pending litigation, with such parties);
(8) Award. The recipient may award a (ii) Certification that, to the best of
contract only to a responsible con- its knowledge and belief, it has dis-
tractor, as described in 40 CFR closed such information or no such in-
31.36(b)(8), and must ensure that each formation exists; and
contractor performs in accordance with
(iii) A statement that it shall dis-
all the provisions of the contract. (See
close immediately any such informa-
also 35.6560 of this subpart regarding
tion discovered after submission of its
debarred and suspended contracts.)
bid or proposal or after award. The re-
(9) Protest procedures. The recipient
cipient shall evaluate such information
must comply with the requirements de-
and if a member of the contract team
scribed in 40 CFR 31.36(b)(12) regarding
has a conflict of interest which pre-
protest procedures.
vents the team from serving the best
(10) Reporting. The recipient must
comply with the requirements for pro- interests of the recipient, the prospec-
curement reporting contained in tive contractor may be declared non-
§ 35.6665 of this subpart. responsible and the contract awarded
(11) Intergovernmental agreements. (i) to the next eligible bidder or offeror.
To foster greater economy and effi- (2) Conflict of interest—(i) Conflict of
ciency, recipients are encouraged to interest notification. The recipient must
enter into intergovernmental agree- require the contractor to notify the re-
ments for procurement or use of com- cipient of any actual, apparent, or po-
mon goods and services. tential conflict of interest regarding
(ii) Although intergovernmental any individual working on a contract
agreements are not subject to the reassignment or having access to infor-
quirements set forth at §§ 35.6550 mation regarding the contract. This
through 35.6610, all procurements under notification shall include both organi-
intergovernmental agreements are sub- zational conflicts of interest and per-
ject to these requirements except for sonal conflicts of interest. If a personal
procurements that are: conflict of interest exists, the indi-
(A) Incidental to the purpose of the vidual who is affected shall be disquali-
assistance agreement; and fied from taking part in any way in the
(B) Made through a central public performance of the assigned work that
procurement unit. created the conflict of interest situa-
(12) Value engineering. The recipient tion.
is encouraged to include value engi- (ii) Contract provisions. The recipient
neering clauses in contracts for con- must incorporate the following provi-
struction projects of sufficient size to sions or their equivalents into all con-
offer reasonable opportunities for cost tracts, except those for well-drilling,
reductions. fence erecting, plumbing, utility hook-
(b) Contractor standards—(1) Disclosure ups, security guard services, or elec-
requirements regarding Potentially Re- trical services:
605
§ 35.6555 40 CFR Ch. I (7–1–00 Edition)
(A) Contractor data. The contractor product to be offered and describing

shall not provide data generated or the performance of other relevant re-
otherwise obtained in the performance quirements of the procurement; and
of contractor responsibilities under a (7) Any arbitrary action in the pro-
contract to any party other than the curement process.
recipient, EPA, or its authorized (b) Geographic and Indian Tribe pref-
agents for the life of the contract, and erences—(1) Geographic. When con-
for a period of five years after comple- ducting a procurement, the recipient
tion of the contract. must prohibit the use of statutorily or
(B) Employment. The contractor shall administratively imposed in-State or
not accept employment from any party local geographical preferences in evalu-
other than the recipient or Federal ating bids or proposals. However, noth-
agencies for work directly related to ing in this section preempts State li-
the site(s) covered under the contract censing laws. In addition, when con-
for five years after the contract has tracting for architectural and engi-
terminated. The recipient agency may neering (A/E) services, the recipient
exempt the contractor from this re- may use geographic location as a selec-
quirement through a written release. tion criterion, provided that when geo-
This release must include EPA concur- graphic location is used, its application
rence. leaves an appropriate number of quali-
(3) Certification of independent price fied firms, given the nature and size of
determination. The recipient must re- the project, to compete for the con-
quire that each contractor include in tract.
its bid or proposal a certification of (2) Indian Tribe. If the project bene-
independent price determination. This fits Indians, the recipient must comply
document certifies that no collusion, with the Indian Self-Determination
as defined by Federal and State anti- and Education Assistance Act of 1975
trust laws, occurred during bid prepa- (Pub. L. 93–638).
ration.
(c) Written specifications. The recipi-
(4) Recipient’s Contractors. The recipi-
ent’s written specifications must in-
ent must require its contractor to com-
clude a clear and accurate description
ply with the requirements in
of the technical requirements and the
§§ 35.6270(a) (1) and (2); 35.6320 (a) and
qualitative nature of the material,
(b); 35.6335; 35.6700; and 35.6705. For ad-
product or service to be procured.
ditional contractor requirements, see
also §§ 35.6710(c); 35.6590(c); and 35.6610. (1) This description must not contain
features which unduly restrict com-
§ 35.6555 Competition. petition, unless the features are nec-
essary to:
The recipient must conduct all pro-
curement transactions in a manner (i) Test or demonstrate a specific
providing maximum full and open com- thing;
petition. (ii) Provide for necessary inter-
(a) Restrictions on competition. Inap- changeability of parts and equipment;
propriate restrictions on competition or
include the following: (iii) Promote innovative tech-
(1) Placing unreasonable require- nologies.
ments on firms in order for them to (2) The recipient must avoid the use
qualify to do business; of detailed product specifications if at
(2) Requiring unnecessary experience all possible.
and excessive bonding requirements; (d) Public notice. When soliciting bids
(3) Noncompetitive pricing practices or proposals, the recipient must allow
between firms or between affiliated sufficient time (generally 30 calendar
companies; days) between public notice of the pro-
(4) Noncompetitive awards to con- posed project and the deadline for re-
sultants that are on retainer contracts; ceipt of bids or proposals. The recipient
(5) Organizational conflicts of inter- must publish the public notice in pro-
est; fessional journals, newspapers, or pub-
(6) Specifying only a ‘‘brand name’’ lications of general circulation over a
product, instead of allowing ‘‘an equal’’ reasonable area.
606
(e) Prequalified lists. Recipients may (1) In order for the recipient to use
use prequalified lists of persons, firms, the sealed bid method, the following
or products to acquire goods and serv- conditions must be met:
ices. The list must be current and in- (i) A complete, adequate, and real-
clude enough qualified sources to en- istic specification or purchase descrip-
sure maximum open and free competition is available;
tion. Recipients must not preclude po- (ii) Two or more responsible bidders
tential bidders from qualifying during are willing and able to compete effec-
the solicitation period. tively for the business; and
(iii) The procurement lends itself to a
§ 35.6560 Master list of debarred, sus- fixed-price contract and the selection
pended, and voluntarily excluded of the successful bidder can be made
persons. principally on the basis of price.
While evaluating bids or proposals, (2) If the recipient uses the sealed bid
the recipient must consult the most method, the recipient must comply
with the following requirements:
current ‘‘List of Parties Excluded from
(i) Publicly advertise the invitation
Federal Procurement or Non-procure-
for bids and solicit bids from an ade-
ment Programs’’ to ensure that the
quate number of known suppliers, pro-
firms submitting proposals are not providing them sufficient time prior to
hibited from participation in assist- the date set for opening the bids;
ance programs. The recipient must (ii) The invitation for bids, which
comply with the requirements regard- must include any specifications and
ing subawards to debarred and sus- pertinent attachments, must define the
pended parties described in 40 CFR items or services in order for the bidder
31.35. to properly respond;
(iii) Publicly open all bids at the
§ 35.6565 Procurement methods. time and place prescribed in the invita-
The recipient must comply with the tion for bids;
requirements for payment to consult- (iv) Award the fixed-price contract in
ants described in 40 CFR 31.36(j). In ad- writing to the lowest responsive and
dition, the recipient must comply with responsible bidder. Where specified in
the following requirements: bidding documents, the recipient shall
(a) Small purchase procedures. Small consider factors such as discounts,
purchase procedures are those rel- transportation cost, and life cycle
atively simple and informal procure- costs in determining which bid is low-
ment methods for securing services, est. The recipient may only use pay-
supplies, or other property that do not ment discounts to determine the low
bid when prior experience indicates
cost more than $25,000 in the aggregate.
that such discounts are usually taken
If small purchase procurements are
advantage of; and
used, the recipient must obtain and
(v) If there is a sound documented
document price or rate quotations from
reason, the recipient may reject any or
an adequate number of qualified all bids.
sources. (c) Competitive proposals. The tech-
(b) Sealed bids (formal advertising). nique of competitive proposals is nor-
(For a remedial action award contract, mally conducted with more than one
except for Architectural/Engineering source submitting an offer, and either
services and post-removal site control, a fixed-price or cost-reimbursement
the recipient must obtain the award of- type contract is awarded. It is gen-
ficial’s approval to use a procurement erally used when conditions are not ap-
method other than the sealed bid meth- propriate for the use of sealed bids. If
od.) Bids are publicly solicited and a the recipient uses the competitive pro-
fixed-price contract (lump sum or unit posal method, the following require-
price) is awarded to the responsible ments apply:
bidder whose bid, conforming with all (1) Recipients must publicize requests
the material terms and conditions of for proposals and all evaluation factors
the invitation for bids, is the lowest in and must identify their relative impor-
price. tance. The recipient must honor any
607
§ 35.6570 40 CFR Ch. I (7–1–00 Edition)
response to publicized requests for pro- § 35.6570 Use of the same engineer
posals to the maximum extent prac- during subsequent phases of re-
tical; sponse.
(2) Recipients must solicit proposals (a) If the public notice clearly stated
from an adequate number of qualified the possibility that the firm or indi-
sources; vidual selected could be awarded a con-
(3) Recipients must have a method tract for follow-on services and initial
for conducting technical evaluations of procurement complied with the pro-
the proposals received and for selecting curement requirements of this subpart,
awardees; the recipient of a CERCLA remedial re-
(4) Recipients must award the con- sponse Cooperative Agreement may use
tract to the responsible firm whose the engineer procured to conduct any
proposal is most advantageous to the or all of the follow-on engineering ac-
program, with price and other factors tivities without going through the pub-
considered; and lic notice and evaluation procedures.
(b) The recipient may also use the
(5) Recipients may use competitive
same engineer during subsequent
proposal procedures for qualifications- phases of the project in the following
based procurement of architectural/en- cases:
gineering (A/E) professional services (1) Where the recipient conducted the
whereby competitor’s qualifications RI, FS, or design activities without
are evaluated and the most qualified EPA assistance but is using CERCLA
competitor. is selected, subject to ne- funds for follow-on activities, the re-
gotiation of fair and reasonable com- cipient may use the engineer for subse-
pensation. This method, where price is quent work provided the recipient cer-
not used as a selection factor, may tifies:
only be used in the procurement of A/ (i) That it complied with the procure-
E professional services. The recipient ment requirements in § 35.6565 of this
may not use this method to purchase subpart when it selected the engineer
other types of services even though A/ and the code of conduct requirements
E firms are a potential source to per- described in 40 CFR 31.36(b)(3).
form the proposed effort. (ii) That any CERCLA-funded con-
(d) Noncompetitive proposals. (1) The tract between the engineer and the re-
recipient may procure by noncompeti- cipient meets all of the other provi-
tive proposals only when the award of sions as described in the procurement
a contract is infeasible under small requirements in this subpart.
purchase procedures, sealed bids or (2) Where EPA conducted the RI, FS,
competitive proposals, and one of the or design activities but the recipient
following circumstances applies: will assume the responsibility for sub-
(i) The item is available only from a sequent phases of response under a Co-
single source; operative Agreement, the recipient
(ii) The public exigency or emergency may use, with the award official’s ap-
for the requirement will not permit a proval, EPA’s engineer contractor
delay resulting from competitive solic- without further public notice or eval-
itation (a declaration of an emergency uation provided the recipient follows
the rest of the procurement require-
under State law does not necessarily
ments of this subpart to award the con-
constitute an emergency under the
tract.
EPA Superfund program’s criteria);
(iii) The award official authorized § 35.6575 Restrictions on types of con-
noncompetitive proposals; or tracts.
(iv) After solicitation of a number of (a) Prohibited contracts. The recipi-
sources, competition is determined to ent’s procurement system must not
be inadequate. allow cost-plus-percentage-of-cost (e.g.,
(2) When using noncompetitive pro- a multiplier which includes profit) or
curement, the recipient must conduct a percentage-of-construction-cost types
cost analysis in accordance with the of contracts.
requirements described in § 35.6585 of (b) Removal. Under a removal Cooper-
this subpart. ative Agreement, the recipient must
608
award a fixed price contract (lump recipient must not award any con-
sum, unit price, or a combination of tracts under the Cooperative Agree-
the two) when procuring contractor ment until the recipient has negotiated
support, regardless of the procurement a fair share objective with EPA.
method selected, unless the recipient
obtains the award official’s prior writ- § 35.6585 Cost and price analysis.
ten approval. (a) General. The recipient must con-
(c) Time and material contracts. The duct and document a cost or price anal-
recipient may use time and material ysis in connection with every procure-
contracts only if no other type of con- ment action including contract modi-
tract is suitable, and if the contract in- fication.
cludes a ceiling price that the con- (1) Cost analysis. The recipient must
tractor exceeds at its own risk. conduct and document a cost analysis
for all negotiated contracts over $25,000
§ 35.6580 Contracting with minority and for all change orders regardless of
and women’s business enterprises price. A cost analysis is not required
(MBE/WBE), small businesses, and when adequate price competition exists
labor surplus area firms.
and the recipient can establish price
(a) Procedures. The recipient must reasonableness. The recipient must
comply with the six steps described in base its determination of price reason-
40 CFR 31.36(e)(2) to ensure that MBEs, ableness on a catalog or market price
WBEs, and small businesses are used of a commercial product sold in sub-
whenever possible as sources of sup- stantial quantities to the general pub-
plies, construction, and services. Tasks lic, or on prices set by law or regula-
to encourage small, minority, and tion.
women’s business utilization in the (2) Price analysis. In all instances
Superfund program are eligible for other than those described in (a)(1) of
funding under Core Program Coopera- this section, the recipient must per-
tive Agreements. form a price analysis to determine the
(b) Labor surplus firms. EPA encour- reasonableness of the proposed con-
ages recipients to procure supplies and tract price.
services from labor surplus area firms. (b) Profit analysis. For each contract
(c) ‘‘Fair share’’ objectives. It is EPA’s in which there is no price competition
policy that recipients award a fair and in all cases in which cost analysis
share of contracts to small, minority is performed, the recipient must nego-
and women’s businesses. The policy re- tiate profit as a separate element of
quires that fair share objectives for mi- the price. To establish a fair and rea-
nority and women-owned business en- sonable profit, consideration will be
terprises be negotiated with the States given to the complexity of the work to
and/or recipients, but does not require be performed, the risk borne by the
fair share objectives be established for contractor, the contractor’s invest-
small businesses. ment, the amount of subcontracting,
(1) Each recipient must establish an the quality of its record of past per-
annual ‘‘fair share’’ objective for MBE formance, and industry profit rates in
and WBE use. A recipient is not re- the surrounding geographical area for
quired to attain a particular statistical similar work.
level of participation by race, eth-
nicity, or gender of the contractor’s § 35.6590 Bonding and insurance.
owners or managers. (a) General. The recipient must meet
(2) If the recipient is awarded more the requirements regarding bonding de-
than one Cooperative Agreement dur- scribed in 40 CFR 31.36(h). The recipi-
ing the year, the recipient may nego- ent must clearly and accurately state
tiate an annual fair share for all Coop- in the contract documents the bonds
erative Agreements for that year. It is and insurance requirements, including
not necessary to have a fair share for the amounts of security coverage that
each Cooperative Agreement. When a a bidder or offeror must provide.
Cooperative Agreement is awarded to a (b) Indemnification. When adequate
recipient with which a ‘‘fair share’’ pollution liability insurance is not
agreement has not been negotiated, the available to the contractor, EPA may
609
§ 35.6595 40 CFR Ch. I (7–1–00 Edition)
indemnify response contractors for li- rights to data contained in 40 CFR

ability related to damage from releases 31.34.
arising out of the contractor’s neg- (4) Labor standards. The recipient
ligent performance. The recipient must must include a copy of EPA Form 5720–
comply with the requirements regard- 4 (‘‘Labor Standards Provisions for
ing indemnification described in sec- Federally Assisted Construction Con-
tion 119 of CERCLA. tracts’’) in each contract for construc-
(c) Accidents and catastrophic loss. The tion (as defined by the Secretary of
recipient must require the contractor Labor in 29 CFR part 5). The form con-
to provide insurance against accidents tains the Davis-Bacon Act require-
and catastrophic loss to manage any ments (40 U.S.C. 276a–276a–7), the
risk inherent in completing the Copeland Regulations (29 CFR part 3),
project. the Contract Work Hours and Safety
Standards Act Overtime Compensation
§ 35.6595 Contract provisions. (940 U.S.C. 327–333), and the non-
(a) General. Each contract must be a discrimination provisions in Executive
sound and complete agreement, and in- Order 11246, as amended.
clude the following provisions: (5) Conflict of interest. The recipient
(1) Nature, scope, and extent of work must include provisions pertaining to
to be performed; conflict of interest as described in
(2) Time frame for performance; § 35.6550(b)(2)(ii) of this subpart.
(3) Total cost of the contract; and (c) Model clauses. The recipient must
(4) Payment provisions. comply with the requirements regard-
ing model contract clauses described in
(b) Other contract provisions. Recipi-
40 CFR 33.1030 (1987).
ents’ contracts must include the fol-
lowing provisions: § 35.6600 Contractor claims.
(1) Energy efficiency. A contract must
comply with mandatory standards and (a) General. The recipient must con-
policies on energy efficiency contained duct an administrative and technical
in the State’s energy conservation plan review of each claim before EPA will
which is issued in compliance with the consider funding these costs.
Energy Policy and Conservation Act (b) Claims settlement. The recipient
(Pub. L. 94–163). may incur costs (including legal, tech-
(2) Violating facilities. Contracts in ex- nical and administrative) to assess the
cess of $100,000 must contain a provi- merits of or to negotiate the settle-
sion which requires contractor compli- ment of a claim by or against the re-
ance with all applicable standards, or- cipient under a contract, provided:
ders or requirements issued under sec- (1) The claim arises from work within
tion 306 of the Clean Air Act (42 U.S.C. the scope of the Cooperative Agree-
1857(h)), section 508 of the Clean Water ment;
Act (33 U.S.C. 1368), Executive Order (2) A formal Cooperative Agreement
11738, and EPA regulations (40 CFR amendment is executed specifically
part 15) which prohibit the use of facili- covering the costs before they are in-
ties included on the EPA List of Vio- curred;
lating Facilities under nonexempt Fed- (3) The costs are not incurred to pre-
eral contracts, grants or loans. pare documentation that should be pre-
(3) Patents, inventions, and copyrights. pared by the contractor to support a
All contracts must include notice of claim against the recipient; and
EPA requirements and regulations per- (4) The award official determines
taining to reporting and patent rights that there is a significant Federal in-
under any contract involving research, terest in the issues involved in the
developmental, experimental or dem- claim.
onstration work with respect to any (c) Claims defense. The recipient may
discovery or invention which arises or incur costs (including legal, technical
is developed while conducting work and administrative) to defend against a
under a contract. This notice shall also contractor claim for increased costs
include EPA requirements and regula- under a contract or to prosecute a
tions pertaining to copyrights and claim to enforce a contract provided:
610
(1) The claim arises from work within (i) The applicable provisions in
the scope of the Cooperative Agree- § 35.6555(b)(2).
ment;
(2) A formal Cooperative Agreement REPORTS REQUIRED UNDER A
amendment is executed specifically COOPERATIVE AGREEMENT
covering the costs before they are in-
curred; § 35.6650 Quarterly progress reports.
(3) Settlement of the claim cannot (a) Reporting frequency. The recipient
occur without arbitration or litigation; must submit progress reports quarterly
(4) The claim does not result from on the activities delineated in the
the recipient’s mismanagement; Statement of Work. EPA may not re-
(5) The award official determines quire submission of progress reports
that there is a significant Federal in- more often than quarterly. The reports
terest in the issues involved in the must be submitted within 30 days of
claim; and the end of each Federal Fiscal quarter.
(6) In the case of defending against a (b) Content. The quarterly progress
contractor claim, the claim does not report must contain the following in-
result from the recipient’s responsi- formation:
bility for the improper action of oth- (1) An explanation of work accom-
ers. plished during the reporting period,
delays, or other problems, if any, and a
§ 35.6605 Privity of contract. description of the corrective measures
Neither EPA nor the United States that are planned. For pre-remedial Co-
shall be a party to any contract nor to operative Agreements, the report must
any solicitation or request for pro- include a list of the site-specific prod-
posals. ucts completed and the estimated num-
ber of technical hours spent to com-
§ 35.6610 Contracts awarded by a con- plete each product.
tractor. (2) A comparison of the percentage of
The recipient must require its con- the project completed to the project
tractor to comply with the following schedule, and an explanation of signifi-
provisions in the award of contracts cant discrepancies.
(i.e. subcontracts). (This section does (3) A comparison of the estimated
not apply to a supplier’s procurement funds spent to date to planned expendi-
of materials to produce equipment, ma- tures and an explanation of significant
terials and catalog, off-the-shelf, or discrepancies. For remedial, enforce-
manufactured items.) ment, and removal reports, the com-
(a) The requirements regarding parison must be on a per task basis.
debarred, suspended, and voluntarily (4) An estimate of the time and funds
excluded persons in § 35.6560 of this sub- needed to complete the work required
part. in the Cooperative Agreement, a com-
(b) The limitations on contract parison of that estimate to the time
award in § 35.6550(a)(8) of this subpart. and funds remaining, and a justifica-
(c) The requirements regarding mi- tion for any increase.
nority and women’s business enter-
prises, and small business in § 35.6580 of § 35.6655 Notification of significant de-
this subpart. velopments.
(d) The requirements regarding speci- Events may occur between the sched-
fications in § 35.6555 (a)(6) and (c) of this uled performance reporting dates
subpart. which have significant impact upon the
(e) The Federal cost principles in 40 Cooperative Agreement-supported ac-
CFR 31.22. tivity. In such cases, the recipient
(f) The prohibited types of contracts must inform the EPA project officer as
in § 35.6575(a) of this subpart. soon as the following types of condi-
(g) The cost, price analysis, and prof- tions become known:
it analysis requirements in § 35.6585 of (a) Problems, delays, or adverse con-
this subpart. ditions which will materially impair
(h) The applicable provisions in the ability to meet the objective of the
§ 35.6595 (b) and (c) of this subpart. award. This disclosure must include a
611
§ 35.6660 40 CFR Ch. I (7–1–00 Edition)
statement of the action taken, or con- § 35.6665 Procurement reports.

templated, and any assistance needed
(a) Department of Labor (DOL) Re-
to resolve the situation.
ports—(1) Content. The recipient must
(b) Favorable developments which notify the DOL Regional Office of Com-
enable meeting time schedules and ob- pliance, in writing, of each construc-
jectives sooner or at less cost than an- tion contract which has or is expected
ticipated or producing more beneficial to have an aggregate value of over
results than originally planned. $10,000 within a 12-month period. The
report must include the following:
§ 35.6660 Property inventory reports.
(i) Construction contractor’s name,
(a) CERCLA-funded property—(1) Con- address, telephone number, and em-
tent. The report must contain the fol- ployee identification number;
lowing information: (ii) Award amount;
(i) Classification and value of re- (iii) Estimated start and completion
maining supplies; dates; and
(ii) Description of all equipment pur- (iv) Project number, name, and site
chased with CERCLA funds, including location.
its current condition; (2) Reporting frequency. The recipient
(iii) Verification of the current use must notify the DOL Office of Compli-
and continued need for the equipment ance within 10 calendar days after the
by site, activity, and operable unit, as award of each such construction con-
applicable; tract. The recipient must submit a
(iv) Notification of any property copy of the report to the EPA project
which has been stolen or vandalized; officer.
and (b) Minority and women’s business en-
(v) A request for disposition instruc- terprise (MBE/WBE) Reports. (1) The re-
tions for any equipment no longer cipient must report on its use of MBE
needed on the project. and WBE firms by submitting a com-
(2) Reporting frequency. The recipient pleted Minority and Women’s Business
must submit an inventory report to Utilization Report (SF–334) to the
EPA at the following times: award official. Reporting commences
(i) Within 90 days after completing with the recipient’s award of its first
any CERCLA-funded project or any re- contract and continues until it and its
sponse activity at a site; and contractors have awarded their last
(ii) When the equipment is no longer contract for the activities or tasks
needed for any CERCLA-funded project identified in the Cooperative Agree-
or any response activity at a site. ment. The recipient must submit the
MBE/WBE Utilization Report within 30
(b) Federally owned property—(1) Con-
days after the end of each Federal fis-
tent. The recipient must include the
cal quarter, regardless of whether the
following information for each feder-
recipient awards a contract to an MBE
ally owned item in the inventory re-
or WBE during that quarter.
port:
(2) The recipient must also report on
(i) Description; its efforts to encourage MBE participa-
(ii) Decal number; tion in the Superfund program pursu-
(iii) Current condition; and ant to CERCLA § 105(f). Information on
(iv) Request for disposition instruc- the recipient’s efforts to encourage
tions. MBE participation in the Superfund
(2) Reporting frequency. The recipient program may be included in each SF–
must submit an inventory report to the 334 submitted quarterly, but is required
appropriate EPA property accountable in the SF–334 submitted for the fourth
officer at the following times: quarter, due November 1 of each year.
(i) Annually, due to EPA on the anni-
versary date of the award; § 35.6670 Financial reports.
(ii) When the property is no longer (a) General. The recipient must com-
needed; and ply with the requirements regarding fi-
(iii) Within 90 days after the end of nancial reporting described in 40 CFR
the project period. 31.41.
612
(b) Financial Status Report—(1) Con- (2) Manufacturer’s serial number,

tent. (i) The Financial Status Report model number, or other identification
(SF–269) must include financial infor- number;
mation by site, activity, and operable (3) Source of the property, including
unit, as applicable. the assistance identification number;
(ii) A final Financial Status Report (4) Information regarding whether
(FSR) must have no unliquidated obli- the title is vested in the recipient or
gations. If any obligations remain un- EPA;
liquidated, the FSR is considered an in- (5) Unit acquisition date and cost;
terim report and the recipient must (6) Percentage of EPA’s interest;
submit a final FSR to EPA after liqui-
(7) Location, use and condition (by
dating all obligations.
site, activity, and operable unit, as ap-
(2) Reporting frequency. The recipient plicable) and the date this information
must file a Financial Status Report as was recorded; and
follows:
(8) Ultimate disposition data, includ-
(i) Annually due 90 days after the end ing the sales price or the method used
of the Federal fiscal year or as speci- to determine the price, or the method
fied in the Cooperative Agreement; or
used to determine the value of EPA’s
if quarterly or semiannual reports are
interest for which the recipient com-
required in accordance with 40 CFR
pensates EPA in accordance with
31.41(b)(3), due 30 days after the report-
§§ 35.6340, 35.6345, and 35.6350 of this sub-
ing period;
part.
(ii) Within 90 calendar days after
(d) Procurement records—(1) General.
completing each CERCLA-funded re-
The recipient must maintain records
sponse activity at a site (submit the
which support the following items, and
FSR only for each completed activity);
must make them available to the pub-
and
lic:
(iii) Within 90 calendar days after
termination or closeout of the Coopera- (i) The reasons for rejecting any or
tive Agreement. all bids; and
(ii) The justification for a procure-
RECORDS REQUIREMENTS UNDER A ment made on a noncompetitively ne-
COOPERATIVE AGREEMENT gotiated basis.
(2) Procurements in excess of $25,000.
§ 35.6700 Project records. The recipient’s records and files for
The lead agency for the response ac- procurements in excess of $25,000 must
tion must compile and maintain an ad- include the following information, in
ministrative record consistent with addition to the information required in
section 113 of CERCLA, the National paragraph (d)(1) of this section:
Contingency Plan, and relevant EPA (i) The basis for contractor selection;
policy and guidance. In addition, re- (ii) A written justification for select-
cipients of assistance (whether lead or ing the procurement method;
support agency) are responsible for (iii) A written justification for use of
maintaining project files as described any specification which does not pro-
below. vide for maximum free and open com-
(a) General. The recipient must main- petition;
tain project records by site, activity, (iv) A written justification for the
and operable unit, as applicable. choice of contract type; and
(b) Financial records. The recipient (v) The basis for award cost or price,
must maintain records which support including a copy of the cost or price
the following items: analysis made in accordance with
(1) Amount of funds received and ex- § 35.6585 of this subpart and documenta-
pended; and tion of negotiations.
(2) Direct and indirect project cost. (e) Other records. The recipient must
(c) Property records. The recipient maintain records which support the
must maintain records which support following items:
the following items: (1) Time and attendance records and
(1) Description of the property; supporting documentation;
613
§ 35.6705 40 CFR Ch. I (7–1–00 Edition)
(2) Documentation of compliance policy, deliberative, and enforcement

with statutes and regulations that documents which may be held con-
apply to the project; and fidential, ensure that all files are avail-
(3) The number of site-specific tech- able to the public.
nical hours spent to complete each pre- (c) Contractor requirements. The re-
remedial product. cipient must require its contractor to
comply with the requirements regard-
§ 35.6705 Records retention. ing records access described in 40 CFR
(a) Applicability. This requirement ap- 31.36(i)(10).
plies to all financial and programmatic
records, supporting documents, statis- OTHER ADMINISTRATIVE REQUIREMENTS
tical records, and other records which FOR COOPERATIVE AGREEMENTS
are required to be maintained by the
terms of this subpart, program regula- § 35.6750 Modifications.
tions, or the Cooperative Agreement, The recipient must comply with the
or are otherwise reasonably considered requirements regarding changes to the
as pertinent to program regulations or Cooperative Agreement described in 40
the Cooperative Agreement. CFR 31.30.
(b) Length of retention period. The re-
cipient must maintain all records for 10 § 35.6755 Monitoring program perform-
years following submission of the final ance.
Financial Status Report unless other- The recipient must comply with the
wise directed by the EPA award offi- requirements regarding program per-
cial, and must obtain written approval formance monitoring described in 40
from the EPA award official before de- CFR 31.40 (a) and (e).
stroying any records. If any litigation,
claim, negotiation, audit, cost recov- § 35.6760 Enforcement and termination
ery, or other action involving the for convenience.
records has been started before the ex- The recipient must comply with all
piration of the ten-year period, the terms and conditions in the Coopera-
records must be retained until comple- tive Agreement, and is subject to the
tion of the action and resolution of all requirements regarding enforcement of
issues which arise from it, or until the the terms of an award and termination
end of the regular ten-year period, for convenience described in 40 CFR
whichever is later. 31.43 and 31.44.
(c) Substitution of microform. Micro-
form copies may be substituted for the § 35.6765 Non-Federal audit.
original records. The recipient must
The recipient must comply with the
have written EPA approval before de-
requirements regarding non-Federal
stroying original records. The micro-
audits described in 40 CFR 31.26.
form copying must be performed in ac-
cordance with the technical regula- § 35.6770 Disputes.
tions concerning micrographics of Fed-
eral Government records (36 CFR part The recipient must comply with the
1230) and EPA records management requirements regarding dispute resolu-
procedures (EPA Order 2160). tion procedures described in 40 CFR
(d) Starting date of retention period. 31.70.
The recipient must comply with the re-
quirements regarding the starting § 35.6775 Exclusion of third-party ben-
efits.
dates for records retention described in
40 CFR 31.42(c) (1) and (2). The Cooperative Agreement benefits
only the signatories to the Cooperative
§ 35.6710 Records access. Agreement.
(a) Recipient requirements. The recipi-
ent must comply with the require- § 35.6780 Closeout.
ments regarding records access de- (a) Closeout of a Cooperative Agree-
scribed in 40 CFR 31.42(e). ment, or an activity under a Coopera-
(b) Availability of records. The recipi- tive Agreement, can take place in the
ent must, with the exception of certain following situations:
614
(1) After the completion of all work (2) Both the State and the political
for a response activity at a site; or subdivision must comply with the re-
(2) After all activities under a Coop- quirements described in §§ 35.6805,
erative Agreement have been com- 35.6815, and 35.6820 of this subpart.
pleted; or
(3) Upon termination of the Coopera- § 35.6805 Contents of an SSC.
tive Agreement. The SSC must include the following
(b) The recipient must comply with provisions:
the closeout requirements described in (a) General authorities, which docu-
40 CFR 31.50 and 31.51. ments the relevant statutes and regu-
§ 35.6785 Collection of amounts due. lations (of each government entity
that is a party to the contract) gov-
The recipient must comply with the erning the contract;
requirements described in 40 CFR 31.52 (b) Purpose of the SSC, which de-
regarding collection of amounts due. scribes the response activities to be
conducted and the benefits to be de-
§ 35.6790 High risk recipients.
rived;
If EPA determines that a recipient is (c) Negation of agency relationship be-
not responsible, EPA may impose re- tween the signatories, which states
strictions on the award as described in that no signatory of the SSC can rep-
40 CFR 31.12. resent or act on the behalf of any other
signatory in any matter associated
REQUIREMENTS FOR ADMINISTERING A
with the SSC;
SUPERFUND STATE CONTRACT (SSC)
(d) A site description, pursuant to
§ 35.6800 General. § 35.6105(a)(2)(i) of this subpart;
An SSC is required when either EPA (e) A site-specific Statement of Work,
or a political subdivision is the lead pursuant to § 35.6105(a)(2)(ii) of this sub-
agency for a CERCLA response. This part and a statement of whether the
rule does not address whether Indian contract constitutes an initial SSC or
Tribes are subject to the requirements an amendment to an existing contract;
in § 35.6805(i)(2) (See § 35.610(a)). (f) A statement of intention to follow
(a) EPA-lead SSC (Two-party SSC). (1) EPA policy and guidance;
An SSC with a State or Indian Tribe is (g) A project schedule to be prepared
required before EPA can obligate or during response activities;
transfer funds for an EPA-lead reme- (h) A statement desinating a primary
dial action. contact for each party to the contract,
(2) The State must comply with the which designates representatives to act
requirements described in §§ 35.6805 and on behalf of each signatory in the im-
35.6815 of this subpart. The Indian Tribe plementation of the contract. This
must comply with the requirements de- statement must document the author-
scribed in § 35.6805 (a) through (h), (i)(4), ity of each project manager to approve
(l) through (v); § 35.6815(b); and, if ap- modifications to the project so long as
propriate, § 35.6815 (c) and (d). such changes are within the scope of
(b) Political subdivision-lead SSC the contract and do not significantly
(Three-party SSC). (1) To ensure State impact the SSC;
involvement as required under section (i) The CERCLA assurances, as appro-
121(f) of CERCLA and subpart F of the priate, as described below:
National Contingency Plan, an SSC is (1) Operation and maintenance. The
required between EPA, the State and a State must provide an assurance pursu-
political subdivision before a political ant to § 35.6105(b)(1) of this subpart.
subdivision may take the lead for any (2) Twenty-year waste capacity. The
phase of remedial response. The SSC State must provide an assurance pursu-
must contain, or must be amended to ant to § 35.6105(b)(3) of this subpart.
include, the State’s assurances pursu- (3) Off-site storage, treatment, or dis-
ant to § 35.6805(i) of this subpart before posal. If off-site storage, destruction,
EPA obligates funds for remedial ac- treatment, or disposal is required, the
tion set forth in the Statement of State must provide an assurance pursu-
Work of the SSC. ant to § 35.6105(b)(4) of this subpart; the
615
§ 35.6805 40 CFR Ch. I (7–1–00 Edition)
political subdivision may not provide (2) Any change(s) in the SSC must be
this assurance. agreed to, in writing, by the signato-
(4) Real Property Acquisition. When ries, except as provided elsewhere in
real property must be acquired, the the SSC, and must be reflected in all
State must provide an assurance pursu- response agreements affected by the
ant to § 35.6105(b)(5) of this subpart. An change(s);
Indian Tribe must provide an assurance (m) List of Support Agency Cooperative
pursuant to § 35.6110(b)(2). Agreements that are also in place for
(5) Provision of State cost share. The the site;
State must provide assurances for cost (n) Litigation, which describes EPA’s
sharing pursuant to § 35.6105(b)(2). Even right to bring an action against any
if the political subdivision is providing party under section 106 of CERCLA to
the actual cost share, the State must compel cleanup, or for cost recovery
guarantee payment of the cost share in under section 107 of CERCLA.
the event of default by the political (o) Sanctions for failure to comply with
subdivision. SSC terms, which states that if the sig-
(j) Cost-share conditions, which in- natories fail to comply with the terms
clude: of the SSC, EPA may proceed under
(1) An estimate of the response ac- the provisions of section 104(d)(2) of
tion cost (excluding EPA’s indirect CERCLA and may seek in the appro-
costs) that requires cost share; priate court of competent jurisdiction
(2) The basis for arriving at this fig- to enforce the SSC or to recover any
ure (See § 35.6285(c) for credit provi- funds advanced or any costs incurred
sions); and due to a breach of the SSC. Other sig-
(3) The payment schedule as nego- natories to the SSC may seek remedies
tiated by the signatories, and con- in the appropriate court of competent
sistent with either a lump-sum or in- jurisdiction.
cremental-payment option. Final pay- (p) Site access. The State or political
ment must be made by completion of subdivision or Indian Tribe is expected
all activities in the site-specific State- to use its own authority to secure ac-
ment of Work with the exception of cess to the site and adjacent prop-
any change orders and claims handled erties, as well as all rights-of-way and
during reconciliation of the SSC; easements necessary to complete the
(k) Reconciliation provision, which response actions undertaken pursuant
states that the SSC remains in effect to the SSC;
until the financial settlement of (q) Joint inspection of the remedy. Fol-
project costs and final reconciliation of lowing completion of the remedial ac-
response costs (including all change or- tion, the State and EPA will jointly in-
ders, claims, overpayments, reimburse- spect the project. The SSC must in-
ments, etc.) ensure that both EPA and clude a statement indicating the
the State have satisfied the cost share State’s approval of the final remedial
requirement contained in section 104 of action report submitted by EPA.
CERCLA, as amended. Overpayments (r) Exclusion of third-party benefits,
in an SSC may not be used to meet the which states that the SSC is intended
cost-sharing obligation at another site. to benefit only the signatories of the
Reimbursements for any overpayment SSC, and extends no benefit or right to
will be made to the payer identified in any third party not a signatory to the
the SSC. SSC; and
(l) Amendability of the SSC, which pro- (s) Any other provision deemed nec-
vides that: essary by all parties to facilitate the
(1) Formal amendments are required response activities covered by the SSC.
when alterations to CERCLA-funded (t) State review. The State or Indian
activities are necessary or when alter- Tribe must review and comment on the
ations impact the State’s assurances response actions pursuant to the SSC.
pursuant to the National Contingency Unless otherwise stated in the SSC, all
Plan and CERCLA, as amended. Such time frames for review must follow
amendments must include a Statement those prescribed in the NCP.
of Work for the amendment as de- (u) Responsible party activities, which
scribed in § 35.6805(e) above; states that if a Responsible Party
616
takes over any activities at the site, comply with the requirements de-
the SSC will be modified or termi- scribed in 40 CFR 31.52(a) regarding col-
nated, as appropriate. lection of amounts due.
(v) Out-of-State or out-of-Indian Tribal (3) Failure to comply with negotiated
jurisdiction transfers of CERCLA waste, payment terms. Failure to comply with
which states that, unless otherwise negotiated payment terms may be con-
provided for by EPA or a political sub- strued as default by the State on its re-
division, the State or Indian Tribe quired assurances, even if the political
must provide the notification require- subdivision is responsible for providing
ments described in § 35.6120. all or part of the cost share. (See
§ 35.6805(i)(5) of this subpart.)
§ 35.6815 Administrative requirements. (b) Personal Property. The State, In-
In addition to the requirements spec- dian Tribe, or political subdivision is
ified in § 35.6805, the State and/or polit- required to accept title. The following
ical subdivision must comply with the requirements apply to equipment used
following: as all or part of the remedy:
(a) Financial administration. The (1) Fixed in-place equipment. EPA no
State and/or political subdivision must longer has an interest in fixed in-place
comply with the following require- equipment once the equipment is in-
ments regarding financial administra- stalled.
tion: (2) Equipment that is an integral part of
(1) Payment. The State may pay for services to individuals. EPA no longer
its share of the costs of the response has an interest in equipment that is an
activities in cash or credit. As appro- integral part of services to individuals,
priate, specific credit provisions should such as pipes, lines, or pumps providing
be included in the SSC consistent with hookups for homeowners on an existing
the requirements described in water distribution system, once EPA
§ 35.6285(c) of this subpart. The State certifies that the remedy is operational
may not pay for its cost share using in- and functional.
kind services, unless the State has en- (c) Reports. The State and/or political
tered into a support agency Coopera- subdivision or Indian Tribe must com-
tive Agreement with EPA. The use of ply with the following requirements re-
the support agency Cooperative Agree- garding reports:
ment as a vehicle for providing cost
(1) EPA-lead. The nature and fre-
share must be documented in the SSC.
quency of reports between EPA and the
If the political subdivision agrees to
State or Indian Tribe will be specified
provide all or part of the State’s cost
in the SSC.
share pursuant to a political subdivi-
sion-lead Cooperative Agreement, the (2) Political subdivision-lead. The polit-
political subdivision may pay for those ical subdivision must submit to the
costs in cash or in-kind services under State a copy of all reports which the
that agreement. The use of a political political subdivision is required to sub-
subdivision-lead Cooperative Agree- mit to EPA in accordance with the re-
ment as a vehicle for providing cost quirements of its Cooperative Agree-
share must also be documented in the ment. (See § 35.6650 for requirements re-
SSC. The State or political subdivision garding quarterly progress reports.)
must make payments during the course (d) Records. The State and political
of the site-specific project and must subdivision or Indian Tribe must main-
complete payments by completion of tain records on a site-specific basis.
activities in the site-specific State- The State and political subdivision or
ment of Work. (See § 35.6255 of this sub- Indian Tribe must comply with the re-
part for requirements concerning cost quirements regarding record retention
sharing under a support agency Cooper- described in § 35.6705 and the require-
ative Agreement.) The specific payments regarding record access de-
ment terms must be documented in the scribed in § 35.6710.
SSC pursuant to § 35.6805 of this sub-
part. § 35.6820 Conclusion of the SSC.
(2) Collection of amounts due. The In order to conclude the SSC, the sig-
State and/or political subdivision must natories must:
617
§ 35.9000 40 CFR Ch. I (7–1–00 Edition)
(a) Satisfactorily complete the re- oped within budgetary targets provided
sponse activities at the site and make by EPA.
all payments based upon project costs Five-Year State/EPA Conference Agree-
determined in § 35.6805(j); ment. Agreement negotiated among the
(b) Produce a final accounting of all States represented in a Management
project costs, including change orders Conference and the EPA shortly after
and outstanding contractor claims; and the Management Conference is con-
(c) Submit all State cost-share pay- vened. The agreement identifies mile-
ments to EPA (see § 35.6805(i)(5)), under- stones to be achieved during the term
take responsibility for O&M, and, if ap- of the Management Conference.
plicable, accept interest in real prop- Management Conference. A Manage-
erty (see § 35.6805(i)(4)). ment Conference convened by the Ad-
ministrator under Section 320 of the
CWA for an estuary in the NEP.
Subpart P—Financial Assistance National Program Assistance Agree-
for the National Estuary Program ments. Assistance Agreements approved
by the EPA Assistant Administrator
AUTHORITY: Sec. 320 of the Clean Water for Water for work undertaken to ac-
Act, as amended (33 U.S.C. 1330). complish broad NEP goals and objec-
SOURCE: 54 FR 40804, Oct. 3, 1989 (interim), tives.
unless otherwise noted. Work Program. The Scope of Work of
an assistance application, which identi-
§ 35.9000 Applicability. fies how and when the applicant will
use funds to produce specific outputs.
This subpart codifies policies and
procedures for financial assistance § 35.9015 Summary of annual process.
awarded by the EPA to State, inter-
state, and regional water pollution (a) EPA considers various factors to
control agencies and entities and other allocate among the Management Con-
eligible agencies, institutions, organi- ferences the funds requested in the
zations, and individuals for pollution President’s budget for the NEP. Each
abatement and control programs under year, the Director of the Office of Ma-
the National Estuary Program (NEP). rine and Estuarine Protection issues
These provisions supplement the EPA budgetary targets for the NEP for each
general assistance regulations in 40 Management Conference. These targets
CFR parts 30 and 31. are based upon negotiated Five-Year
State/EPA Conference Agreements.
§ 35.9005 Purpose. (b) Using the budgetary targets pro-
vided by EPA, each Management Con-
Section 320(g) of the Clean Water Act ference develops Annual Work Plans
(CWA) authorizes assistance to eligible describing the work to be completed
States, agencies, entities, institutions, during the year and identifies indi-
organizations, and individuals for de- vidual projects to be funded for the
veloping a comprehensive conservation completion of such work. Each appli-
and management plan (CCMP) for an cant having a scope of work approved
estuary. by the Management Conference com-
pletes a standard EPA application, in-
cluding a proposed work program.
Aggregate costs. The total cost of all After the applicant submits an applica-
research, surveys, studies, modeling, tion, the Regional Administrator re-
and other technical work completed by views it and, if it meets applicable re-
a Management Conference during a fis- quirements, approves the application
cal year to develop a Comprehensive and agrees to make an award when
Conservation and Management Plan for funds are available. The Regional Ad-
the estuary. ministrator awards assistance from
Annual work plan. The plan, devel- funds appropriated by Congress for
oped by the Management Conference that purpose.
each year, which documents projects to (c) The recipient conducts activities
be undertaken during the upcoming according to the approved application
year. The Annual Work Plan is devel- and assistance award. The Regional
618
Administrator evaluates recipient per- date under an existing award, the pro-
formance to ensure compliance with all posed work program, and a list of all
conditions of the assistance award. applicable EPA-approved State strate-
(d) The Regional Administrator may gies and program plans, with a state-
use funds not awarded to an applicant ment certifying that the proposed work
to supplement awards to other recipi- program is consistent with these ele-
ents who submit a score of work ap- ments. The annual workplan developed
proved by the management conference and approved by the management con-
for NEP funds. ference each fiscal year must dem-
(e) The EPA Assistant Administrator onstrate that non-Federal sources pro-
for Water may approve National Pro- vide at least 25 percent of the aggre-
gram awards as provided in § 35.9070. gate costs of research, surveys, studies,
§ 35.9020 Planning targets. modeling, and other technical work
necessary for the development of a
The EPA Assistant Administrator for CCMP for the estuary. Each applica-
Water develops planning targets each tion must contain a copy of the Annual
year to help each Management Con- Work Plan as specified in § 35.9065(c) (2)
ference develop an Annual Work Plan. and (3) for the current Federal fiscal
These targets are broad budgetary year. The funding table in the
goals for total expenditures by each es- workplan must demonstrate that the 25
tuary program and are directly related percent match requirements is being
to the activities that are to be carried met, and the workplan table of project
out by each Management Conference in status must show the sources of funds
that year as specified in the Five-Year
supporting each project.
State/EPA Conference Agreement. The
planning targets also are based on the § 35.9045 EPA action on application.
Director’s evaluation of the ability of
each Management Conference to use The Regional Administrator will re-
appropriated funds effectively. view each completed application and
should approve, conditionally approve,
§ 35.9030 Work program. or disapprove the application within 60
The work program is part of the ap- days of receipt. When funds are avail-
plication for financial assistance and able, the Regional Administrator will
becomes part of the award document. award assistance based on an approved
It is part of the basis for an award deci- or conditionally approved application.
sion and the basis for management and For a continuation award made after
evaluation of performance under an as- the beginning of the approved budget
sistance award. The work program period, EPA will reimburse the appli-
must specify the level of effort and cant for allowable costs incurred from
amount and source of funding esti- the beginning of the budget period, pro-
mated to be needed for each identified vided that such costs are contained in
activity, the outputs committed for the approved application and that the
each activity, and the schedule for de- application was submitted before the
livery of outputs. expiration of the prior budget period.
(a) Approval. The Regional Adminis-
§ 35.9035 Budget period. trator will approve the application
An applicant may choose its budget only if it satisfies the requirements of
period in consultation with and subject CWA section 320; the terms, conditions,
to the approval of the Regional Admin- and limitations of this subpart; and the
istrator. applicable provisions of 40 CFR parts
30, 31, and other EPA assistance regula-
§ 35.9040 Application for assistance. tions. The Regional Administrator
Each applicant should submit a com- must also determine that the proposed
plete application at least 60 days before outputs are consistent with EPA guid-
the beginning of the budget period. In ance or otherwise demonstrated to be
addition to meeting applicable require- necessary and appropriate; and that
ments contained in 40 CFR part 30 or achievement of the proposed outputs is
31, a complete application must con- feasible, considering the applicant’s
tain a discussion of performance to past performance, program authority,
619
§ 35.9050 40 CFR Ch. I (7–1–00 Edition)
organization, resources, and proce- Regional Administrator will provide

dures. the evaluation findings to the recipient
(b) Conditional approval. The Regional and will include these findings in the
Administrator may conditionally ap- official assistance file. If the evalua-
prove the application after consulting tion reveals that the recipient is not
with the applicant if only minor achieving one or more of the conditions
changes are required. The award will of the assistance agreement, the Re-
include the conditions the applicant gional Administrator will attempt to
must meet to secure final approval and resolve the situation through negotia-
the date by which those conditions tion. If agreement is not reached, the
must be met. Regional Administrator may impose
(c) Disapproval. If the application sanctions under the applicable provi-
cannot be approved or conditionally sions of 40 CFR part 30 or 31.
approved, the Regional Administrator
will negotiate with the applicant to § 35.9060 Maximum Federal share.
change the output commitments, re- The Regional Administrator may
duce the assistance amount, or make provide up to 100 percent of the ap-
any other changes necessary for approved work program costs for a par-
proval. If negotiation fails, the Re- ticular application provided that non-
gional Administrator will disapprove Federal sources provide at least 25 per-
the application in writing. cent of the aggregate costs of research,
surveys, studies, modeling, and other
§ 35.9050 Assistance amount. technical work necessary for the devel-
(a) Determining the assistant amount. opment of a comprehensive conserva-
In determining the amount of assist- tion and management plan for the es-
ance to an applicant, the Regional Ad- tuary as specified in the estuary An-
ministrator will consider the Manage- nual Work Plan for each fiscal year.
ment Conference planning target, the
extent to which the applicant’s Work § 35.9065 Limitations.
Program is consistent with EPA guid- (a) Management conferences. The Re-
ance, and the anticipated cost of the gional Administrator will not award
applicant’s program relative to the funds pursuant to CWA section 320(g)
proposed outputs. to any applicant unless and until the
(b) Reduction of assistance amount. If scope of work and overall budget have
the Regional Administrator determines been approved by the Management
that the proposed outputs do not jus- Conference of the estuary for which the
tify the level of funding requested, he work is proposed.
will reduce the assistance amount. If (b) Elements of annual workplans. An-
the evaluation indicates that the pro- nual Work Plans to be prepared by es-
posed outputs are not consistent with tuary Management Conferences must
the priorities contained in EPA guid- be reviewed by the Regional Adminis-
ance, the Regional Administrator may trator before final ratification by the
reduce the assistance amount. Management Conference and must in-
clude the following elements:
§ 35.9055 Evaluation of recipient per- (1) Introduction. A discussion of
formance. achievements in the estuary, a sum-
The Regional Administrator will mary of activities undertaken in the
oversee each recipient’s performance past year to further each of the seven
under an assistance agreement. In con- purposes of a Management Conference
sultation with the applicant, the Re- specified in section 320(b) of the CWA,
gional Administrator will develop a the major emphases for activity in the
process for evaluating the recipient’s upcoming year, and a schedule of mile-
performance. The Regional Adminis- stones to be reached during the year.
trator will include the schedule for (2) Funding sources. A table of fund
evaluation in the assistance agreement sources for activities in the new year,
and will evaluate recipient perform- including a description of the sources
ance and progress toward completing and types (e.g., in-kind contributions
the outputs in the approved work pro- to be performed by the applicant) of
gram according to the schedule. The funds comprising the contribution by
620
applicants or third parties, and the (b) 40 CFR part 31, ‘‘Uniform Admin-
source and type of any other non-Fed- istrative Requirements for Grants and
eral funds or contributions. Cooperative Agreements to State and
(3) Projects. A description of each Local Governments,’’ establishes con-
project to be undertaken, a summary sistency and uniformity among Federal
table of project status listing all ac- agencies in the administration of
tivities, the responsible organization or grants and cooperative agreements to
individual, the products expected from State, local, and Indian Tribal govern-
each project, approximate schedules, ments. This subpart supplements the
budgets, and the source and type of the requirements contained in 40 CFR part
non-Federal 25 percent minimum cost 31, including its provisions for account-
share of the aggregate costs of re- ing, auditing, evaluating, and review-
search, surveys, studies, modeling, and ing any programs or activities funded
other technical work necessary for the in whole or in part by an EPA grant.
development of a comprehensive con-
servation and management plan for an § 35.10010 Definitions.
estuary.
(a) Indian tribal government. Any In-
[54 FR 40804, Oct. 3, 1989, as amended at 59 FR dian tribe, band, nation, or other orga-
61126, Nov. 29, 1994] nized group or community, including
any Alaska Native village or regional
§ 35.9070 National program assistance
agreements. or village corporation (as defined in, or
established pursuant to, the Alaska
The Assistant Administrator for Native Claims Settlement Act (43
Water may approve the award of NEP U.S.C. 1601, et seq.)), which is recog-
funds for work that has broad applica- nized by the United States Department
bility to estuaries of national signifi-
of the Interior as eligible for the spe-
cance. These awards shall be deemed to
cial services provided by the United
be consistent with Annual Work Plans
States to Indians because of their sta-
and Five-Year State/EPA Conference
Agreements approved by individual tus as Indians.
management conferences. The amount (b) Intertribal Consortia or Intertribal
of a national program award shall not Consortium. A partnership between two
exceed 75 percent of the approved work or more Indian tribal governments au-
program costs provided the non-Fed- thorized by the governing bodies of
eral share of such costs is provided those tribes to apply for and receive as-
from non-Federal sources. sistance under this program.
(c) General assistance. Financial as-
Subpart Q—General Assistance sistance provided under this program
Grants to Indian Tribes to Indian tribal governments or to an
intertribal consortia or consortium to
cover the costs of planning, developing,
SOURCE: 58 FR 63878, Dec. 2, 1993, unless
otherwise noted.
and establishing the capability to im-
plement environmental protection pro-
§ 35.10000 Authority. grams on Indian lands. General assist-
ance may be provided through either a
This subpart is issued under the In-
grant or a cooperative agreement in ac-
dian Environmental General Assist-
cordance with the Federal Grant and
ance Program Act of 1992 (‘‘the Act’’),
42 U.S.C. 4368b. Cooperative Agreement Act, 31 U.S.C.
6301 et seq.
§ 35.10005 Purpose and scope.
§ 35.10015 Eligible recipients.
(a) This subpart codifies require-
ments for administering general assist- The following entities are eligible to
ance grants to Indian tribal govern- receive financial assistance under this
ments and intertribal consortia to program:
build capacity to administer environ- (a) An Indian tribal government.
mental regulatory programs on Indian (b) An intertribal consortium or con-
lands. sortia.
621
§ 35.10020 40 CFR Ch. I (7–1–00 Edition)
§ 35.10020 Eligible activities. shall be governed by the following re-

(a) Activities eligible for funding quirements:
under this program are those for plan- (a) Competition. To the extent per-
ning, developing, and establishing ca- mitted by 25 U.S.C. 450e(b):
pability to implement environmental (1) The recipient must provide max-
protection programs, including solid imum open and free competition.
and hazardous waste programs. (2) Recipients must not unduly re-
(b) Alaska Native village corpora- strict or eliminate competition.
tions and regional corporations are not (b) Documentation. Recipients must
eligible to receive general assistance document all procurement activities
for capacity-building to develop regu- with written records that furnish rea-
latory programs. sons for decisions.
(c) Cost. (1) The recipient must deter-
§ 35.10025 Limitations. mine that all costs are reasonable.
Financial assistance provided under (2) The recipient must comply with
this program is subject to the following the cost and price analysis require-
terms and limitations: ments in 40 CFR 31.36(f).
(a) No initial grant provided under (d) Debarment. Recipients and con-
this program for a fiscal year shall be tractors must not make any contract
for an amount less than $75,000. A grant at any time to anyone who is on the
amendment may be for an amount less ‘‘List of Parties Excluded from Federal
than $75,000. Procurement or Nonprocurement Pro-
(b) No single grant awarded under grams.’’
this program may be for an amount ex- (e) Recipient Responsibility. (1) The re-
ceeding ten percent of total annual cipient is responsible for the settle-
funds appropriated under section 11(h) ment and satisfactory completion of
of the Act. all contractual and administrative
(c) Awards made pursuant to this sec- issues arising out of contracts entered
tion shall remain available until ex- into under a grant.
pended within the term of the award. (2) The recipient must ensure that all
The term of an award may exceed one contractors perform in accordance with
year, but may not exceed four years. the terms and conditions of the con-
(d) No award under this program tract.
shall result in reduction of total EPA (f) Responsible contractors. The recipi-
grants for environmental programs to ent shall award contracts only to re-
the recipient. Receipt of funds under sponsible contractors that possess the
this program shall not preclude an eli- potential ability to perform success-
gible Indian tribal government or fully under the terms and conditions of
intertribal consortium from receiving a proposed contract.
individual program or project-specific (g) Disadvantaged business enterprises.
grants or cooperative agreements. The recipient shall comply with the
Funds provided under this program ‘‘Small, Minority, Women’s and Labor
may be used to supplement other funds Surplus Area Business’’ requirements
provided by EPA through individual in 40 CFR 31.36(e).
program or project-specific grants or (h) Illegal contracts. Recipients may
cooperative agreements. not award cost-plus-percentage-of-cost
or percentage-of-construction-cost con-
§ 35.10030 Grant management. tracts.
Procedures for accounting, auditing, (i) Contract provisions. The recipient
evaluating, and reviewing any pro- must include the following provisions
grams or activities funded in whole or in each contract:
in part for a general assistance grant (1) Statement of work;
under this program shall be governed (2) Schedule for performance;
by regulations at 40 CFR part 31. (3) Due dates for deliverables;
(4) Total cost of the contract;
§ 35.10035 Procurement under general (5) Payment provisions; and
assistance agreements. (6) The following clauses from 40 CFR
Procurement of goods or services by 33.1030, ‘‘Model contract clauses’’:
recipients funded under this program (i) Supersession;
622
(ii) Privity of Contract; (iii) Provide the criteria the recipient

(iii) Termination; will use to evaluate bids/proposals;
(iv) Remedies; (iv) Objectively evaluate all bids/pro-
(v) Audit, Access to Records; posals submitted; and
(vi) Covenant Against Contingent (v) Notify all unsuccessful bidders/
Fees; proposers.
(vii) Gratuities; (4) If the aggregate amount of the
(viii) Responsibility of the Con- proposed contract is $50,000 or over, the
tractor; and recipient must follow the procurement
(ix) Final Payment. rules in 40 CFR 31.36.
(j) Subcontracting. A contractor must (m) Non-competitive procurements. The
comply with the following provisions recipient shall comply with the non-
in its award of subcontracts (these re- competitive procurement requirements
quirements do not apply to subcontrac- in 40 CFR 31.36(d)(4).
tors for the supply of materials to
produce equipment, materials, and sub- PART 40—RESEARCH AND
contracts for catalog, off-the-shelf, or DEMONSTRATION GRANTS
manufactured items):
(1) Section 35.10035(b) Documenta- Sec.
tion; 40.100 Purpose of regulation.
(2) Section 35.10035(c) Cost; 40.105 Applicability and scope.
(3) Section 35.10035(d) Debarment; 40.110 Authority.
(4) Section 35.10035(f) Responsible 40.115 Definitions.
40.115–1 Construction.
contractor;
40.115–2 Intermunicipal agency.
(5) Section 35.10035(g) Disadvantaged 40.115–3 Interstate agency.
business enterprises; 40.115–4 Municipality.
(6) Section 35.10035(h) Illegal con- 40.115–5 Person.
tracts; and 40.115–6 State.
(7) Section 35.10035(i) Contract provi- 40.120 Publication of EPA research objec-
sions. tives.
(k) Bid protests. The recipient must 40.125 Grant limitations.
establish a procedure for resolving pro- 40.125–1 Limitations on duration.
40.125–2 Limitations on assistance.
tests which complies with the provi-
40.130 Eligibility.
sions of 40 CFR 31.36(b)(12).
40.135 Application.
(l) Procurement. Recipients shall not 40.135–1 Preapplication coordination.
divide any procurements into smaller 40.135–2 Application requirements.
parts to get under any dollar limit. 40.140 Criteria for award.
(1) If the aggregate amount of the 40.140–1 All applications.
purchase is $1000 or less, the recipient 40.140–2 [Reserved]
may make the purchase as long as the 40.140–3 Federal Water Pollution Control
recipient demonstrates that the price Act.
is reasonable. 40.145 Supplemental grant conditions.
40.145–1 Resource Conservation and Recov-
(2) If the aggregate amount of the
ery Act.
proposed contract is over $1000 but less 40.145–2 Federal Water Pollution Control
than $25,000, the recipient must obtain Act.
and document oral or written price 40.145–3 Projects involving construction.
quotations from two or more qualified 40.150 Evaluation of applications.
sources. 40.155 Availability of information.
(3) If the aggregate amount of the 40.160 Reports.
proposed contract is $25,000 and over 40.160–1 Progress reports.
but less than $50,000, the recipient 40.160–2 Financial status report.
must: 40.160–3 Reporting of inventions.
40.160–4 Equipment report.
(i) Solicit written bids/proposals from
40.160–5 Final report.
two or more sources who are willing 40.165 Continuation grants.
and able to do the work;
(ii) Provide to potential sources a AUTHORITY: Cited in § 40.110.
clear and accurate description of the SOURCE: 38 FR 12784, May 15, 1973, unless
work to be performed; otherwise noted.
623
§ 40.100 40 CFR Ch. I (7–1–00 Edition)
§ 40.100 Purpose of regulation. waters and for the prevention, control,

These provisions establish and codify and elimination of oil and hazardous
policies and procedures governing the substances pollution.
award of research and demonstration (4) Section 104(r) (33 U.S.C. 1254(r))
grants by the Environmental Protec- authorized grants for the conduct of
tion Agency. basic research into the structure and
function of freshwater aquatic eco-
§ 40.105 Applicability and scope. systems, and to improve understanding
of the ecological characteristics nec-
This part establishes mandatory poli-
cies and procedures for all EPA re- essary to the maintenance of the chem-
search and demonstration grants. The ical, physical, and biological integrity
provisions of this part supplement the of freshwater aquatic ecosystems.
EPA general grant regulations and pro- (5) Section 104(s) (33 U.S.C. (s)) au-
cedures (40 CFR part 30). Accordingly, thorizes grants to conduct and report
all EPA research and demonstration on interdisciplinary studies on river
grants are awarded subject to the EPA systems, including hydrology, biology,
interim general grant regulations and ecology, economics, the relationship
procedures (40 CFR part 30) and to the between river uses and land uses, and
applicable provisions of this part 40. the effects of development within river
basins on river systems and on the
§ 40.110 Authority. value of water resources and water-re-
EPA research and demonstration lated activities.
grants are authorized under the fol- (6) Section 105(a) (33 U.S.C. 1255(a))
lowing statutes: authorizes grants for research and
(a) The Clean Air Act, as amended, 42 demonstration of new or improved
U.S.C. 1857 et seq. methods for preventing, reducing, and
(1) Section 103 (42 U.S.C. 1857b) au- eliminating the discharge into any wa-
thorizes grants for research and dem- ters of pollutants from sewers which
onstration projects relating to the carry storm water or both storm water
causes, effects, extent, prevention, and and pollutants; and for the demonstra-
control of air pollution. tion of advanced waste treatment and
(2) Section 104 (42 U.S.C. 1857b–1) au- water purification methods (including
thorizes grants for research and devel- the temporary use of new or improved
opment of new and improved methods chemical additives which provide sub-
for the prevention and control of air stantial immediate improvement to ex-
pollution resulting from the combus- isting treatment processes), or new or
tion of fuels. improved methods of joint treatment
(b) The Federal Water Pollution Con- systems for municipal and industrial
trol Act, as amended, Public Law 92– wastes.
500. (7) Section 105(b) (33 U.S.C. 1255(b))
(1) Section 104(b) (33 U.S.C. 1254(b)) authorizes grants for demonstrating, in
authorizes grants for research and river basins or portions thereof, ad-
demonstration projects relating to the vanced treatment and environmental
causes, effects, extent, prevention, re- enhancement techniques to control
duction, and elimination of water pol- pollution from all sources, within such
lution. basin or portions thereof, including
(2) Section 104(h) (33 U.S.C. 1254(h)) nonpoint sources, together with in-
authorizes grants for research and de- stream water quality improvement
velopment of new and improved meth- techniques.
ods for the prevention, removal, reduc- (8) Section 105(c) (33 U.S.C. 1255(c))
tion, and elimination of pollution in authorizes grants for research and
lakes, including the undesirable effects demonstration projects for prevention
of nutrients and vegetation, and for of pollution of any waters by industry
construction of publicly owned re- including, but not limited to, the pre-
search facilities for such purpose. vention, reduction, and elimination of
(3) Section 104(i) (33 U.S.C. 1254(i)) au- the discharge of pollutants.
thorizes grants for research, studies, (9) Section 105(e)(1) (33 U.S.C.
experiments, and demonstrations rel- 1255(e)(1)) authorizes grants for re-
ative to the removal of oil from any search and demonstration projects
624
with respect to new and improved new or improved technologies for re-
methods of preventing, reducing, and source recovery.
eliminating pollution from agriculture. (3) Section 8005 (42 U.S.C. 6985) au-
(10) Section 105(e)(2) (33 U.S.C. thorizes grants to conduct special stud-
1255(e)(2)) authorizes grants for dem- ies and demonstration projects on re-
onstration projects with respect to new covery of useful energy and materials.
and improved methods of preventing, (4) Section 8006 (42 U.S.C. 6986) au-
reducing, storing, collecting, treating, thorizes grants for the demonstration
or otherwise eliminating pollution of resource recovery system or for the
from sewage in rural and other areas construction of new or improved solid
where collection of sewage in conven- waste disposal facilities.
tional, communitywide sewage collec- (e) The Federal Insecticide, Fun-
tion systems is impractical, uneco- gicide, and Rodenticide Act, as amend-
nomical, or otherwise infeasible, or ed, Public Law 92–516.
where soil conditions or other factors (1) Section 20 authorizes grants for
preclude the use of septic tank and research in the pesticides areas with
drainage field systems. priority given to the development of
(11) Section 107 (33 U.S.C. 1257) au- biologically integrated alternatives for
thorizes grants for projects to dem- pest control.
onstrate comprehensive approaches to (2) [Reserved]
the elimination or control of acid or (f) The Grant Act, 42 U.S.C. 1891 et
other mine water pollution resulting seq., authorizes grants for basic sci-
from active or abandoned mining oper- entific research.
ations and other environmental pollu- [38 FR 12784, May 15, 1973, as amended at 42
tion affecting water quality within all FR 56056, Oct. 20, 1977]
or part of a watershed or river basin,
including siltation from surface min- § 40.115 Definitions.
ing. The statutes identified in § 40.110 con-
(12) Section 108 (33 U.S.C. 1258) au- tain definitions which are not all re-
thorizes grants for projects to dem- peated here. The following terms shall
onstrate new methods and techniques, have the meaning set forth below:
and to develop preliminary plans for
the elimination or control of pollution [42 FR 56056, Oct. 20, 1977]
within all or any part of the water-
§ 40.115–1 Construction.
sheds of the Great Lakes.
(13) Section 113 (33 U.S.C. 1263) au- May include the preliminary plan-
thorizes grants for projects to dem- ning to determine the economic and
onstrate methods to provide for central engineering feasibility of a facility, the
community facilities for safe water and engineering, architectural, legal, fis-
elimination or control of pollution in cal, and economic investigations and
those native villages of Alaska without studies, surveys, designs, plans, work-
such facilities. ing drawings, specifications, proce-
(c) The Public Health Service Act, as dures, and other action necessary to
amended, 42 U.S.C. 241 et seq. the construction of a facility, the erec-
(1) Section 301 (42 U.S.C. 241, 242b, and tion, acquisition, alteration, remod-
246) authorizes grants for research re- eling, improvement, or extension of a
lating to the human and environmental facility, and the inspection and super-
effects of radiation. vision of the construction of a facility.
(2) [Reserved]
(d) The Solid Waste Disposal Act, as § 40.115–2 Intermunicipal agency.
amended, by the Resource Conserva- (a) Under the Clean Air Act, an agen-
tion and Recovery Act of 1976 (42 U.S.C. cy of two or more municipalities lo-
6901 et seq.). cated in the same State or in different
(1) Section 8001 (42 U.S.C. 6981) au- States and having substantial powers
thorizes grants for research and dem- or duties pertaining to the prevention
onstration projects relating to solid and control of air pollution.
waste. (b) Under the Resource Conservation
(2) Section 8004 (42 U.S.C. 6984) au- and Recovery Act, an agency estab-
thorizes grants for demonstration of lished by two or more municipalities
625
§ 40.115–3 40 CFR Ch. I (7–1–00 Edition)
with responsibility for planning or ad- waste management, or an Indian tribe

ministration of solid waste. or authorized tribal organization or
(c) In all other cases, an agency of Alaska Native village or organization,
two or more municipalities having sub- and any rural community or unincor-
stantial powers or duties pertaining to porated town or village or any other
the control of pollution. public entity for which an application
[38 FR 12784, May 15, 1973, as amended at 42 for assistance is made by a State or po-
FR 56056, Oct. 20, 1977] litical subdivision thereof.
(c) In all other cases, a city, town,
§ 40.115–3 Interstate agency. borough, county, parish, district, or
(a) Under the Clean Air Act, an agen- other public body created by or pursu-
cy established by two or more States, ant to State law, or an Indian tribe or
or by two or more municipalities loan authorized Indian tribal organiza-
cated in different States, having sub- tion, having substantial powers or du-
stantial powers or duties pertaining to ties pertaining to the control of pollu-
the prevention and control of air pollution.
tion. [38 FR 12784, May 15, 1973, as amended at 42
(b) Under the Federal Water Pollu- FR 56056, Oct. 20, 1977]
tion Control Act, an agency of two or
more States established by or pursuant § 40.115–5 Person.
to an agreement or compact approved
by the Congress or any other agency of (a) Under the Federal Water Pollu-
two or more States, having substantial tion Control Act, an individual, cor-
powers or duties pertaining to the con- poration, partnership, association,
trol of pollution of waters. State, municipality, commission, or
(c) Under the Resource Conservation political subdivision of a State, or any
and Recovery Act, an agency of two or interstate body.
more municipalities in different States (b) Under the Resource Conservation
or an agency established by two or and Recovery Act, an individual, trust,
more States, with authority to provide firm, joint stock company, corporation
for the disposal of solid wastes and (including a government corporation),
serving two or more municipalities lo- partnership, association, State, mu-
cated in different States. nicipality, commission, political sub-
(d) In all other cases, an agency of division of a State, or any interstate
two or more States having substantial body.
powers or duties pertaining to the con- [38 FR 12784, May 15, 1973, as amended at 42
trol of pollution. FR 56057, Oct. 20, 1977]
FR 56056, Oct. 20, 1977] § 40.115–6 State.
(a) Under the Federal Water Pollu-
§ 40.115–4 Municipality.
tion Control Act, a State, the District
(a) Under the Federal Water Pollu- of Columbia, the Commonwealth of
tion Control Act, a city, town, bor- Puerto Rico, the Virgin Islands, Guam,
ough, county, parish, district, associa- American Samoa, and the Trust Terri-
tion, or other public body created by or tory of the Pacific Islands.
pursuant to State law, or an Indian (b) Under the Resource Conservation
tribe or an authorized Indian tribal or- and Recovery Act, a State, the District
ganization, with jurisdiction over dis- of Columbia, the Commonwealth of
posal of sewage, industrial wastes, or Puerto Rico, the Virgin Islands, Guam,
other wastes; or a designated and ap- American Samoa, and the Common-
proved management agency under sec- wealth of the Northern Mariana Is-
tion 208 of the act. lands.
(b) Under the Resource Conservation (c) In all other cases, a State, the
and Recovery Act, a city, town, bor- District of Columbia, the Common-
ough, county, parish, district, or other
wealth of Puerto Rico, the Virgin Is-
public body created by or pursuant to
lands, Guam and American Samoa.
State law, with responsibility for the
planning or administration of solid [42 FR 56057, Oct. 20, 1977]
626
§ 40.120 Publication of EPA research of the Act. The Federal share for any
objectives. grant for the construction of new or
The Office of Research and Develop- improved solid waste disposal facilities
ment of EPA publishes a statement of shall not exceed 50 percent in the case
research objectives and priorities an- of a project serving an area which in-
nually in a document entitled ‘‘Office cludes only one municipality and 75
of Research and Development—Pro- percent in any other case, and is sub-
gram Guide.’’ This document may be ject to the limitations contained in
obtained from either the Office of Re- section 8006(c) of the Act. Not more
search and Development, RD–674, or than 15 percent of the total funds au-
the Grants Administration Division, thorized to be appropriated for any fis-
PM–216, U.S. Environmental Protec- cal year to carry out this section shall
tion Agency, Washington, DC 20460. be awarded for projects in any one
State.
[42 FR 56057, Oct. 20, 1977]
§ 40.125 Grant limitations. FR 20083, May 8, 1977; 42 FR 56057, Oct. 20,
1977]
§ 40.125–1 Limitations on duration.
§ 40.130 Eligibility.
(a) No research or demonstration
grant shall be approved for a budget pe- Except as otherwise provided below,
riod in excess of 2 years except dem- grants for research and demonstration
onstration grants involving construc- projects may be awarded to any respon-
tion. sible applicant in accordance with 40
(b) No research or demonstration CFR 30.340:
grant shall be approved for a project (a) The Clean Air Act, as amended—
period in excess of 5 years. public or nonprofit private agencies,
(c) The grant award official may ex- institutions, organizations, and to indi-
tend the budget and project periods for viduals.
up to an additional 12 months without (b) Resource Conservation and Recov-
additional grant funds, when such ex- ery Act.
tensions are in the best interest of the (1) Section 8001, public authorities,
Government. agencies, and institutions; private
agencies and institutions; and individ-
[42 FR 56057, Oct. 20, 1977] uals.
(2) Sections 8004 and 8005, public
§ 40.125–2 Limitations on assistance. agencies and authorities or private per-
In addition to the cost-sharing re- sons.
quirements pursuant to 40 CFR 30.720, (3) Section 8006, State, municipal,
research and demonstration grants interstate or intermunicipal agencies.
shall be governed by the specific assist- (4) No grant may be made under this
ance limitations listed below: Act to any private profit-making orga-
(a) Federal Water Pollution Control nization.
Act. (1) Section 104(s)—no grant in any (c) The Federal Insecticide, Fun-
fiscal year may exceed $1 million. gicide, and Rodenticide Act, as amend-
(2) Sections 105 (a), (c) and 108—no ed—other Federal agencies, univer-
grant may exceed 75 percent of the al- sities, or others as may be necessary to
lowable actual project costs. carry out the purposes of the act.
(b) Clean Air Act. (1) Section 104—no (d) The Federal Water Pollution Con-
grant may exceed $1,500,000. trol Act, as amended:
(2) [Reserved] (1) Section 104(b)—State water pollu-
(c) Resource Conservation and Recovery tion control agencies, interstate agen-
Act. (1) Sections 8001, 8004, and 8005. cies, other public or nonprofit private
The maximum practicable cost sharing agencies, institutions, organizations,
is required. and to individuals.
(2) Section 8006. The Federal share (2) Sections 104 (h) and (i)—public or
for any grant for the demonstration of private agencies and organizations and
resource recovery systems shall not ex- to individuals.
ceed 75 percent and is subject to the (3) Section 104(r)—colleges and uni-
conditions contained in section 8006(b) versities.
627
§ 40.135 40 CFR Ch. I (7–1–00 Edition)
(4) Section 104(s)—institutions of (a) Applications involving human sub-

higher education. jects. (1) Safeguarding the rights and
(5) Sections 105 (a), (e)(2), and 107— welfare of human subjects involved in
State, municipal, interstate, and inter- projects supported by EPA grants is
municipal agencies. the responsibility of the institution
(6) Section 195(b)—State or States or which receives or is accountable to
interstate agency. EPA for the funds awarded for the sup-
(7) Sections 105 (c) and (e)(1)—per- port of the project.
sons. (2) Institutions must submit to EPA,
(8) Section 108—State, political sub- for review, approval, and official ac-
division, interstate agency, or other ceptance, a written assurance of its
public agency, or combination thereof. compliance with guidelines established
(9) Section 113—only to the State of by Department of Health, Education,
Alaska. and Welfare concerning protection of
(e) The Public Health Service Act, as human subjects. However, institutions
amended—only to nonprofit agencies, which have submitted and have had ac-
institutions, organizations, and to indi- cepted, general assurance to DHEW
viduals. under these guidelines will be consid-
ered as being in compliance with this
FR 20083, May 8, 1975; 42 FR 56057, Oct. 20, requirement. These guidelines are pro-
1977] vided in DHEW Publication No. (NIH)
72–102, the ‘‘Institutional Guide to
§ 40.135 Application. DHEW Policy on Protection of Human
Subjects.’’ Copies of this publication
§ 40.135–1 Preapplication coordination. are available from the Superintendent
(a) All applicants. (1) Applicants for of Documents, U.S. Government Print-
research and demonstration grants are ing Office, Washington, DC 20420.
encouraged to contact EPA for further (3) Applicants must provide with
information and assistance prior to each proposal involving human sub-
submitting a formal application. The jects a certification that it has been or
EPA regional office or the laboratory will be reviewed in accordance with the
nearest the applicant will be able to institution’s assurance. This certifi-
provide such assistance or to refer the cation must be renewed annually on
applicant to an appropriate EPA rep- the basis of continuing review of the
resentative. supported project.
(2) Applicants shall prepare an envi- (b) Applications involving laboratory
ronmental assessment of the proposed animals. Each application for a project
project where applicable, outlining the involving the use of warmblooded ani-
anticipated impact on the environment mals shall include a written assurance
pursuant to 40 CFR part 6. that the applicant has registered with
(b) Applications for grants for dem- the Department of Agriculture and is
onstration projects funded by the Of- in compliance with the rules, regula-
fice of Solid Waste will be solicited tions, and standards enunciated in the
through the Department of Commerce Animal Welfare Act, Public Law 89–554,
Business Daily, and selections will be as amended.
made on a competitive basis. (c) Notice of research project (NRP).
[38 FR 12784, May 15, 1973, as amended at 41 Each application for research must in-
FR 20659, May 20, 1976; 42 FR 56057, Oct. 20, clude a summary (NRP) of proposed
1977; 48 FR 29302, June 24, 1983] work (200 words or less) incorporating
objectives, approach and current plans
§ 40.135–2 Application requirements. and/or progress. Upon approval of an
All applications for research and application, summaries are forwarded
demonstration grants shall be sub- to the Smithsonian Science Informa-
mitted in an original and 8 copies to tion Exchange. Summaries of work in
the Environmental Protection Agency, progress are exchanged with govern-
Grants Administration Division, Wash- ment and private agencies supporting
ington, DC 20460, in accordance with research and are forwarded to inves-
§§ 30.315 through 30.315–3. tigators who request such information.
628
(d) Federal Water Pollution Control (i) The existence and extent of local
Act. (1) All applications for grants public support for the project;
under section 105(a) must have been ap- (j) Whether the proposed project is
proved by the appropriate State water environmentally sound;
pollution control agency or agencies. (k) Proposed cost sharing.
(2) All applications for grants under
section 107, where the proposed project § 40.140–2 [Reserved]
will be located in the Appalachian re-
gion, shall have been coordinated with § 40.140–3 Federal Water Pollution
the Appalachian Regional Commission Control Act.
for determination that such dem-
(a) All applications for grants under
onstration project is consistent with
section 105(c) must provide evidence
the objectives of the Appalachian Re-
gional Development Act of 1965, as that the proposed project will con-
amended. tribute to the development or dem-
(e) Intergovernmental review. EPA will onstration of a new or improved meth-
not award funds under this subpart od of treating industrial wastes or oth-
without review and consultation, if ap- erwise preventing pollution by indus-
plicable, in accordance with the re- try, which method shall have industry-
quirements of Executive Order 12372, as wide application;
implemented in 40 CFR part 29 of this (b) All applications for grants under
chapter. section 113 must include provisions for
[38 FR 12784, May 15, 1973, as amended at 40 community safe water supply systems,
FR 20083, May 8, 1975; 42 FR 56057, Oct. 20, toilets, bathing and laundry facilities,
1977; 48 FR 29302, June 24, 1983] sewage disposal facilities and programs
relating to health and hygiene. Such
§ 40.140 Criteria for award. projects must also be for the further
In determining the desirability and purpose of developing preliminary
extent of funding for a project and the plans for providing such safe water and
relative merit of an application, con- such elimination or control of water
sideration will be given to the fol- pollution for all native villages in the
lowing criteria: State of Alaska.
§ 40.140–1 All applications. § 40.145 Supplemental grant condi-
(a) The relevancy of the proposed tions.
project to the objectives of the EPA re- In addition to the EPA general grant
search and demonstration program; conditions (40 CFR part 30, subpart C),
(b) The availability of funds within
all grants are awarded subject to the
EPA;
following requirements:
(c) The technical feasibility of the
project; (a) The project will be conducted in
(d) The seriousness, extent, and ur- an environmentally sound manner.
gency of the environmental problems (b) In addition to the notification of
toward which the project is directed; project changes required pursuant to 40
(e) The anticipated public benefits to CFR 30.900, prior written approval by
be derived from the project in relation the grants officer is required for
to the costs of the project; project changes which may (1) alter the
(f) The competency of the applicant’s approved scope of the project, (2) sub-
staff and the adequacy of the appli- stantially alter the design of the
cant’s facilities and available re- project, or (3) increase the amount of
sources; Federal funds needed to complete the
(g) The degree to which the project project. No approval or disapproval of a
can be expected to produce results that project change pursuant to 40 CFR
will have general application to pollu- 30.900 or this section shall commit or
tion control problems nationwide; obligate the United States to an in-
(h) Whether the project is consistent
crease in the amount of the grant or
with existing plans or ongoing plan-
payments thereunder, but shall not
ning for the project area at the State,
preclude submission or consideration of
regional, and local levels;
629
§ 40.145–1 40 CFR Ch. I (7–1–00 Edition)
a request for a grant amendment pur- grants officer finds sufficient to assure
suant to 40 CFR 30.900–1. their undisturbed utilization of the
project for the estimated life of the
FR 20083, May 8, 1975] project.
(b) Invitations for bids or requests for
§ 40.145–1 Resource Conservation and proposals shall be based upon a clear
Recovery Act. and accurate description of the tech-
Programs for which a Federal grant nical requirements for the material,
is awarded by the Environmental Pro- product, or service to be procured.
tection Agency to a State, municipal, Such description shall not, in competi-
interstate or intermunicipal agency, or tive procurements, contain features
to any public authority, agency or in- which unduly restrict competition.
stitution, under the Resource Con- ‘‘Brand name or equal’’ description
servation and Recovery Act, shall be may be used as a means to define the
the subject of public participation con- performance or other salient require-
sistent with part 249 of this chapter. ments of a procurement, and when so
used the specific features of the named
[42 FR 56057, Oct. 20, 1977] brand which must be met by offerors
should be clearly specified.
§ 40.145–2 Federal Water Pollution (c) Positive efforts shall be made by
Control Act. the grantees to utilize small business
(a) No person in the United States and minority-owned business sources of
shall on the ground of sex be excluded supplies and services.
from participation in, be denied the (d) Subagreements for construction
benefits of, or be subjected to discrimi- work may be negotiated when adver-
nation under any program or activity tising for competitive bids is not fea-
receiving assistance under the Act. sible; however, the grantee must ade-
(b) Grants under section 107 are quately demonstrate its need to con-
awarded subject to the conditions— tract with a single or sole source. All
(1) That the State shall acquire any such subagreements are subject to
land or interests therein necessary for prior approval by the grants officer.
such project to assure the elimination (e) Construction work will be per-
or control of acid or other mine water formed by the fixed-price (lump sum)
pollution; and or fixed-rate (unit price) method, or a
(2) That the State shall provide legal combination of these two methods, un-
and practical protection to the project less the grants officer gives advance
area to insure against any activities written approval to use some other
which will cause future acid or other method of contracting. The cost-plus-a-
mine water pollution. percentage-of-cost method of con-
tracting shall not be used. Adequate
§ 40.145–3 Projects involving construc- methods of advertising for and obtain-
tion. ing competitive sealed bids will be em-
Research and demonstration grants ployed prior to award of the construc-
for projects involving construction tion contract. The award of the con-
shall be subject to the following condi- tract will be made to the responsible
tions: bidder submitting the lowest respon-
(a) The applicant will demonstrate to sive bid, which shall be determined
the satisfaction of the grants officer without regard to State or local law
that he has or will have a fee simple or whereby preference is given on factors
such other estate or interest in the site other than the specification require-
of the project, and rights of access, as ments and the amount of bid. The
the grants officer finds sufficient to as- grantee must promptly transmit to the
sure undisturbed use and possession for grants officer copies of bid protests, de-
the purpose of construction and oper- cisions on such protests, and related
ation for the estimated life of the correspondence. The grants officer will
project; and in the case of projects cause appropriate review of grantee
serving more than one municipality, procurement methods to be made.
that the participating communities (f) On construction contracts exceed-
have such interests or rights as the ing $100,000, each bidder must furnish a
630
bid guarantee equivalent to 5 percent § 40.150 Evaluation of applications.

of the bid price. In addition, the con-
Every application for a research or
tractor awarded the contract must fur-
demonstration grant will be evaluated
nish performance and payment bonds,
each of which shall be in an amount by appropriate EPA staff in terms of
not less than 100 percent of the con- relevancy and the applicable criteria
tract price. Construction contracts less set forth in § 40.140. Only applications
than $100,000 shall follow the State or considered relevant to EPA research
local requirements relating to bid and demonstration objectives will re-
guarantees, performance bonds, and ceive further consideration and be sub-
payment bonds. jected to additional review. Relevancy
(g) The construction of the project, will be measured by program needs and
including the letting of contracts in priorities as defined in the Agency’s
connection therewith, shall conform to current planned objectives. Relevancy,
the applicable requirements of State, coupled with the results of technical
territorial, and local laws and ordi- review, will provide the basis for fund-
nances to the extent that such require- ing recommendations.
ments do not conflict with Federal (a) New applications. Applications
laws. considered relevant to EPA research
(h) The grantee will provide and and demonstration objectives will be
maintain competent and adequate en- reviewed for technical merit by at
gineering supervision and inspection least one reviewer within EPA and at
for the project to insure that the con- least two reviewers outside EPA. Re-
struction conforms with the approved view by a National Advisory Council is
plans and specifications. statutorily required for radiation
(i) Any construction contract must grants.
provide that representatives of the En- (b) Continuation applications. Continu-
vironmental Protection Agency and ation applications will be reviewed by
the State, as appropriate, will have ac- appropriate EPA staff only. Rec-
cess to the work whenever it is in prep- ommendations for continuation of
aration or progress and that the con- funding will be based on progress to-
tractor will provide proper facilities ward the accomplishment of the goals
for such access and inspection. The set forth for the project and continued
contract must also provide that the Agency needs and priorities.
grants officer, the Comptroller General
of the United States, or any authorized § 40.155 Availability of information.
representative shall have access to any
books, documents, papers, and records (a) The availability to the public of
of the contractor which are pertinent information provided to, or otherwise
to the project for the purpose of mak- obtained by, the Administrator under
ing audit, examination, excerpts, and this part shall be governed by part 2 of
transcriptions thereof. this chapter.
(j) The grantee agrees to construct (b) An assertion of entitlement to
the project or cause it to be con- confidential treatment of part or all of
structed in accordance with the appli- the information in an application may
cation, plans and specifications, and be made using the procedure described
subagreements approved by EPA in the in § 30.235(b). See also §§ 2.203 and 2.204
grant agreement or amendments. of this chapter.
(k) In addition to the notification of (c) All information and data con-
project changes pursuant to 40 CFR tained in the grant application will be
30.900, a copy of any construction con- subject to external review unless devi-
tract or modifications thereof, and of ation is approved for good cause pursu-
revisions to plans and specifications ant to 40 CFR 30.1000.
must be submitted to the grants offi-
cer. [38 FR 12784, May 15, 1973, as amended at 40
FR 20083, May 8, 1975; 41 FR 36918, Sept. 1,
[38 FR 12784, May 15, 1973, as amended at 40 1976]
FR 20083, May 8, 1975]
631
§ 40.160 40 CFR Ch. I (7–1–00 Edition)
§ 40.160 Reports. sition cost of $300 or more and having a

useful life of more than 1 year.
§ 40.160–1 Progress reports.
§ 40.160–5 Final report.
The grant agreement will normally
require the submission of a brief The grantee shall submit a draft of
progress report after the end of each the final report for review no later
quarter of the budget period. A month- than 90 days prior to the end of the ap-
ly progress report may be required for proved project period. The report shall
some demonstration projects, if set document project activities over the
forth in the grant agreement. Progress entire period of grant support and shall
reports should fully describe in chart describe the grantee’s achievements
or narrative format the progress with respect to stated project purposes
achieved in relation to the approved and objectives. The report shall set
schedule and project milestones. Spe- forth in complete detail all technical
cial problems or delays encountered aspects of the projects, both negative
must be explained. A summary and positive, grantee’s findings, con-
progress report covering all work on clusions, and results, including, as ap-
the project to date is required to be in- plicable, an evaluation of the technical
cluded with applications for continu- effectiveness and economic feasibility
ation grants (see § 40.165b). This report of the methods or techniques inves-
may be submitted one quarter prior to tigated or demonstrated. The final re-
the end of the budget period. port shall include EPA comment when
required by the grants officer. Prior to
§ 40.160–2 Financial status report. the end of the project period, one re-
producible copy suitable for printing
A financial status report must be
and such other copies as may be stipu-
prepared and submitted within 90 days
lated in the grant agreement shall be
after completion of the budget and
transmitted to the grants officer.
project periods in accordance with
§ 30.635–3. § 40.165 Continuation grants.
[42 FR 56057, Oct. 20, 1977] To be eligible for a continuation
grant within the approved project pe-
§ 40.160–3 Reporting of inventions. riod, the grantee must:
As provided in appendix B of 40 CFR (a) Have demonstrated satisfactory
part 30, immediate and full reporting of performance during all previous budget
all inventions to the Environmental periods; and
Protection Agency is required. In addi- (b) Submit no later than 90 days prior
tion: to the end of the budget period a con-
(a) An annual invention statement is tinuation application which includes a
required with each continuation appli- detailed summary progress report, an
cation. estimated financial statement for the
(b) A final invention report is recurrent budget period, a budget for the
quired within 90 days after completion new budget period; and an updated
of the project period. work plan revised to account for actual
(c) When a principal investigator progress accomplished during the cur-
changes institutions or ceases to direct rent budget period.
a project, an invention statement must
be promptly submitted with a listing of PART 45—TRAINING ASSISTANCE
all inventions during his administra-
tion of the grant. Sec.
45.100 Purpose and scope.
[38 FR 12784, May 15, 1973, as amended at 40 45.105 Authority.
FR 20083, May 8, 1975] 45.110 Objectives.
45.115 Definitions.
§ 40.160–4 Equipment report. 45.120 Applicant eligibility.
45.125 Application requirements.
At the completion or termination of 45.130 Evaluation of applications.
a project, the grantee will submit a 45.135 Supplemental conditions.
listing of all items of equipment ac- 45.140 Budget and project period.
quired with grant funds with an acqui- 45.145 Allocability and allowability of costs.
632
45.150 Reports. and local environmental control per-
45.155 Continuation assistance. sonnel;
APPENDIX A TO PART 45—ENVIRONMENTAL (d) Train people to train others in oc-
PROTECTION AGENCY TRAINING PROGRAMS cupations involving pollution abate-
AUTHORITY: Sec. 103 of the Clean Air Act, ment and control; and
as amended (42 U.S.C. 7403), secs. 104(g), 109, (e) Bring new people into the envi-
and 111 of the Clean Water Act, as amended ronmental control field.
(33 U.S.C. 1254(g), 1259, and 1261), secs. 7007
and 8001 of the Solid Waste Disposal Act, as § 45.115 Definitions.
amended (42 U.S.C. 6977 and 6981); sec. 1442 of The following definitions supplement
the Safe Drinking Water Act, as amended (42 the definitions in 40 CFR 30.200.
U.S.C. 300j–1).
Stipend. Supplemental financial as-
SOURCE: 49 FR 41004, Oct. 18, 1984, unless sistance, other than tuition and fees,
otherwise noted. paid directly to the trainee by the re-
cipient organization.
§ 45.100 Purpose and scope. Trainee. A student selected by the re-
This part establishes the policies and cipient organization who receives sup-
procedures for the award of training as- port to meet the objectives in § 45.110.
sistance by the Environmental Protec-
tion Agency (EPA). The provisions of § 45.120 Applicant eligibility.
this part supplement EPA’s ‘‘General Institutions, organizations, and indi-
Regulation for Assistance Programs,’’ viduals are eligible for EPA training
40 CFR part 30. awards as follows:
(a) Clean Air Act. Section 103(b)—Air
§ 45.105 Authority. pollution control agencies, public and
The EPA is authorized to award nonprofit private agencies, institu-
training assistance under the following tions, organizations, and individuals.
statutes: No award may be made under this Act
(a) Section 103 of the Clean Air Act, to any private, profitmaking organiza-
as amended (42 U.S.C. 7403); tion.
(b) Sections 104(g), 109, and 111 of the (b) Clean Water Act. (1) Section
Clean Water Act, as amended (33 U.S.C. 104(b)(3)—State water pollution control
1254(g), 1259, and 1261); agencies, interstate agencies, other
(c) Sections 7007 and 8001 of the Solid public or nonprofit private agencies,
Waste Disposal Act, as amended (42 institutions, organizations, and indi-
U.S.C. 6977 and 6981); viduals. No award may be made to any
private, profitmaking organization.
(d) Section 1442 of the Safe Drinking
(2) Section 104(g)(3)(A)—Public or pri-
Water Act, as amended (42 U.S.C. 300j–
vate agencies and institutions, and in-
1).
dividuals.
§ 45.110 Objectives. (3) Sections 104(g)(1) and 104(g)(3)(C)—
State and interstate agencies, munici-
Assistance agreements are awarded palities, educational institutions and
under this part to support students other organizations and individuals.
through traineeships for occupational (4) Sections 109, 110, and 111—Institu-
and professional training, and to de- tions of higher education, or combina-
velop career-oriented personnel quali- tions of such institutions.
fied to work in occupations involving (c) Solid Waste Disposal Act. (1) Sec-
environmental protection and pollution 8001(a)—Public or private authori-
tion abatement and control. Training ties, agencies, and institutions and in-
assistance is available to: dividuals. No award may be made to
(a) Assist in developing, expanding, any private, profitmaking organiza-
planning, implementing, and improv- tion.
ing environmental training; (2) Section 7007(a)—State or inter-
(b) Increase the number of trained state agencies, municipalities, edu-
pollution control and abatement per- cational institutions, and other organi-
sonnel; zations.
(c) Upgrade the level of occupational (d) Safe Drinking Water Act. Sections
and professional training among State 1442(b) and 1442(d)—Public agencies,
633
§ 45.125 40 CFR Ch. I (7–1–00 Edition)
educational institutions, and other or- sessions, or lawfully admitted to the

ganizations. No awards may be made to United States for permanent residence.
profitmaking agencies or institutions. (b) Recipients shall not require the
performance of personal services by in-
§ 45.125 Application requirements. dividuals receiving training as a condi-
Applicants must submit their re- tion for assistance.
quests for assistance on EPA Form (c) Trainees are entitled to the nor-
5700–12, ‘‘Application for Federal As- mal student holidays observed by an
sistance.’’ Applicants must submit the academic institution, or the holiday
original and two copies of the applica- and vacation schedule applicable to all
tion to EPA. If the assistance agree- trainees at a nonacademic institution.
ment is to be awarded by EPA Head- (d) Training awards may include a
quarters, the applicant must send the provision to pay stipends to trainees.
application to the Environmental Pro- Stipends must be paid under section 111
tection Agency, Grants Administration of the Clean Water Act consistent with
Division, Grants Operation Branch prevailing practices under comparable
(PM–216), 401 M Street SW., Wash- federally supported programs.
ington, DC 20460. If the assistance (e) Training awards under section 111
agreement is to be awarded by an EPA of the Clean Water Act are subject to
Regional Office, the applicant must the following conditions:
send the application to the appropriate (1) Recipients must obtain the fol-
Regional Office. lowing agreement in writing from per-
(Approved by the Office of Management and sons awarded scholarships for under-
Budget under control number 2010–0004) graduate study of the operation and
maintenance of treatment works:
§ 45.130 Evaluation of applications.
I agree to enter and remain in an occupa-
(a) Consistent with 40 CFR 30.301, the tion involving the design, operation, or
appropriate EPA program office staff maintenance of wastewater treatment works
will review training applications in ac- for a period of two years after the satisfac-
cordance with the following criteria: tory completion of my studies under this
(1) Relevance of proposal to Agency program. I understand that if I fail to per-
objectives, priorities, achievement of form this obligation I may be required to
national goals and technical merit; repay the amount of my scholarship.
(2) Competency of the proposed staff (2) Recipients must take such action
in relation to the type of project pro- as may be reasonably required to en-
posed; force the condition in paragraph (e)(1)
(3) Feasibility of the proposal; of this section. Recipients shall credit
(4) Adequacy of the applicant’s re- or pay EPA for any repayments.
sources available for the project;
(5) Amount of funds necessary for the § 45.140 Budget and project period.
completion of the project;
(b) In addition, awards under section The budget and project periods for
104(g)(1) of the Clean Water Act, are training awards may not exceed three
subject to the following criteria: years.
(1) Assessment of need for training in
§ 45.145 Allocability and allowability of
a State or municipality based on prob- costs.
lems with existing wastewater treat-
ment plants, such as violation of dis- (a) Allocability and allowability of
charge permit conditions, and faulty or costs will be determined in accordance
improper operation or maintenance. with 40 CFR 30.410.
(2) Need for operating training based (b) Costs incurred for the purchase of
on the number of wastewater treat- land or the construction of buildings
ment construction grants in the State. are not allowable.
§ 45.135 Supplemental conditions. § 45.150 Reports.

Training awards are subject to the (a) Recipients must submit the re-
following conditions: ports required in 40 CFR 30.505.
(a) Trainees must be citizens of the (b) A draft of the final project report
United States, its territories, or pos- is required 90 days before the end of the
634
project period. The recipient shall pre- 46.135 Submission of applications.

pare the final projects report in accord- 46.140 Evaluation of applications.
ance with the project officer’s instruc- 46.145 Fellowship agreement.
tions, and submit the final project re- 46.150 Fellowship agreement amendment.
46.155 Supplemental conditions.
port within 30 days after the end of the 46.160 Acceptance of fellowship award.
project period. 46.165 Duration of fellowship.
46.170 Initiation of studies.
§ 45.155 Continuation assistance. 46.175 Completion of studies.
To be eligible for continuation assist- 46.180 Payment.
ance, the recipient must: APPENDIX A TO PART 46—ENVIRONMENTAL
(a) Demonstrate satisfactory per- PROTECTION AGENCY FELLOWSHIP PRO-
formance during all previous budget GRAMS
periods; AUTHORITY: Sec. 103(b)(5) of the Clean Air
(b) Include in the application a de- Act as amended, (42 U.S.C. 7403(b)(5)); secs.
tailed progress report showing the 104(b)(5) and (g)(3)(B) of the Clean Water Act,
progress achieved and explain special as amended (33 U.S.C. 1254(b)(5) and
problems or delays, a budget for the (g)(3)(B)); sec. 1442(d)(2) of the Safe Drinking
new budget period, and a detailed work Water Act, as amended, (42 U.S.C. 300j-
plan for the new budget period; and 1(d)(2)); and sec. 8001 of the Solid Waste Dis-
posal Act, as amended (42 U.S.C. 6981).
(c) Submit a preliminary financial
statement for the current budget pe- SOURCE: 49 FR 41006, Oct. 18, 1984, unless
riod that includes estimates of the otherwise noted.
amount the recipient expects to spend
by the end of the current budget period § 46.100 Purpose.
and the amount of any uncommitted This part establishes the policies and
funds which the recipient proposes to procedures for all Environmental Pro-
carry over beyond the term of the cur- tection Agency (EPA) fellowships and
rent budget period. supplements the requirements in 40
CFR part 30, ‘‘General Regulation for
APPENDIX A TO PART 45—ENVIRON- Assistance Programs.’’
MENTAL PROTECTION AGENCY TRAIN-
ING PROGRAMS § 46.105 Authority.
Administering office The EPA is authorized to award fel-
lowships under the following statutes:
Headquarters Regional
(a) Section 103(b)(5) of the Clean Air
Office of Air, Noise, and Radi- Act as amended (42 U.S.C. 7403(b)(5));
ation: (b) Section 104(b)(5) and (g)(3)(B) of
Air Pollution Control Man- X
power Training Grants.
the Clean Air Act, as amended (33
Air Pollution Control—Tech- X U.S.C. 1254(b)(5) and (g)(3)(B);
nical Training. (c) Section 1442(d)(2) of the Safe
Office of Water:
Water Pollution Control— X X
Drinking Water Act, as amended (42
Professional Training U.S.C. 300j-1(d)(2); and
Grants. (d) Section 8001 of the Solid Waste
Safe Drinking Water Pro- X Disposal Act as amended (42 U.S.C.
fessional Training Grants.
Safe Drinking Water—Oc- X 6981).
cupational Training.
Office of Solid Waste and X § 46.110 Objectives.
Emergency Response:
Hazardous Waste Training. Fellowships awarded under this part
are intended to enhance the capability
of State or local agencies responsible
PART 46—FELLOWSHIPS for environmental pollution control or
other agencies with similar pollution
Sec. control responsibilities; provide edu-
46.100 Purpose. cational renewal opportunities for
46.105 Authority. their career oriented personnel to
46.110 Objectives.
46.115 Types of fellowships. achieve additional knowledge through
46.120 Definitions. academic professional training; and to
46.125 Benefits. bring new people into the environ-
46.130 Eligibility. mental control field.
635
§ 46.115 40 CFR Ch. I (7–1–00 Edition)
§ 46.115 Types of fellowships. and fees. Recipients may receive an al-

(a) Local agency fellowships are award- lowance for books and supplies up to a
ed to current or prospective employees maximum of $750 for the school year
of a local environmental pollution con- for a full-time fellow, and are entitled
trol or regulatory agency for academic to the normal student holidays ob-
professional training in pollution con- served by the academic institution.
trol science, engineering, and tech- (b) Recipients of a fellowships may
nology and in specialty areas sup- receive a stipend at a level determined
portive of pollution abatement and by the EPA program office based on
control efforts. EPA’s needs and resources, and on the
(b) State agency fellowships are award- student’s course load.
ed to current or prospective employees (c) Part-time fellows will not be paid
of a State environmental pollution more than the maximum amount paid
control or regulatory agency to provide to an equivalent full-time fellow under
academic professional training in the the same fellowships program.
areas of pollution abatement and con-
trol. § 46.130 Eligibility.
(c) Special fellowships are awarded to (a) All applicants for fellowships
individuals for education and training under this part must be:
in pollution control science, engineer- (1) Citizens of the United States, its
ing, and technology and in specialty territories, or possessions, or lawfully
areas supportive of pollution abate- admitted to the United States for per-
ment and control efforts. manent residence; and
§ 46.120 Definitions. (2) Accepted by an accredited edu-
cational institutional for full-time or
The following definitions supplement part-time enrollment for academic
the definitions in 40 CFR 30.200. credit in an educational program di-
Full-time fellow. An individual en- rectly related to pollution abatement
rolled in an academic educational pro- and control.
gram directly related to pollution
(b) Applicants for State or local
abatement and control, and taking a
agency fellowships must be current or
minumum of 30 credit hours or an aca-
prospective employees of a State or
demic workload otherwise defined by
local agency with responsibilities for
the institution as a full-time cur-
environmental pollution control, and
riculum for a school year. The fellow
must be recommended by the adminis-
need not be pursuing a degree.
Part-time fellow. An individual en- trator, or designee, of the State or
rolled in an academic educational pro- local agency. The administrator, or
gram directly related to pollution designee, will recommend applicants
abatement and control and taking at based on the State or local need for
least 6 credit hours but less than 30 academic professional training which
credit hours per school year, or an aca- will enhance the capability of the
demic workload otherwise defined by State or local agency.
the institution as less than a full-time
§ 46.135 Submission of applications.
curriculum. The fellow need not be pur-
suing a degree. (a) Applicants must submit their re-
Special fellow. An individual enrolled quests for assistance on EPA Form
in an educational program relating to 5770–2, ‘‘Fellowship Application.’’ Ap-
environmental sciences, engineering, plicants must submit the original and
professional schools, and allied two copies of the application and un-
sciences. dergraduate or graduate transcripts, as
Stipend. Supplemental financial as- appropriate, to the Grants Administra-
sistance other than tuition, fees, and tion Division, Grants Operation Branch
book allowance, paid directly to the (PM–216), Environmental Protection
fellow. Agency, 401 M Street SW., Washington,
DC, 20460.
§ 46.125 Benefits. (b) The applicant must submit docu-
(a) Recipients of assistance under mentation to show compliance with
this part shall be entitled to tuition the eligibility requirements in § 46.130,
636
and any additional information re- (b) Fellows must submit a completed
quired by the award official. Instruc- EPA Form 5770–6, ‘‘Fellowship Amend-
tions for filing are contained in the ap- ment’’ when requesting an amendment
plication kit. to the fellowship agreement.
(Information collection requirements in (c) Minor changes in the agreement
paragraph (a) were approved by the Office of that are consistent with the objective
Management and Budget under control num- of the agreement and within the scope
ber 2010–0004) of the agreement do not require a for-
mal amendment before the fellow im-
§ 46.140 Evaluation of applications. plements the change. However, such
(a) EPA will evaluate fellowship ap- changes do not obligate EPA to provide
plications based upon: Federal funds for any costs incurred by
(1) Their relevance to EPA’s program the fellow in excess of the assistance
needs; amount unless the award official ap-
(2) The availability of funds; proves the change in advance under
(3) EPA’s priorities; § 46.150(a). The fellow must inform the
(4) Appropriateness of the fellow’s EPA project officer in writing before
proposed course of study; and implementing minor changes.
(5) Evaluation of the applicant in
(Information collection requirements in
terms of potential for study, as evi-
paragraph (b) were approved by the Office of
denced by academic record, letters of Management and Budget under control num-
reference, training plans; and any ber 2010–0004)
other available information.
(b) [Reserved] § 46.155 Supplemental conditions.
§ 46.145 Fellowship agreement. Recipients of a State or local fellow-
ship receiving financial assistance
(a) The fellowship agreement is the
under section 1442(d)(2) of the Safe
written agreement, including amend-
Drinking Water Act, as amended; sec-
ments, between EPA and a fellow. The
tions 104 (b)(5) and (g)(3)(B) of the
agreement, EPA Form 5770–8, ‘‘Fellow-
Clean Water Act as amended; and sec-
ship Agreement,’’ will state the terms
tion 8001 of the Solid Waste Disposal
and conditions governing the fellow-
Act must agree to remain in the em-
ship.
ployment of the State or local agency
(b) EPA will not participate in costs
that recommended the recipient for an
incurred by the fellow before both the
EPA fellowship for twice the period of
award official and the fellow sign the
the fellowship. If the recipient fails to
agreement.
perform this obligation the recipient
(c) The fellow must use the funds for
may be required to repay the amount
the purposes stated in the fellowship
of the EPA fellowship.
agreement. If the fellow fails to comply
with the terms and conditions of the § 46.160 Acceptance of fellowship
award, the award official may apply award.
the sanctions in 40 CFR part 30, sub-
part I. The applicant accepts the fellowship
by signing and returning the fellowship
(Information collection requirements in agreement to the EPA award official
paragraph (a) were approved by the Office of within three weeks after receipt, or
Management and Budget under control num-
ber 2010–0004)
within any extension of such time that
may be permitted by the EPA award
§ 46.150 Fellowship agreement amend- official. If the applicant does not sign
ment. and return the agreement to the award
(a) The fellow must receive a formal official or request an extension of the
amendment before implementing: acceptance time within three calendar
(1) Changes in the objective of the weeks after receiving the agreement,
agreement; the offer is null and void.
(2) Changes in the assistance amount;
(3) Substantial changes within the § 46.165 Duration of fellowship.
scope of the agreement; or (a) Full-time fellowships will not ex-
(4) Changes in the project period. ceed one year.
637
§ 46.170 40 CFR Ch. I (7–1–00 Edition)
(b) Part-time fellowships will not ex- Administering office

ceed three years. Headquarters Regional
§ 46.170 Initiation of studies. Office of Research and De- X

velopment: Interdisciplinary
(a) The fellow must submit EPA 5770– Fellowships.
7 ‘‘Fellowship Activation Notice’’ when Office of Solid Waste and X
they start their course of studies. Emergency Response:
Hazardous Waste Fellow-
(b) If the EPA Grants Administration ships.
Division has not received the signed
Fellowship Activation Notice within
six months following the date of the PART 47—NATIONAL ENVIRON-
award, EPA may terminate the fellow- MENTAL EDUCATION ACT
ship. GRANTS
(Information collection requirements in
paragraph (a) were approved by the Office of Sec.
Management and Budget under control num- 47.100 Purpose and scope.
ber 2010–0004) 47.105 Definitions.
47.110 Eligible applicants.
§ 46.175 Completion of studies. 47.115 Award amount and matching require-
Fellows must submit EPA Form 5770– ments.
9 ‘‘EPA Fellowship Termination No- 47.120 Solicitation notice and proposal pro-
cedures.
tice,’’ when the fellow completes the
47.125 Eligible and priority projects and ac-
course of study. tivities.
(Approved by the Office of Management and 47.130 Performance of grant.
Budget under control number 2010–0004) 47.135 Disputes.
AUTHORITY: 20 U.S.C. 5505.
§ 46.180 Payment.
SOURCE: 57 FR 8390, Mar. 9, 1992, unless oth-
(a) EPA will pay stipends directly to
erwise noted.
the fellow on a monthly basis or any
other basis approved by the Project Of- § 47.100 Purpose and scope.
ficer, only after EPA has received the
signed EPA Form 5770–7, ‘‘Fellowship This regulation codifies policy and
Activation Notice.’’ procedures for the award of grants or
(b) EPA will pay the book allowance cooperative agreements under section 6
directly to the fellow only after EPA of the NEEA. Specifically, this regula-
receives the signed EPA Form 5770–7. tion defines eligible applicants, eligible
(c) EPA will pay tuition and fees in a activities, EPA priorities for selecting
lump payment directly to the spon- recipients, funding limits, and match-
soring institution only after EPA has ing requirements. Projects funded
received the signed EPA Form 5770–7. under this regulation are also subject
to the Code of Federal Regulations (40
(Information collection requirements in CFR) part 31 for State and local recipi-
paragraph (a) were approved by the Office of ents, and part 30 for other than State
Management and Budget under control num-
and local recipients. Those regulations
ber 2010–0004)
contain Federal audit and other gen-
APPENDIX A TO PART 46—ENVIRON- eral administrative requirements. This
MENTAL PROTECTION AGENCY FEL- regulation does not apply to the pro-
LOWSHIP PROGRAMS grams implemented under sections 5
and 7 of the NEEA.
Administering office
Headquarters Regional
(a) Environmental education and envi-
Office of Air, Noise, and Radi- X
ation: Air Pollution Control ronmental education and training mean
Fellowships. educational activities and training ac-
Office of Water: tivities involving elementary, sec-
Water Pollution Control Fel- X
lowships.
ondary, and postsecondary students, as
Safe Drinking Water Fellow- X such terms are defined in the State in
ships. which they reside, and environmental
638
education personnel, but does not in- § 47.115 Award amount and matching
clude technical training activities di- requirements.
rected toward environmental manage- (a) Individual awards shall not exceed
ment professionals or activities pri- $250,000, and 25 percent of all funds ob-
marily directed toward the support of ligated under this section in a fiscal
noneducational research and develop- year shall be for individual awards of
ment; not more than $5,000.
(b) Federal agency or agency of the
(b) The Federal share shall not ex-
United States means any department,
ceed 75 percent of the total project
agency or other instrumentality of the
costs. The non-Federal share of project
Federal Government, any independent
costs may be provided by in-kind con-
agency or establishment of the Federal
tributions and other noncash support.
Government including any Government
In cases where the EPA determines
corporation;
that a proposed project merits support
(c) Local education agency means any
and cannot be undertaken without a
education agency as defined in section
higher rate of Federal support, the
198 of the Elementary and Secondary
EPA may approve awards with a
Education Act of 1965 (20 U.S.C. 3381)
matching requirement other than that
and shall include any tribal education
specified in this paragraph, including
agency, as defined in § 47.105(f);
full Federal funding.
(d) Not-for-profit organization means
an organization, association, or insti- § 47.120 Solicitation notice and pro-
tution described in section 501(c)(3) of posal procedures.
the Internal Revenue Code of 1986,
which is exempt from taxation pursu- Each fiscal year the Administrator
ant to the provisions of section 501(a) shall publish a solicitation for environ-
of such Code; mental education grant proposals. The
(e) Noncommercial education broad- solicitation notice shall prescribe the
casting entities means any noncommer- information to be included in the pro-
cial educational broadcasting station posal and other information sufficient
(and/or its legal nonprofit affiliates) as to permit EPA to assess the project.
defined and licensed by the Federal
§ 47.125 Eligible and priority projects
Communications Commission; and activities.
(f) Tribal education agency means a
school or community college which is (a) Activities eligible for funding
controlled by an Indian tribe, band, or shall include, but not be limited to, en-
nation, including any Alaska Native vironmental education and training
village, which is recognized as eligible programs for:
for special programs and services pro- (1) Design, demonstration, or dis-
vided by the United States to Indians semination of environmental curricula,
because of their status as Indians and including development of educational
which is not administered by the Bu- tools and materials;
reau of Indian Affairs; (2) Design and demonstration of field
(g) Refer to 40 CFR parts 30 and 31 for methods, practices, and techniques, in-
definitions for budget period, project cluding assessment of environmental
period, continuation award, coopera- and ecological conditions and analysis
tive agreement, grant agreement, and of environmental pollution problems;
other Federal assistance terms. (3) Projects to understand and assess
a specific environmental issue or a spe-
§ 47.110 Eligible applicants. cific environmental problem;
Any local education agency (includ- (4) Provision of training or related
ing any tribal education agency), col- education for teachers, faculty, or re-
lege or university, State education lated personnel in a specific geographic
agency or environmental agency, not- area or region; and
for-profit organization, or noncommer- (5) Design and demonstration of
cial educational broadcasting entity projects to foster international co-
may submit an application to the Ad- operation in addressing environmental
ministrator in response to the solicita- issues and problems involving the
tions described in § 47.120. United States and Canada or Mexico.
639
§ 47.130 40 CFR Ch. I (7–1–00 Edition)
(b) EPA shall give priority to those 49.5 Tribal requests for additional Clean Air
proposals which will develop: Act provisions for which it is not appro-
(1) A new or significantly improved priate to treat tribes in the same manner
as States.
environmental education practice, 49.6 Tribal eligibility requirements.
method, or technique; 49.7 Request by an Indian tribe for eligi-
(2) An environmental education prac- bility determination and Clean Air Act
tice, method, or technique which may program approval.
have wide application; 49.8 Provisions for tribal criminal enforce-
(3) An environmental education prac- ment authority.
49.9 EPA review of tribal Clean Air Act ap-
tice, method, or technique which ad-
plications.
dresses a skill or scientific field identi- 49.10 EPA review of State Clean Air Act
fied as a priority in the report which programs.
will be developed within two years of 49.11 Actions under section 301(d)(4) author-
enactment pursuant to section 9(d) of ity.
the Act; and 49.22 Federal implementation plan for Tri-
(4) An environmental education prac- cities landfill, Salt River Pima-Maricopa
Indian Community.
tice, method, or technique which ad-
dresses an environmental issue which, AUTHORITY: 42 U.S.C. 7401, et seq.
in the judgment of EPA, is of a high SOURCE: 63 FR 7271, Feb. 12, 1998, unless
priority. otherwise noted.
§ 47.130 Performance of grant. § 49.1 Program overview.

(a) Each project shall be performed (a) The regulations in this part iden-
by the recipient, or by a person satis- tify those provisions of the Clean Air
factory to the recipient and to the Act (Act) for which Indian tribes are or
EPA. Workplans shall accompany all may be treated in the same manner as
applications, shall identify who will be States. In general, these regulations
performing activities, and shall be ap- authorize eligible tribes to have the
proved by EPA prior to funding. same rights and responsibilities as
(b) Budget periods normally will not States under the Clean Air Act and au-
exceed one year. Project periods may thorize EPA approval of tribal air qual-
be longer, and additional funding may ity programs meeting the applicable
be awarded for continuations. minimum requirements of the Act.
(c) Procurement procedures, which (b) Nothing in this part shall prevent
are found in 40 CFR part 33 for all re- an Indian tribe from establishing addi-
cipients other than State and local tional or more stringent air quality
governments. Procurement procedures protection requirements not incon-
for State and local governments are de- sistent with the Act.
scribed in 40 CFR part 31. These proce-
dures include provisions for small pur- § 49.2 Definitions.
chase procedures. (a) Clean Air Act or Act means those
statutory provisions in the United
§ 47.135 Disputes. States Code at 42 U.S.C. 7401, et seq.
Disputes arising under these grants (b) Federal Indian Reservation, Indian
shall be governed by 40 CFR 30.1200 for Reservation or Reservation means all
recipients other than State and local land within the limits of any Indian
governments and 40 CFR 31.70 for State reservation under the jurisdiction of
and local governments. the United States government, not-
withstanding the issuance of any pat-
ent, and including rights-of-way run-
PART 49—TRIBAL CLEAN AIR ACT ning through the reservation.
AUTHORITY (c) Indian tribe or tribe means any In-
dian tribe, band, nation, or other orga-
Sec. nized group or community, including
49.1 Program overview.
any Alaska Native village, which is
49.2 Definitions.
49.3 General Tribal Clean Air Act authority. federally recognized as eligible for the
49.4 Clean Air Act provisions for which it is special programs and services provided
not appropriate to treat tribes in the by the United States to Indians be-
same manner as States. cause of their status as Indians.
640
(d) Indian Tribe Consortium or Tribal lines that are determined to be prac-
Consortium means a group of two or ticable or, as with other non-partici-
more Indian tribes. pating tribes in an affected transport
(e) State means a State, the District region, provide for Federal implemen-
of Columbia, the Commonwealth of tation of necessary measures.
Puerto Rico, the Virgin Islands, Guam, (g) Any provisions of the Act requir-
and American Samoa and includes the ing as a condition of program approval
Commonwealth of the Northern Mar- the demonstration of criminal enforce-
iana Islands. ment authority or any provisions of
the Act providing for the delegation of
§ 49.3 General Tribal Clean Air Act au- such criminal enforcement authority.
thority. Tribes seeking approval of a Clean Air
Tribes meeting the eligibility cri- Act program requiring such demonstra-
teria of § 49.6 shall be treated in the tion may receive program approval if
same manner as States with respect to they meet the requirements of § 49.8.
all provisions of the Clean Air Act and (h) The specific deadline for the sub-
implementing regulations, except for mittal of operating permit programs in
those provisions identified in § 49.4 and section 502(d)(1) of the Act.
the regulations that implement those (i) The mandatory imposition of
provisions. sanctions under section 502(d)(2)(B) be-
cause of failure to submit an operating
§ 49.4 Clean Air Act provisions for permit program or EPA disapproval of
which it is not appropriate to treat an operating permit program submittal
tribes in the same manner as in whole or part.
States.
(j) The ‘‘2 years after the date re-
Tribes will not be treated as States quired for submission of such a pro-
with respect to the following provi- gram under paragraph (1)’’ provision in
sions of the Clean Air Act and any im- section 502(d)(3) of the Act.
plementing regulations thereunder: (k) Section 502(g) of the Act, which
(a) Specific plan submittal and im- authorizes a limited interim approval
plementation deadlines for NAAQS-re- of an operating permit program that
lated requirements, including but not substantially meets the requirements
limited to such deadlines in sections of Title V, but is not fully approvable.
110(a)(1), 172(a)(2), 182, 187, 189, and 191 (l) The provisions of section 503(c) of
of the Act. the Act that direct permitting authori-
(b) The specific deadlines associated ties to establish a phased schedule as-
with the review and revision of imple- suring that at least one-third of the
mentation plans related to major fuel permit applications submitted within
burning sources in section 124 of the the first full year after the effective
Act. date of an operating permit program
(c) The mandatory imposition of (or a partial or interim program) will
sanctions under section 179 of the Act be acted on by the permitting author-
because of a failure to submit an im- ity over a period not to exceed three
plementation plan or required plan ele- years after the effective date.
ment by a specific deadline, or the sub- (m) The provisions of section 507(a) of
mittal of an incomplete or disapproved the Act that specify a deadline for the
plan or element. submittal of plans for establishing a
(d) The provisions of section 110(c)(1) small business stationary source tech-
of the Act. nical and environmental compliance
(e) Specific visibility implementation assistance program.
plan submittal deadlines established (n) The provisions of section 507(e) of
under section 169A of the Act. the Act that direct the establishment
(f) Specific implementation plan sub- of a Compliance Advisory Panel.
mittal deadlines related to interstate (o) The provisions of section 304 of
commissions under sections 169B(e)(2), the Act that, read together with sec-
184(b)(1) and (c)(5) of the Act. For eligi- tion 302(e) of the Act, authorize any
ble tribes participating as members of person who provides the minimum re-
such commissions, the Administrator quired advance notice to bring certain
shall establish those submittal dead- civil actions in the Federal district
641
§ 49.5 40 CFR Ch. I (7–1–00 Edition)
courts against States in their capacity reservation or other areas within the
as States. tribe’s jurisdiction; and
(p) The provisions of section 502(b)(6) (d) The Indian tribe is reasonably ex-
of the Act that require that review of a pected to be capable, in the EPA Re-
final permit action under the Title V gional Administrator’s judgment, of
permitting program be ‘‘judicial’’ and carrying out the functions to be exer-
‘‘in State court,’’ and the provisions of cised in a manner consistent with the
section 502(b)(7) of the Act that require terms and purposes of the Clean Air
that review of a failure on the part of Act and all applicable regulations.
the permitting authority to act on per-
mit applications or renewals by the § 49.7 Request by an Indian tribe for
time periods specified in section 503 of eligibility determination and Clean
the Act be ‘‘judicial’’ and ‘‘in State Air Act program approval.
court.’’ (a) An Indian tribe may apply to the
(q) The provision of section 105(a)(1) EPA Regional Administrator for a de-
that limits the maximum Federal termination that it meets the eligi-
share for grants to pollution control bility requirements of § 49.6 for Clean
agencies to three-fifths of the cost of Air Act program approval. The applica-
implementing programs for the prevention shall concisely describe how the
tion and control of air pollution or im- Indian tribe will meet each of the re-
plementation of national primary and quirements of § 49.6 and should include
secondary ambient air quality stand- the following information:
ards. (1) A statement that the applicant is
an Indian tribe recognized by the Sec-
§ 49.5 Tribal requests for additional retary of the Interior.
Clean Air Act provisions for which (2) A descriptive statement dem-
it is not appropriate to treat tribes onstrating that the applicant is cur-
in the same manner as States.
rently carrying out substantial govern-
Any tribe may request that the Ad- mental duties and powers over a de-
ministrator specify additional provi- fined area. This statement should:
sions of the Clean Air Act for which it (i) Describe the form of the tribal
would be inappropriate to treat tribes government;
in general in the same manner as (ii) Describe the types of government
States. Such request should clearly functions currently performed by the
identify the provisions at issue and tribal governing body such as, but not
should be accompanied with a state- limited to, the exercise of police pow-
ment explaining why it is inappro- ers affecting (or relating to) the health,
priate to treat tribes in the same man- safety, and welfare of the affected pop-
ner as States with respect to such pro- ulation; taxation; and the exercise of
visions. the power of eminent domain; and
(iii) Identify the source of the tribal
§ 49.6 Tribal eligibility requirements. government’s authority to carry out
Sections 301(d)(2) and 302(r), 42 U.S.C. the governmental functions currently
7601(d)(2) and 7602(r), authorize the Ad- being performed.
ministrator to treat an Indian tribe in (3) A descriptive statement of the In-
the same manner as a State for the dian tribe’s authority to regulate air
Clean Air Act provisions identified in quality. For applications covering
§ 49.3 if the Indian tribe meets the fol- areas within the exterior boundaries of
lowing criteria: the applicant’s reservation the state-
(a) The applicant is an Indian tribe ment must identify with clarity and
recognized by the Secretary of the In- precision the exterior boundaries of the
terior; reservation including, for example, a
(b) The Indian tribe has a governing map and a legal description of the area.
body carrying out substantial govern- For tribal applications covering areas
mental duties and functions; outside the boundaries of a reservation
(c) The functions to be exercised by the statement should include:
the Indian tribe pertain to the manage- (i) A map or legal description of the
ment and protection of air resources area over which the application asserts
within the exterior boundaries of the authority; and
642
(ii) A statement by the applicant’s (5) A tribe that is a member of a trib-

legal counsel (or equivalent official) al consortium may rely on the exper-
that describes the basis for the tribe’s tise and resources of the consortium in
assertion of authority (including the demonstrating under paragraph (a)(4)
nature or subject matter of the as- of this section that the tribe is reason-
serted regulatory authority) which ably expected to be capable of carrying
may include a copy of documents such out the functions to be exercised con-
as tribal constitutions, by-laws, char- sistent with § 49.6(d). A tribe relying on
ters, executive orders, codes, ordi- a consortium in this manner must pro-
nances, and/or resolutions that support vide reasonable assurances that the
the tribe’s assertion of authority. tribe has responsibility for carrying
(4) A narrative statement describing out necessary functions in the event
the capability of the applicant to ad- the consortium fails to.
minister effectively any Clean Air Act (6) Where applicable Clean Air Act or
program for which the tribe is seeking implementing regulatory requirements
approval. The narrative statement mandate criminal enforcement author-
must demonstrate the applicant’s capa- ity, an application submitted by an In-
bility consistent with the applicable dian tribe may be approved if it meets
provisions of the Clean Air Act and im- the requirements of § 49.8.
plementing regulations and, if re- (7) Additional information required
quested by the Regional Adminis- by the EPA Regional Administrator
trator, may include: which, in the judgment of the EPA Re-
(i) A description of the Indian tribe’s gional Administrator, is necessary to
previous management experience support an application.
which may include the administration (8) Where the applicant has pre-
of programs and services authorized by viously received authorization for a
the Indian Self-Determination and Clean Air Act program or for any other
Education Assistance Act (25 U.S.C. EPA-administered program, the appli-
450, et seq.), the Indian Mineral Devel- cant need only identify the prior au-
opment Act (25 U.S.C. 2101, et seq.), or thorization and provide the required
the Indian Sanitation Facility Con- information which has not been sub-
struction Activity Act (42 U.S.C. 2004a); mitted in the previous application.
(ii) A list of existing environmental (b) A tribe may simultaneously sub-
or public health programs adminis- mit a request for an eligibility deter-
tered by the tribal governing body and mination and a request for approval of
a copy of related tribal laws, policies, a Clean Air Act program.
and regulations; (c) A request for Clean Air Act pro-
(iii) A description of the entity (or gram approval must meet any applica-
entities) that exercise the executive, ble Clean Air Act statutory and regu-
legislative, and judicial functions of latory requirements. A program ap-
the tribal government; proval request may be comprised of
(iv) A description of the existing, or only partial elements of a Clean Air
proposed, agency of the Indian tribe Act program, provided that any such
that will assume primary responsi- elements are reasonably severable,
bility for administering a Clean Air that is, not integrally related to pro-
Act program (including a description of gram elements that are not included in
the relationship between the existing the plan submittal, and are consistent
or proposed agency and its regulated with applicable statutory and regu-
entities); latory requirements.
(v) A description of the technical and
administrative capabilities of the staff § 49.8 Provisions for tribal criminal en-
to administer and manage an effective forcement authority.
air quality program or a plan which To the extent that an Indian tribe is
proposes how the tribe will acquire ad- precluded from asserting criminal en-
ministrative and technical expertise. forcement authority, the Federal Gov-
The plan should address how the tribe ernment will exercise primary criminal
will obtain the funds to acquire the ad- enforcement responsibility. The tribe,
ministrative and technical expertise. with the EPA Region, shall develop a
643
§ 49.9 40 CFR Ch. I (7–1–00 Edition)
procedure by which the tribe will pro- (e) The EPA Regional Administrator
vide potential investigative leads to shall decide the jurisdictional scope of
EPA and/or other appropriate Federal the tribe’s program. If a conflicting
agencies, as agreed to by the parties, in claim cannot be promptly resolved, the
an appropriate and timely manner. EPA Regional Administrator may ap-
This procedure shall encompass all cir- prove that portion of an application ad-
cumstances in which the tribe is in- dressing all undisputed areas.
capable of exercising applicable en- (f) A determination by the EPA Re-
forcement requirements as provided in gional Administrator concerning the
§ 49.7(a)(6). This agreement shall be in- boundaries of a reservation or tribal ju-
corporated into a Memorandum of risdiction over non-reservation areas
Agreement with the EPA Region. shall apply to all future Clean Air Act
applications from that tribe or tribal
§ 49.9 EPA review of tribal Clean Air
Act applications. consortium and no further notice to
governmental entities, as described in
(a) The EPA Regional Administrator paragraph (b) of this section, shall be
shall process a request of an Indian provided, unless the application pre-
tribe submitted under § 49.7 in a timely sents different jurisdictional issues or
manner. The EPA Regional Adminis- significant new factual or legal infor-
trator shall promptly notify the Indian mation relevant to jurisdiction to the
tribe of receipt of the application. EPA Regional Administrator.
(b) Within 30 days of receipt of an In- (g) If the EPA Regional Adminis-
dian tribe’s initial, complete applica- trator determines that a tribe meets
tion, the EPA Regional Administrator the requirements of § 49.6 for purposes
shall notify all appropriate govern- of a Clean Air Act provision, the Indian
mental entities.
tribe is eligible to be treated in the
(1) For tribal applications addressing same manner as a State with respect to
air resources within the exterior that provision, to the extent that the
boundaries of the reservation, EPA’s provision is identified in § 49.3. The eli-
notification of other governmental en-
gibility will extend to all areas within
tities shall specify the geographic
the exterior boundaries of the tribe’s
boundaries of the reservation.
reservation, as determined by the EPA
(2) For tribal applications addressing
Regional Administrator, and any other
non-reservation areas, EPA’s notifica-
areas the EPA Regional Administrator
tion of other governmental entities
has determined to be within the tribe’s
shall include the substance and bases
jurisdiction.
of the tribe’s jurisdictional assertions.
(h) Consistent with the exceptions
(c) The governmental entities shall
listed in § 49.4, a tribal application con-
have 30 days to provide written com-
taining a Clean Air Act program sub-
ments to EPA’s Regional Adminis-
mittal will be reviewed by EPA in ac-
trator regarding any dispute con-
cerning the boundary of the reserva- cordance with applicable statutory and
tion. Where a tribe has asserted juris- regulatory criteria in a manner similar
diction over non-reservation areas, ap- to the way EPA would review a similar
propriate governmental entities may State submittal.
request a single 30-day extension to the (i) The EPA Regional Administrator
general 30-day comment period. shall return an incomplete or dis-
(d) In all cases, comments must be approved application to the tribe with
timely, limited to the scope of the a summary of the deficiencies.
tribe’s jurisdictional assertion, and
clearly explain the substance, bases, § 49.10 EPA review of State Clean Air
Act programs.
and extent of any objections. If a
tribe’s assertion is subject to a con- A State Clean Air Act program sub-
flicting claim, the EPA Regional Ad- mittal shall not be disapproved because
ministrator may request additional in- of failure to address air resources with-
formation from the tribe and may con- in the exterior boundaries of an Indian
sult with the Department of the Inte- Reservation or other areas within the
rior. jurisdiction of an Indian tribe.
644
§ 49.11 Actions under section 301(d)(4) Actual emissions means the actual
authority. rate of emissions of a pollutant from
Notwithstanding any determination an emissions unit as determined in
made on the basis of authorities grant- paragraphs (1)–(3) of this definition:
ed the Administrator under any other (1) In general, actual emissions as of
provision of this section, the Adminis- a particular date shall equal the aver-
trator, pursuant to the discretionary age rate, in tons per year, at which the
authority explicitly granted to the Ad- unit actually emitted the pollutant
ministrator under sections 301(a) and during a two-year period which pre-
301(d)(4): cedes the particular date and which is
(a) Shall promulgate without unrea- representative of normal source oper-
sonable delay such Federal implemen- ation. EPA shall allow the use of a dif-
tation plan provisions as are necessary ferent time period upon a determina-
or appropriate to protect air quality, tion that it is more representative of
consistent with the provisions of sec- normal source operation. Actual emis-
tions 304(a) and 301(d)(4), if a tribe does sions shall be calculated using the
not submit a tribal implementation unit’s actual operating hours, produc-
plan meeting the completeness criteria tion rates, and types of materials proc-
of 40 CFR part 51, appendix V, or does essed, stored, or combusted during the
not receive EPA approval of a sub- selected time period.
mitted tribal implementation plan. (2) EPA may presume that the
(b) May provide up to 95 percent of source-specific allowable emissions for
the cost of implementing programs for the unit are equivalent to the actual
the prevention and control of air pollu- emissions of the unit.
tion or implementation of national pri- (3) For any emissions unit which has
mary and secondary ambient air qual- not begun normal operations on the
ity standards. After two years from the particular date, actual emissions shall
date of each tribe’s initial grant award, equal the potential to emit of the unit
the maximum Federal share will be re- on that date.
duced to 90 percent, as long as the Re- Begin actual construction means, in
gional Administrator determines that general, initiation of physical on-site
the tribe meets certain economic indi- construction activities on an emissions
cators that would provide an objective unit which are of a permanent nature.
assessment of the tribe’s ability to in- Such activities include, but are not
crease its share. The Regional Admin- limited to, installation of building sup-
istrator may increase the maximum ports and foundations, laying of under-
Federal share to 100 percent if the tribe ground pipework, and construction of
can demonstrate in writing to the sat- permanent storage structures. With re-
isfaction of the Regional Adminis- spect to a change in method of oper-
trator that fiscal circumstances within ating this term refers to those on-site
the tribe are constrained to such an ex- activities other than preparatory ac-
tent that fulfilling the match would tivities which mark the initiation of
impose undue hardship. the change.
Building, structure, facility, or installa-
§ 49.22 Federal implementation plan tion means all of the pollutant-emit-
for Tri-Cities landfill, Salt River ting activities which belong to the
Pima-Maricopa Indian Community. same industrial grouping, are located
(a) Applicability. This section applies on one or more contiguous or adjacent
to the owner or operator of the project properties, and are under the control of
located on the Reservation of the Salt the same person (or persons under com-
River Pima Maricopa Indian Commu- mon control) except the activities of
nity (SRPMIC) in Arizona, including any vessel. Pollutant-emitting activi-
any new owner or operator in the event ties shall be considered as part of the
of a change in ownership of the project. same industrial grouping if they belong
(b) Definitions. The following defini- to the same Major Group (i.e., which
tions apply to this section. Except as have the same two-digit code) as de-
specifically defined herein, terms used scribed in the Standard Industrial Clas-
in this section retain the meaning ac- sification Manual, 1972, as amended by
corded them under the Clean Air Act. the 1977 Supplement (U.S. Government
645
§ 49.22 40 CFR Ch. I (7–1–00 Edition)
Printing Office stock numbers 4101–0065 emits, or has the potential to emit, 100
and 003–005–00176–0, respectively). tons per year or more of any pollutant
Commence as applied to construction subject to regulation under the Act.
of a major stationary source or major The fugitive emissions of a stationary
modification means that the owner or source shall not be included in deter-
operator has all necessary mining for any of the purposes of this
preconstruction approvals or permits project whether it is a major sta-
and either has: (1) Begun, or caused to tionary source.
begin, a continuous program of actual Potential to emit means the maximum
on-site construction of the source, to capacity of a stationary source to emit
be completed within a reasonable time; a pollutant under its physical and oper-
or ational design. Any physical or oper-
(2) Entered into binding agreements ational limitation on the capacity of
or contractual obligations, which can- the source to emit a pollutant, includ-
not be cancelled or modified without ing air pollution control equipment
substantial loss to the owner or oper- and restrictions on hours of operation
ator, to undertake a program of actual or on the type or amount of material
construction of the source to be com- combusted, stored, or processed, shall
pleted within a reasonable time. be treated as part of its design only if
Construction means any physical the limitation or the effect it would
change or change in the method of op- have on emissions is federally enforce-
eration (including fabrication, erec- able. Secondary emissions do not count
tion, installation, demolition, or modi- in determining the potential to emit of
fication of an emissions unit) which a stationary source.
would result in a change in actual Project means the construction of
emissions. electricity-generating engines owned
EPA means United States Environ- and operated by the Salt River Project
mental Protection Agency, Region 9. at the Tri-Cities landfill, which are
Fugitive emissions means those emis- fueled by collected landfill gas.
sions which could not reasonably pass Secondary emissions means emissions
through a stack, chimney, vent, or which would occur as a result of the
other functionally equivalent opening. construction or operation of a major
Lowest achievable emission rate means stationary source, but do not come
the more stringent rate of emissions from the major stationary source
based on the following: itself. For the purpose of this section,
(1) The most stringent emissions lim- secondary emissions must be specific,
itation which is contained in any well defined, quantifiable, and impact
State, Tribal, or federal implementa- the same general area as the sta-
tion plan for such class or category of tionary source which causes the sec-
stationary source, unless the owner or ondary emissions. Secondary emissions
operator of the project demonstrates include emissions from any offsite sup-
that such limitations are not achiev- port facility which would not be con-
able; or structed or increase its emissions ex-
(2) The most stringent emissions lim- cept as a result of the construction of
itation which is achieved in practice by operation of the major stationary
such class or category of stationary source. Secondary emissions do not in-
sources. This limitation, when applied clude any emissions which come di-
to a modification, means the lowest rectly from a mobile source such as
achievable emissions rate for the new emissions from the tailpipe of a motor
or modified emissions units within a vehicle, from a train, or from a vessel.
stationary source. In no event shall the Stationary source means any building,
application of the term permit a pro- structure, facility, or installation
posed new or modified stationary which emits or may emit any air pol-
source to emit any pollutant in excess lutant subject to regulation under the
of the amount allowable under an ap- Clean Air Act.
plicable new source standard of per- (c) Requirement to submit an applica-
formance. tion. The owner or operator of the
Major stationary source means a sta- project shall submit an application for
tionary source of air pollutants which a permit to construct to EPA which
646
contains all information necessary to accordance with the application sub-

perform any analysis or make any de- mitted pursuant to this section or with
termination as required by this Federal the terms of any approval to construct,
Implementation Plan. or if the owner or operator subject to
(d) Source obligations. (1) The owner or this section commences construction
operator of the project shall not begin after January 24 , 2000 without apply-
actual construction on the project ing for and receiving approval under
without obtaining a nonattainment this section, then the owner or oper-
New Source Review permit regulating ator shall be subject to appropriate en-
emissions of air pollutants. The EPA forcement action.
Region 9 Regional Administrator has (3) Approval to construct shall be-
the authority to issue such a permit. come invalid if construction is not
Any permit issued by EPA shall ensure commenced within 18 months after re-
that the project meets the following re-
ceipt of such approval, if construction
quirements:
is discontinued for a period of 18
(i) By the time the project is to com-
months or more, or if construction is
mence operation, the owner or operator
not completed within a reasonable
of the project must have obtained suffi-
cient reductions in actual emissions time. The Administrator may extend
from existing facilities within the the 18-month period upon a satisfac-
same nonattainment area which satisfy tory showing that an extension is justi-
the requirements of section 173 of the fied.
Clean Air Act, to offset the potential (4) Approval to construct shall not
to emit of the project; relieve any owner or operator of the re-
(ii) The owner or operator of the sponsibility to comply fully with appli-
project must comply with the lowest cable provisions of the Federal imple-
achievable emissions rate; mentation plan and any other require-
(iii) The owner or operator of the ments under Tribal or Federal law.
project must demonstrate that all (e) Public participation. (1) When
major stationary sources owned or op- issuing a permit for the project, the
erated by such person (or by any entity EPA Region 9 Regional Administrator
controlling, controlled by, or under shall follow the procedures for decision
common control with such person) lo- making for PSD permits contained in
cated on the reservation of the 40 CFR part 124, including the require-
SRPMIC are subject to emission limi- ments for public notice, consideration
tations and are in compliance, or on a of and response to public comment, and
schedule for compliance, with all appli- the opportunity for public hearing.
cable emission limitations and stand- (2) Within 30 days after the EPA Re-
ards under the Act; and gion 9 Regional Administrator has
(iv) The owner or operator of the issued a final permit decision, any per-
project has provided an analysis of al- son who filed comments on the draft
ternative sites, sizes, production proc- permit or participated in the public
esses, and environmental control tech- hearing, if one has been held, may peti-
niques for the proposed source which tion the Environmental Appeals Board
demonstrates that benefits of the pro- to review any condition of the permit.
posed source significantly outweigh the Review of the permit decision will be
environmental and social costs im- governed by the regulations for review
posed as a result of its location or con- of PSD permits contained in 40 CFR
struction.
part 124.
(2) If the owner or operator con-
structs or operates the project not in [64 FR 65663, Nov. 23, 1999]
647
FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabet-
ical list of agencies publishing in the CFR are included in the CFR Index and
Finding Aids volume to the Code of Federal Regulations which is published sepa-
rately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
649
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Table of CFR Titles and Chapters
(Revised as of June 23, 2000)
Title 1—General Provisions
I Administrative Committee of the Federal Register (Parts 1—49)

II Office of the Federal Register (Parts 50—299)
IV Miscellaneous Agencies (Parts 400—500)
Title 2—[Reserved]
Title 3—The President
I Executive Office of the President (Parts 100—199)
Title 4—Accounts
I General Accounting Office (Parts 1—99)

II Federal Claims Collection Standards (General Accounting Of-
fice—Department of Justice) (Parts 100—299)
Title 5—Administrative Personnel
I Office of Personnel Management (Parts 1—1199)

II Merit Systems Protection Board (Parts 1200—1299)
III Office of Management and Budget (Parts 1300—1399)
V The International Organizations Employees Loyalty Board
(Parts 1500—1599)
VI Federal Retirement Thrift Investment Board (Parts 1600—1699)
VII Advisory Commission on Intergovernmental Relations (Parts
1700—1799)
VIII Office of Special Counsel (Parts 1800—1899)
IX Appalachian Regional Commission (Parts 1900—1999)
XI Armed Forces Retirement Home (Part 2100)
XIV Federal Labor Relations Authority, General Counsel of the Fed-
eral Labor Relations Authority and Federal Service Impasses
Panel (Parts 2400—2499)
XV Office of Administration, Executive Office of the President
(Parts 2500—2599)
XVI Office of Government Ethics (Parts 2600—2699)
XXI Department of the Treasury (Parts 3100—3199)
XXII Federal Deposit Insurance Corporation (Part 3201)
651
Title 5—Administrative Personnel—Continued
Chap.
XXIII Department of Energy (Part 3301)

XXIV Federal Energy Regulatory Commission (Part 3401)
XXV Department of the Interior (Part 3501)
XXVI Department of Defense (Part 3601)
XXVIII Department of Justice (Part 3801)
XXIX Federal Communications Commission (Parts 3900—3999)
XXX Farm Credit System Insurance Corporation (Parts 4000—4099)
XXXI Farm Credit Administration (Parts 4100—4199)
XXXIII Overseas Private Investment Corporation (Part 4301)
XXXV Office of Personnel Management (Part 4501)
XL Interstate Commerce Commission (Part 5001)
XLI Commodity Futures Trading Commission (Part 5101)
XLII Department of Labor (Part 5201)
XLIII National Science Foundation (Part 5301)
XLV Department of Health and Human Services (Part 5501)
XLVI Postal Rate Commission (Part 5601)
XLVII Federal Trade Commission (Part 5701)
XLVIII Nuclear Regulatory Commission (Part 5801)
L Department of Transportation (Part 6001)
LII Export-Import Bank of the United States (Part 6201)
LIII Department of Education (Parts 6300—6399)
LIV Environmental Protection Agency (Part 6401)
LVII General Services Administration (Part 6701)
LVIII Board of Governors of the Federal Reserve System (Part 6801)
LIX National Aeronautics and Space Administration (Part 6901)
LX United States Postal Service (Part 7001)
LXI National Labor Relations Board (Part 7101)
LXII Equal Employment Opportunity Commission (Part 7201)
LXIII Inter-American Foundation (Part 7301)
LXV Department of Housing and Urban Development (Part 7501)
LXVI National Archives and Records Administration (Part 7601)
LXIX Tennessee Valley Authority (Part 7901)
LXXI Consumer Product Safety Commission (Part 8101)
LXXIII Department of Agriculture (Part 8301)
LXXIV Federal Mine Safety and Health Review Commission (Part 8401)
LXXVI Federal Retirement Thrift Investment Board (Part 8601)
LXXVII Office of Management and Budget (Part 8701)
Title 6—[Reserved]
Title 7—Agriculture
SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS

0—26)
SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE
652
Title 7—Agriculture—Continued
Chap.
I Agricultural Marketing Service (Standards, Inspections, Mar-

keting Practices), Department of Agriculture (Parts 27—209)
II Food and Nutrition Service, Department of Agriculture (Parts
210—299)
III Animal and Plant Health Inspection Service, Department of Ag-
riculture (Parts 300—399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400—499)
V Agricultural Research Service, Department of Agriculture
(Parts 500—599)
VI Natural Resources Conservation Service, Department of Agri-
culture (Parts 600—699)
VII Farm Service Agency, Department of Agriculture (Parts 700—
799)
VIII Grain Inspection, Packers and Stockyards Administration (Fed-
eral Grain Inspection Service), Department of Agriculture
(Parts 800—899)
IX Agricultural Marketing Service (Marketing Agreements and Or-
ders; Fruits, Vegetables, Nuts), Department of Agriculture
(Parts 900—999)
X Agricultural Marketing Service (Marketing Agreements and Or-
ders; Milk), Department of Agriculture (Parts 1000—1199)
XI Agricultural Marketing Service (Marketing Agreements and Or-
ders; Miscellaneous Commodities), Department of Agriculture
(Parts 1200—1299)
XIII Northeast Dairy Compact Commission (Parts 1300—1399)
XIV Commodity Credit Corporation, Department of Agriculture
(Parts 1400—1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500—1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600—
1699)
XVII Rural Utilities Service, Department of Agriculture (Parts 1700—
1799)
XVIII Rural Housing Service, Rural Business-Cooperative Service,
Rural Utilities Service, and Farm Service Agency, Depart-
ment of Agriculture (Parts 1800—2099)
XXVI Office of Inspector General, Department of Agriculture (Parts
2600—2699)
XXVII Office of Information Resources Management, Department of
Agriculture (Parts 2700—2799)
XXVIII Office of Operations, Department of Agriculture (Parts 2800—
2899)
XXIX Office of Energy, Department of Agriculture (Parts 2900—2999)
XXX Office of the Chief Financial Officer, Department of Agriculture
(Parts 3000—3099)
XXXI Office of Environmental Quality, Department of Agriculture
(Parts 3100—3199)
XXXII Office of Procurement and Property Management, Department
of Agriculture (Parts 3200—3299)
653
Title 7—Agriculture—Continued
Chap.
XXXIII Office of Transportation, Department of Agriculture (Parts

3300—3399)
XXXIV Cooperative State Research, Education, and Extension Service,
Department of Agriculture (Parts 3400—3499)
XXXV Rural Housing Service, Department of Agriculture (Parts 3500—
3599)
XXXVI National Agricultural Statistics Service, Department of Agri-
XXXVII Economic Research Service, Department of Agriculture (Parts
3700—3799)
XXXVIII World Agricultural Outlook Board, Department of Agriculture
(Parts 3800—3899)
XLI [Reserved]
XLII Rural Business-Cooperative Service and Rural Utilities Service,
Department of Agriculture (Parts 4200—4299)
Title 8—Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice

(Parts 1—599)
Title 9—Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of Ag-

riculture (Parts 1—199)
II Grain Inspection, Packers and Stockyards Administration
(Packers and Stockyards Programs), Department of Agri-
III Food Safety and Inspection Service, Department of Agriculture
(Parts 300—599)
Title 10—Energy
I Nuclear Regulatory Commission (Parts 0—199)

II Department of Energy (Parts 200—699)
III Department of Energy (Parts 700—999)
X Department of Energy (General Provisions) (Parts 1000—1099)
XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799)
XVIII Northeast Interstate Low-Level Radioactive Waste Commission
(Part 1800)
Title 11—Federal Elections
I Federal Election Commission (Parts 1—9099)
Title 12—Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts

1—199)
654
Title 12—Banks and Banking—Continued
Chap.
II Federal Reserve System (Parts 200—299)

III Federal Deposit Insurance Corporation (Parts 300—399)
IV Export-Import Bank of the United States (Parts 400—499)
V Office of Thrift Supervision, Department of the Treasury (Parts
500—599)
VI Farm Credit Administration (Parts 600—699)
VII National Credit Union Administration (Parts 700—799)
VIII Federal Financing Bank (Parts 800—899)
IX Federal Housing Finance Board (Parts 900—999)
XI Federal Financial Institutions Examination Council (Parts
1100—1199)
XIV Farm Credit System Insurance Corporation (Parts 1400—1499)
XV Department of the Treasury (Parts 1500—1599)
XVII Office of Federal Housing Enterprise Oversight, Department of
Housing and Urban Development (Parts 1700—1799)
XVIII Community Development Financial Institutions Fund, Depart-
ment of the Treasury (Parts 1800—1899)
Title 13—Business Credit and Assistance
I Small Business Administration (Parts 1—199)

III Economic Development Administration, Department of Com-
merce (Parts 300—399)
IV Emergency Steel Guarantee Loan Board (Parts 400—499)
V Emergency Oil and Gas Guaranteed Loan Board (Parts 500—599)
Title 14—Aeronautics and Space
I Federal Aviation Administration, Department of Transportation

(Parts 1—199)
II Office of the Secretary, Department of Transportation (Aviation
Proceedings) (Parts 200—399)
III Commercial Space Transportation, Federal Aviation Adminis-
tration, Department of Transportation (Parts 400—499)
V National Aeronautics and Space Administration (Parts 1200—
1299)
Title 15—Commerce and Foreign Trade
SUBTITLE A—OFFICE OF THE SECRETARY OF COMMERCE (PARTS 0—

29)
SUBTITLE B—REGULATIONS RELATING TO COMMERCE AND FOREIGN
TRADE
I Bureau of the Census, Department of Commerce (Parts 30—199)
II National Institute of Standards and Technology, Department of
Commerce (Parts 200—299)
III International Trade Administration, Department of Commerce
(Parts 300—399)
655
Title 15—Commerce and Foreign Trade—Continued
Chap.
IV Foreign-Trade Zones Board, Department of Commerce (Parts

400—499)
VII Bureau of Export Administration, Department of Commerce
(Parts 700—799)
VIII Bureau of Economic Analysis, Department of Commerce (Parts
800—899)
IX National Oceanic and Atmospheric Administration, Department
of Commerce (Parts 900—999)
XI Technology Administration, Department of Commerce (Parts
1100—1199)
XIII East-West Foreign Trade Board (Parts 1300—1399)
XIV Minority Business Development Agency (Parts 1400—1499)
SUBTITLE C—REGULATIONS RELATING TO FOREIGN TRADE AGREE-
MENTS
XX Office of the United States Trade Representative (Parts 2000—
2099)
SUBTITLE D—REGULATIONS RELATING TO TELECOMMUNICATIONS
AND INFORMATION
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300—2399)
Title 16—Commercial Practices
I Federal Trade Commission (Parts 0—999)

II Consumer Product Safety Commission (Parts 1000—1799)
Title 17—Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1—199)

II Securities and Exchange Commission (Parts 200—399)
IV Department of the Treasury (Parts 400—499)
Title 18—Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy

(Parts 1—399)
III Delaware River Basin Commission (Parts 400—499)
VI Water Resources Council (Parts 700—799)
VIII Susquehanna River Basin Commission (Parts 800—899)
XIII Tennessee Valley Authority (Parts 1300—1399)
Title 19—Customs Duties
I United States Customs Service, Department of the Treasury

(Parts 1—199)
II United States International Trade Commission (Parts 200—299)
III International Trade Administration, Department of Commerce
(Parts 300—399)
656
Title 20—Employees’ Benefits
Chap.
I Office of Workers’ Compensation Programs, Department of

Labor (Parts 1—199)
II Railroad Retirement Board (Parts 200—399)
III Social Security Administration (Parts 400—499)
IV Employees’ Compensation Appeals Board, Department of Labor
(Parts 500—599)
V Employment and Training Administration, Department of Labor
(Parts 600—699)
VI Employment Standards Administration, Department of Labor
(Parts 700—799)
VII Benefits Review Board, Department of Labor (Parts 800—899)
VIII Joint Board for the Enrollment of Actuaries (Parts 900—999)
IX Office of the Assistant Secretary for Veterans’ Employment and
Training, Department of Labor (Parts 1000—1099)
Title 21—Food and Drugs
I Food and Drug Administration, Department of Health and

Human Services (Parts 1—1299)
II Drug Enforcement Administration, Department of Justice (Parts
1300—1399)
III Office of National Drug Control Policy (Parts 1400—1499)
Title 22—Foreign Relations
I Department of State (Parts 1—199)

II Agency for International Development (Parts 200—299)
III Peace Corps (Parts 300—399)
IV International Joint Commission, United States and Canada
(Parts 400—499)
V Broadcasting Board of Governors (Parts 500—599)
VII Overseas Private Investment Corporation (Parts 700—799)
IX Foreign Service Grievance Board Regulations (Parts 900—999)
X Inter-American Foundation (Parts 1000—1099)
XI International Boundary and Water Commission, United States
and Mexico, United States Section (Parts 1100—1199)
XII United States International Development Cooperation Agency
(Parts 1200—1299)
XIII Board for International Broadcasting (Parts 1300—1399)
XIV Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations
Authority; and the Foreign Service Impasse Disputes Panel
(Parts 1400—1499)
XV African Development Foundation (Parts 1500—1599)
XVI Japan-United States Friendship Commission (Parts 1600—1699)
XVII United States Institute of Peace (Parts 1700—1799)
657
Title 23—Highways
Chap.
I Federal Highway Administration, Department of Transportation

(Parts 1—999)
II National Highway Traffic Safety Administration and Federal
Highway Administration, Department of Transportation
(Parts 1200—1299)
III National Highway Traffic Safety Administration, Department of
Transportation (Parts 1300—1399)
Title 24—Housing and Urban Development
SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSING

AND URBAN DEVELOPMENT (PARTS 0—99)
SUBTITLE B—REGULATIONS RELATING TO HOUSING AND URBAN DE-
VELOPMENT
I Office of Assistant Secretary for Equal Opportunity, Department
of Housing and Urban Development (Parts 100—199)
II Office of Assistant Secretary for Housing-Federal Housing Com-
missioner, Department of Housing and Urban Development
(Parts 200—299)
III Government National Mortgage Association, Department of
Housing and Urban Development (Parts 300—399)
IV Office of Housing and Office of Multifamily Housing Assistance
Restructuring, Department of Housing and Urban Develop-
ment (Parts 400—499)
V Office of Assistant Secretary for Community Planning and De-
velopment, Department of Housing and Urban Development
(Parts 500—599)
VI Office of Assistant Secretary for Community Planning and De-
velopment, Department of Housing and Urban Development
(Parts 600—699) [Reserved]
VII Office of the Secretary, Department of Housing and Urban Devel-
opment (Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700—799)
VIII Office of the Assistant Secretary for Housing—Federal Housing
Commissioner, Department of Housing and Urban Develop-
ment (Section 8 Housing Assistance Programs, Section 202 Di-
rect Loan Program, Section 202 Supportive Housing for the El-
derly Program and Section 811 Supportive Housing for Persons
With Disabilities Program) (Parts 800—899)
IX Office of Assistant Secretary for Public and Indian Housing, De-
partment of Housing and Urban Development (Parts 900—999)
X Office of Assistant Secretary for Housing—Federal Housing
ment (Interstate Land Sales Registration Program) (Parts
1700—1799)
XII Office of Inspector General, Department of Housing and Urban
Development (Parts 2000—2099)
XX Office of Assistant Secretary for Housing—Federal Housing
ment (Parts 3200—3899)
XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)
658
Title 25—Indians
Chap.
I Bureau of Indian Affairs, Department of the Interior (Parts 1—

299)
II Indian Arts and Crafts Board, Department of the Interior (Parts
300—399)
III National Indian Gaming Commission, Department of the Inte-
rior (Parts 500—599)
IV Office of Navajo and Hopi Indian Relocation (Parts 700—799)
V Bureau of Indian Affairs, Department of the Interior, and Indian
Health Service, Department of Health and Human Services
(Part 900)
VI Office of the Assistant Secretary-Indian Affairs, Department of
the Interior (Part 1001)
VII Office of the Special Trustee for American Indians, Department
of the Interior (Part 1200)
Title 26—Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1—

799)
Title 27—Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the

Treasury (Parts 1—299)
Title 28—Judicial Administration
I Department of Justice (Parts 0—199)

III Federal Prison Industries, Inc., Department of Justice (Parts
300—399)
V Bureau of Prisons, Department of Justice (Parts 500—599)
VI Offices of Independent Counsel, Department of Justice (Parts
600—699)
VII Office of Independent Counsel (Parts 700—799)
Title 29—Labor
SUBTITLE A—OFFICE OF THE SECRETARY OF LABOR (PARTS 0—99)

SUBTITLE B—REGULATIONS RELATING TO LABOR
I National Labor Relations Board (Parts 100—199)
II Office of Labor-Management Standards, Department of Labor
(Parts 200—299)
III National Railroad Adjustment Board (Parts 300—399)
IV Office of Labor-Management Standards, Department of Labor
(Parts 400—499)
V Wage and Hour Division, Department of Labor (Parts 500—899)
IX Construction Industry Collective Bargaining Commission (Parts
900—999)
X National Mediation Board (Parts 1200—1299)
659
Title 29—Labor—Continued
Chap.
XII Federal Mediation and Conciliation Service (Parts 1400—1499)

XIV Equal Employment Opportunity Commission (Parts 1600—1699)
XVII Occupational Safety and Health Administration, Department of
XX Occupational Safety and Health Review Commission (Parts
2200—2499)
XXV Pension and Welfare Benefits Administration, Department of
XXVII Federal Mine Safety and Health Review Commission (Parts
2700—2799)
XL Pension Benefit Guaranty Corporation (Parts 4000—4999)
Title 30—Mineral Resources
I Mine Safety and Health Administration, Department of Labor

(Parts 1—199)
II Minerals Management Service, Department of the Interior
(Parts 200—299)
III Board of Surface Mining and Reclamation Appeals, Department
of the Interior (Parts 300—399)
IV Geological Survey, Department of the Interior (Parts 400—499)
VI Bureau of Mines, Department of the Interior (Parts 600—699)
VII Office of Surface Mining Reclamation and Enforcement, Depart-
ment of the Interior (Parts 700—999)
Title 31—Money and Finance: Treasury
SUBTITLE A—OFFICE OF THE SECRETARY OF THE TREASURY (PARTS

0—50)
SUBTITLE B—REGULATIONS RELATING TO MONEY AND FINANCE
I Monetary Offices, Department of the Treasury (Parts 51—199)
II Fiscal Service, Department of the Treasury (Parts 200—399)
IV Secret Service, Department of the Treasury (Parts 400—499)
V Office of Foreign Assets Control, Department of the Treasury
(Parts 500—599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600—699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700—799)
VIII Office of International Investment, Department of the Treasury
(Parts 800—899)
Title 32—National Defense
SUBTITLE A—DEPARTMENT OF DEFENSE

I Office of the Secretary of Defense (Parts 1—399)
V Department of the Army (Parts 400—699)
VI Department of the Navy (Parts 700—799)
660
Title 32—National Defense—Continued
Chap.
VII Department of the Air Force (Parts 800—1099)

SUBTITLE B—OTHER REGULATIONS RELATING TO NATIONAL DE-
FENSE
XII Defense Logistics Agency (Parts 1200—1299)
XVI Selective Service System (Parts 1600—1699)
XVIII National Counterintelligence Center (Parts 1800—1899)
XIX Central Intelligence Agency (Parts 1900—1999)
XX Information Security Oversight Office, National Archives and
Records Administration (Parts 2000—2099)
XXI National Security Council (Parts 2100—2199)
XXIV Office of Science and Technology Policy (Parts 2400—2499)
XXVII Office for Micronesian Status Negotiations (Parts 2700—2799)
XXVIII Office of the Vice President of the United States (Parts 2800—
2899)
Title 33—Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1—199)

II Corps of Engineers, Department of the Army (Parts 200—399)
IV Saint Lawrence Seaway Development Corporation, Department
of Transportation (Parts 400—499)
Title 34—Education
SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF EDU-

CATION (PARTS 1—99)
SUBTITLE B—REGULATIONS OF THE OFFICES OF THE DEPARTMENT
OF EDUCATION
I Office for Civil Rights, Department of Education (Parts 100—199)
II Office of Elementary and Secondary Education, Department of
Education (Parts 200—299)
III Office of Special Education and Rehabilitative Services, Depart-
ment of Education (Parts 300—399)
IV Office of Vocational and Adult Education, Department of Edu-
cation (Parts 400—499)
V Office of Bilingual Education and Minority Languages Affairs,
Department of Education (Parts 500—599)
VI Office of Postsecondary Education, Department of Education
(Parts 600—699)
VII Office of Educational Research and Improvement, Department of
Education (Parts 700—799)
XI National Institute for Literacy (Parts 1100—1199)
SUBTITLE C—REGULATIONS RELATING TO EDUCATION
XII National Council on Disability (Parts 1200—1299)
Title 35—Panama Canal
I Panama Canal Regulations (Parts 1—299)
661
Title 36—Parks, Forests, and Public Property
Chap.
I National Park Service, Department of the Interior (Parts 1—199)

II Forest Service, Department of Agriculture (Parts 200—299)
III Corps of Engineers, Department of the Army (Parts 300—399)
IV American Battle Monuments Commission (Parts 400—499)
V Smithsonian Institution (Parts 500—599)
VII Library of Congress (Parts 700—799)
VIII Advisory Council on Historic Preservation (Parts 800—899)
IX Pennsylvania Avenue Development Corporation (Parts 900—999)
X Presidio Trust (Parts 1000—1099)
XI Architectural and Transportation Barriers Compliance Board
(Parts 1100—1199)
XII National Archives and Records Administration (Parts 1200—1299)
XIV Assassination Records Review Board (Parts 1400—1499)
XV Oklahoma City National Memorial Trust (Part 1501)
Title 37—Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce (Parts

1—199)
II Copyright Office, Library of Congress (Parts 200—299)
IV Assistant Secretary for Technology Policy, Department of Com-
merce (Parts 400—499)
V Under Secretary for Technology, Department of Commerce
(Parts 500—599)
Title 38—Pensions, Bonuses, and Veterans’ Relief
I Department of Veterans Affairs (Parts 0—99)
Title 39—Postal Service
I United States Postal Service (Parts 1—999)

III Postal Rate Commission (Parts 3000—3099)
Title 40—Protection of Environment
I Environmental Protection Agency (Parts 1—799)

V Council on Environmental Quality (Parts 1500—1599)
VII Environmental Protection Agency and Department of Defense;
Uniform National Discharge Standards for Vessels of the
Armed Forces (Parts 1700—1799)
Title 41—Public Contracts and Property Management
SUBTITLE B—OTHER PROVISIONS RELATING TO PUBLIC CONTRACTS

50 Public Contracts, Department of Labor (Parts 50–1—50–999)
662
Title 41—Public Contracts and Property Management—Continued
Chap.
51 Committee for Purchase From People Who Are Blind or Severely

Disabled (Parts 51–1—51–99)
60 Office of Federal Contract Compliance Programs, Equal Employ-
ment Opportunity, Department of Labor (Parts 60–1—60–999)
61 Office of the Assistant Secretary for Veterans Employment and
Training, Department of Labor (Parts 61–1—61–999)
SUBTITLE C—FEDERAL PROPERTY MANAGEMENT REGULATIONS
SYSTEM
101 Federal Property Management Regulations (Parts 101–1—101–99)
102 Federal Management Regulation (Parts 102–1—102–299)
105 General Services Administration (Parts 105–1—105–999)
109 Department of Energy Property Management Regulations (Parts
109–1—109–99)
114 Department of the Interior (Parts 114–1—114–99)
115 Environmental Protection Agency (Parts 115–1—115–99)
128 Department of Justice (Parts 128–1—128–99)
SUBTITLE D—OTHER PROVISIONS RELATING TO PROPERTY MANAGE-
MENT [RESERVED]
SUBTITLE E—FEDERAL INFORMATION RESOURCES MANAGEMENT
REGULATIONS SYSTEM
201 Federal Information Resources Management Regulation (Parts
201–1—201–99) [Reserved]
SUBTITLE F—FEDERAL TRAVEL REGULATION SYSTEM
300 General (Parts 300–1—300.99)
301 Temporary Duty (TDY) Travel Allowances (Parts 301–1—301–99)
302 Relocation Allowances (Parts 302–1—302–99)
303 Payment of Expenses Connected with the Death of Certain Em-
ployees (Part 303–70)
304 Payment from a Non-Federal Source for Travel Expenses (Parts
304–1—304–99)
Title 42—Public Health
I Public Health Service, Department of Health and Human Serv-

ices (Parts 1—199)
IV Health Care Financing Administration, Department of Health
and Human Services (Parts 400—499)
V Office of Inspector General-Health Care, Department of Health
Title 43—Public Lands: Interior
SUBTITLE A—OFFICE OF THE SECRETARY OF THE INTERIOR (PARTS

1—199)
SUBTITLE B—REGULATIONS RELATING TO PUBLIC LANDS
I Bureau of Reclamation, Department of the Interior (Parts 200—
499)
II Bureau of Land Management, Department of the Interior (Parts
1000—9999)
663
Title 43—Public Lands: Interior—Continued
Chap.
III Utah Reclamation Mitigation and Conservation Commission

(Parts 10000—10005)
Title 44—Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0—399)

IV Department of Commerce and Department of Transportation
(Parts 400—499)
Title 45—Public Welfare
SUBTITLE A—DEPARTMENT OF HEALTH AND HUMAN SERVICES

(PARTS 1—199)
SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE
II Office of Family Assistance (Assistance Programs), Administra-
tion for Children and Families, Department of Health and
Human Services (Parts 200—299)
III Office of Child Support Enforcement (Child Support Enforce-
ment Program), Administration for Children and Families,
Department of Health and Human Services (Parts 300—399)
IV Office of Refugee Resettlement, Administration for Children and
Families Department of Health and Human Services (Parts
400—499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500—599)
VI National Science Foundation (Parts 600—699)
VII Commission on Civil Rights (Parts 700—799)
VIII Office of Personnel Management (Parts 800—899)
X Office of Community Services, Administration for Children and
Families, Department of Health and Human Services (Parts
1000—1099)
XI National Foundation on the Arts and the Humanities (Parts
1100—1199)
XII Corporation for National and Community Service (Parts 1200—
1299)
XIII Office of Human Development Services, Department of Health
XVI Legal Services Corporation (Parts 1600—1699)
XVII National Commission on Libraries and Information Science
(Parts 1700—1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899)
XXI Commission on Fine Arts (Parts 2100—2199)
XXIII Arctic Research Commission (Part 2301)
XXIV James Madison Memorial Fellowship Foundation (Parts 2400—
2499)
XXV Corporation for National and Community Service (Parts 2500—
2599)
664
Title 46—Shipping
Chap.
I Coast Guard, Department of Transportation (Parts 1—199)

II Maritime Administration, Department of Transportation (Parts
200—399)
III Coast Guard (Great Lakes Pilotage), Department of Transpor-
tation (Parts 400—499)
IV Federal Maritime Commission (Parts 500—599)
Title 47—Telecommunication
I Federal Communications Commission (Parts 0—199)

II Office of Science and Technology Policy and National Security
Council (Parts 200—299)
III National Telecommunications and Information Administration,
Department of Commerce (Parts 300—399)
Title 48—Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1—99)

2 Department of Defense (Parts 200—299)
3 Department of Health and Human Services (Parts 300—399)
4 Department of Agriculture (Parts 400—499)
5 General Services Administration (Parts 500—599)
6 Department of State (Parts 600—699)
7 United States Agency for International Development (Parts
700—799)
8 Department of Veterans Affairs (Parts 800—899)
9 Department of Energy (Parts 900—999)
10 Department of the Treasury (Parts 1000—1099)
12 Department of Transportation (Parts 1200—1299)
13 Department of Commerce (Parts 1300—1399)
14 Department of the Interior (Parts 1400—1499)
15 Environmental Protection Agency (Parts 1500—1599)
16 Office of Personnel Management Federal Employees Health Ben-
efits Acquisition Regulation (Parts 1600—1699)
17 Office of Personnel Management (Parts 1700—1799)
18 National Aeronautics and Space Administration (Parts 1800—
1899)
19 Broadcasting Board of Governors (Parts 1900—1999)
20 Nuclear Regulatory Commission (Parts 2000—2099)
21 Office of Personnel Management, Federal Employees Group Life
Insurance Federal Acquisition Regulation (Parts 2100—2199)
23 Social Security Administration (Parts 2300—2399)
24 Department of Housing and Urban Development (Parts 2400—
2499)
25 National Science Foundation (Parts 2500—2599)
28 Department of Justice (Parts 2800—2899)
29 Department of Labor (Parts 2900—2999)
665
Title 48—Federal Acquisition Regulations System—Continued
Chap.
34 Department of Education Acquisition Regulation (Parts 3400—

3499)
35 Panama Canal Commission (Parts 3500—3599)
44 Federal Emergency Management Agency (Parts 4400—4499)
51 Department of the Army Acquisition Regulations (Parts 5100—
5199)
52 Department of the Navy Acquisition Regulations (Parts 5200—
5299)
53 Department of the Air Force Federal Acquisition Regulation
Supplement (Parts 5300—5399)
54 Defense Logistics Agency, Department of Defense (Part 5452)
57 African Development Foundation (Parts 5700—5799)
61 General Services Administration Board of Contract Appeals
(Parts 6100—6199)
63 Department of Transportation Board of Contract Appeals (Parts
6300—6399)
99 Cost Accounting Standards Board, Office of Federal Procure-
ment Policy, Office of Management and Budget (Parts 9900—
9999)
Title 49—Transportation
SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPORTATION

(PARTS 1—99)
SUBTITLE B—OTHER REGULATIONS RELATING TO TRANSPORTATION
I Research and Special Programs Administration, Department of
II Federal Railroad Administration, Department of Transportation
(Parts 200—299)
III Federal Motor Carrier Safety Administration, Department of
IV Coast Guard, Department of Transportation (Parts 400—499)
V National Highway Traffic Safety Administration, Department of
VI Federal Transit Administration, Department of Transportation
(Parts 600—699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts
700—799)
VIII National Transportation Safety Board (Parts 800—999)
X Surface Transportation Board, Department of Transportation
(Parts 1000—1399)
XI Bureau of Transportation Statistics, Department of Transpor-
tation (Parts 1400—1499)
Title 50—Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Inte-

rior (Parts 1—199)
666
Title 50—Wildlife and Fisheries—Continued
Chap.
II National Marine Fisheries Service, National Oceanic and Atmos-

pheric Administration, Department of Commerce (Parts 200—
299)
III International Fishing and Related Activities (Parts 300—399)
IV Joint Regulations (United States Fish and Wildlife Service, De-
partment of the Interior and National Marine Fisheries Serv-
ice, National Oceanic and Atmospheric Administration, De-
partment of Commerce); Endangered Species Committee Reg-
ulations (Parts 400—499)
V Marine Mammal Commission (Parts 500—599)
VI Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts
600—699)
CFR Index and Finding Aids
Subject/Agency Index
List of Agency Prepared Indexes
Parallel Tables of Statutory Authorities and Rules
List of CFR Titles, Chapters, Subchapters, and Parts
667
(Revised as of June 23, 2000)
CFR Title, Subtitle or

Agency Chapter
Administrative Committee of the Federal Register 1, I
Advanced Research Projects Agency 32, I
Advisory Commission on Intergovernmental Relations 5, VII
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV
Federal Acquisition Regulation 48, 57
Agency for International Development, United States 22, II
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agriculture Department 5, LXXIII
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Animal and Plant Health Inspection Service 7, III; 9, I
Chief Financial Officer, Office of 7, XXX
Commodity Credit Corporation 7, XIV
Cooperative State Research, Education, and Extension 7, XXXIV
Service
Economic Research Service 7, XXXVII
Energy, Office of 7, XXIX
Environmental Quality, Office of 7, XXXI
Farm Service Agency 7, VII, XVIII
Federal Crop Insurance Corporation 7, IV
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Forest Service 36, II
Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Natural Resources Conservation Service 7, VI
Operations, Office of 7, XXVIII
Procurement and Property Management, Office of 7, XXXII
Rural Business-Cooperative Service 7, XVIII, XLII
Rural Development Administration 7, XLII
Rural Housing Service 7, XVIII, XXXV
Rural Telephone Bank 7, XVI
Rural Utilities Service 7, XVII, XVIII, XLII
Secretary of Agriculture, Office of 7, Subtitle A
Transportation, Office of 7, XXXIII
World Agricultural Outlook Board 7, XXXVIII
Air Force Department 32, VII
Federal Acquisition Regulation Supplement 48, 53
Alcohol, Tobacco and Firearms, Bureau of 27, I
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
American Indians, Office of the Special Trustee 25, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers Compliance Board 36, XI
669
Agency Chapter
Arctic Research Commission 45, XXIII
Armed Forces Retirement Home 5, XI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Assassination Records Review Board 36, XIV
Benefits Review Board 20, VII
Bilingual Education and Minority Languages Affairs, Office of 34, V
Blind or Severely Disabled, Committee for Purchase From 41, 51
People Who Are
Board for International Broadcasting 22, XIII
Broadcasting Board of Governors 22, V
Census Bureau 15, I
Central Intelligence Agency 32, XIX
Chief Financial Officer, Office of 7, XXX
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Civil Rights, Commission on 45, VII
Civil Rights, Office for 34, I
Coast Guard 33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage) 46, III
Commerce Department 44, IV
Census Bureau 15, I
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Emergency Management and Assistance 44, IV
Export Administration, Bureau of 15, VII
Fishery Conservation and Management 50, VI
Foreign-Trade Zones Board 15, IV
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV, VI
National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV, VI
National Telecommunications and Information 15, XXIII; 47, III
Administration
National Weather Service 15, IX
Patent and Trademark Office 37, I
Productivity, Technology and Innovation, Assistant 37, IV
Secretary for
Secretary of Commerce, Office of 15, Subtitle A
Technology, Under Secretary for 37, V
Technology Administration 15, XI
Technology Policy, Assistant Secretary for 37, IV
Commercial Space Transportation 14, III
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 5, XLI; 17, I
Community Planning and Development, Office of Assistant 24, V, VI
Secretary for
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining Commission 29, IX
Consumer Product Safety Commission 5, LXXI; 16, II
Cooperative State Research, Education, and Extension 7, XXXIV
Service
Copyright Office 37, II
Corporation for National and Community Service 45, XII, XXV
Cost Accounting Standards Board 48, 99
Council on Environmental Quality 40, V
Customs Service, United States 19, I
Defense Contract Audit Agency 32, I
Defense Department 5, XXVI; 32, Subtitle A;
40, VII
Advanced Research Projects Agency 32, I
Air Force Department 32, VII
670
Agency Chapter
Army Department 32, V; 33, II; 36, III, 48,
51
Defense Intelligence Agency 32, I
Defense Logistics Agency 32, I, XII; 48, 54
National Imagery and Mapping Agency 32, I
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 32, I
Defense Contract Audit Agency 32, I
Defense Intelligence Agency 32, I
Defense Logistics Agency 32, XII; 48, 54
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Economic Research Service 7, XXXVII
Education, Department of 5, LIII
Bilingual Education and Minority Languages Affairs, Office 34, V
of
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Emergency Oil and Gas Guaranteed Loan Board 13, V
Emergency Steel Guarantee Loan Board 13, IV
Employees’ Compensation Appeals Board 20, IV
Employees Loyalty Board 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 5, XXIII; 10, II, III, X
Federal Energy Regulatory Commission 5, XXIV; 18, I
Property Management Regulations 41, 109
Energy, Office of 7, XXIX
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 5, LIV; 40, I, VII
Environmental Quality, Office of 7, XXXI
Equal Employment Opportunity Commission 5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Environmental Quality, Council on 40, V
Management and Budget, Office of 25, III, LXXVII; 48, 99
National Drug Control Policy, Office of 21, III
National Security Council 32, XXI; 47, 2
Presidential Documents 3
Science and Technology Policy, Office of 32, XXIV; 47, II
Trade Representative, Office of the United States 15, XX
Export Administration, Bureau of 15, VII
Export-Import Bank of the United States 5, LII; 12, IV
Family Assistance, Office of 45, II
Farm Credit Administration 5, XXXI; 12, VI
Farm Credit System Insurance Corporation 5, XXX; 12, XIV
671
Agency Chapter
Farm Service Agency 7, VII, XVIII
Federal Aviation Administration 14, I
Federal Claims Collection Standards 4, II
Federal Communications Commission 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 5, XXII; 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I
Federal Employees Group Life Insurance Federal Acquisition 48, 21
Regulation
Federal Employees Health Benefits Acquisition Regulation 48, 16
Federal Energy Regulatory Commission 5, XXIV; 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Highway Administration 23, I, II
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Enterprise Oversight Office 12, XVII
Federal Housing Finance Board 12, IX
Federal Labor Relations Authority, and General Counsel of 5, XIV; 22, XIV
the Federal Labor Relations Authority
Federal Law Enforcement Training Center 31, VII
Federal Management Regulation 41, 102
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration 49, III
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Board of Governors 5, LVIII
Federal Retirement Thrift Investment Board 5, VI, LXXVI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 5, XLVII; 16, I
Federal Transit Administration 49, VI
Federal Travel Regulation System 41, Subtitle F
Fine Arts, Commission on 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of the United States 45, V
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Accounting Office 4, I, II
General Services Administration 5, LVII; 41, 105
Contract Appeals, Board of 48, 61
Federal Management Regulation 41, 102
Federal Property Management Regulations 41, 101
Federal Travel Regulation System 41, Subtitle F
General 41, 300
Payment From a Non-Federal Source for Travel Expenses 41, 304
672
Agency Chapter
Payment of Expenses Connected With the Death of Certain 41, 303
Employees
Relocation Allowances 41, 302
Temporary Duty (TDY) Travel Allowances 41, 301
Geological Survey 30, IV
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 5, XLV; 45, Subtitle A
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Food and Drug Administration 21, I
Health Care Financing Administration 42, IV
Human Development Services, Office of 45, XIII
Indian Health Service 25, V
Inspector General (Health Care), Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Health Care Financing Administration 42, IV
Housing and Urban Development, Department of 5, LXV; 24, Subtitle B
Community Planning and Development, Office of Assistant 24, V, VI
Secretary for
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Housing Enterprise Oversight, Office of 12, XVII
Government National Mortgage Association 24, III
Housing—Federal Housing Commissioner, Office of 24, II, VIII, X, XX
Assistant Secretary for
Inspector General, Office of 24, XII
Multifamily Housing Assistance Restructuring, Office of 24, IV
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle A, VII
Housing—Federal Housing Commissioner, Office of Assistant 24, II, VIII, X, XX
Secretary for
Human Development Services, Office of 45, XIII
Immigration and Naturalization Service 8, I
Independent Counsel, Office of 28, VII
Indian Affairs, Bureau of 25, I, V
Indian Affairs, Office of the Assistant Secretary 25, VI
Indian Arts and Crafts Board 25, II
Indian Health Service 25, V
Information Resources Management, Office of 7, XXVII
Information Security Oversight Office, National Archives and 32, XX
Records Administration
Inspector General
Agriculture Department 7, XXVI
Health and Human Services Department 42, V
Housing and Urban Development Department 24, XII
Institute of Peace, United States 22, XVII
Inter-American Foundation 5, LXIII; 22, X
Intergovernmental Relations, Advisory Commission on 5, VII
Interior Department
American Indians, Office of the Special Trustee 25, VII
Endangered Species Committee 50, IV
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I, V
Indian Affairs, Office of the Assistant Secretary 25, VI
Indian Arts and Crafts Board 25, II
Land Management, Bureau of 43, II
Minerals Management Service 30, II
673
Agency Chapter
Mines, Bureau of 30, VI
National Indian Gaming Commission 25, III
National Park Service 36, I
Reclamation, Bureau of 43, I
Secretary of the Interior, Office of 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
Internal Revenue Service 26, I
International Boundary and Water Commission, United States 22, XI
and Mexico, United States Section
International Development, United States Agency for 22, II
International Development Cooperation Agency, United 22, XII
States
International Fishing and Related Activities 50, III
International Investment, Office of 31, VIII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 5, XL
James Madison Memorial Fellowship Foundation 45, XXIV
Japan–United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 5, XXVIII; 28, I
Drug Enforcement Administration 21, II
Federal Claims Collection Standards 4, II
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United 45, V
States
Immigration and Naturalization Service 8, I
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department 5, XLII
Benefits Review Board 20, VII
Employees’ Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Standards, Office of 29, II, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Pension and Welfare Benefits Administration 29, XXV
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans’ Employment and Training, Office of the Assistant 41, 61; 20, IX
Secretary for
Wage and Hour Division 29, V
Workers’ Compensation Programs, Office of 20, I
Labor-Management Standards, Office of 29, II, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Management and Budget, Office of 5, III, LXXVII; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II
Micronesian Status Negotiations, Office for 32, XXVII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Mines, Bureau of 30, VI
Minority Business Development Agency 15, XIV
674
Agency Chapter
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Multifamily Housing Assistance Restructuring, Office of 24, IV
National Aeronautics and Space Administration 5, LIX; 14, V
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National and Community Service, Corporation for 45, XII, XXV
National Archives and Records Administration 5, LXVI; 36, XII
Information Security Oversight Office 32, XX
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National Council on Disability 34, XII
National Counterintelligence Center 32, XVIII
National Credit Union Administration 12, VII
National Drug Control Policy, Office of 21, III
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Imagery and Mapping Agency 32, I
National Indian Gaming Commission 25, III
National Institute for Literacy 34, XI
National Institute of Standards and Technology 15, II
National Labor Relations Board 5, LXI; 29, I
National Marine Fisheries Service 50, II, IV, VI
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 5, XLIII; 45, VI
National Security Council 32, XXI
National Security Council and Office of Science and 47, II
Technology Policy
National Telecommunications and Information 15, XXIII; 47, III
Administration
National Transportation Safety Board 49, VIII
National Weather Service 15, IX
Natural Resources Conservation Service 7, VI
Navajo and Hopi Indian Relocation, Office of 25, IV
Navy Department 32, VI
Neighborhood Reinvestment Corporation 24, XXV
Northeast Dairy Compact Commission 7, XIII
Northeast Interstate Low-Level Radioactive Waste 10, XVIII
Commission
Nuclear Regulatory Commission 5, XLVIII; 10, I
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Offices of Independent Counsel 28, VI
Oklahoma City National Memorial Trust 36, XV
Operations Office 7, XXVIII
Overseas Private Investment Corporation 5, XXXIII; 22, VII
Panama Canal Commission 48, 35
Panama Canal Regulations 35, I
Patent and Trademark Office 37, I
Payment From a Non-Federal Source for Travel Expenses 41, 304
Payment of Expenses Connected With the Death of Certain 41, 303
Employees
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension and Welfare Benefits Administration 29, XXV
Pension Benefit Guaranty Corporation 29, XL
Personnel Management, Office of 5, I, XXXV; 45, VIII
675
Agency Chapter
Federal Employees Group Life Insurance Federal 48, 21
Acquisition Regulation
Federal Employees Health Benefits Acquisition Regulation 48, 16
Postal Rate Commission 5, XLVI; 39, III
Postal Service, United States 5, LX; 39, I
Postsecondary Education, Office of 34, VI
President’s Commission on White House Fellowships 1, IV
Presidential Documents 3
Presidio Trust 36, X
Prisons, Bureau of 28, V
Procurement and Property Management, Office of 7, XXXII
Productivity, Technology and Innovation, Assistant 37, IV
Secretary
Public Contracts, Department of Labor 41, 50
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation, Bureau of 43, I
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Special Programs Administration 49, I
Rural Business-Cooperative Service 7, XVIII, XLII
Rural Development Administration 7, XLII
Rural Housing Service 7, XVIII, XXXV
Rural Telephone Bank 7, XVI
Rural Utilities Service 7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National 47, II
Security Council
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 13, I
Smithsonian Institution 36, V
Social Security Administration 20, III; 48, 23
Soldiers’ and Airmen’s Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, Office of 34, III
State Department 22, I
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
Surface Transportation Board 49, X
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Technology Policy, Assistant Secretary for 37, IV
Technology, Under Secretary for 37, V
Tennessee Valley Authority 5, LXIX; 18, XIII
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 5, L
Coast Guard 33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage) 46, III
Contract Appeals, Board of 48, 63
Emergency Management and Assistance 44, IV
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II
Federal Motor Carrier Safety Administration 49, III
Federal Railroad Administration 49, II
Federal Transit Administration 49, VI
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
676
Agency Chapter
Research and Special Programs Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Surface Transportation Board 49, X
Transportation Statistics Bureau 49, XI
Transportation, Office of 7, XXXIII
Transportation Statistics Brureau 49, XI
Travel Allowances, Temporary Duty (TDY) 41, 301
Treasury Department 5, XXI; 12, XV; 17, IV
Alcohol, Tobacco and Firearms, Bureau of 27, I
Community Development Financial Institutions Fund 12, XVIII
Comptroller of the Currency 12, I
Customs Service, United States 19, I
Engraving and Printing, Bureau of 31, VI
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
International Investment, Office of 31, VIII
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision, Office of 12, V
Truman, Harry S. Scholarship Foundation 45, XVIII
United States and Canada, International Joint Commission 22, IV
United States and Mexico, International Boundary and Water 22, XI
Commission, United States Section
Utah Reclamation Mitigation and Conservation Commission 43, III
Veterans Affairs Department 38, I
Veterans’ Employment and Training, Office of the Assistant 41, 61; 20, IX
Secretary for
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers’ Compensation Programs, Office of 20, I
World Agricultural Outlook Board 7, XXXVIII
677
All changes in this volume of the Code of Federal Regulations which
were made by documents published in the Federal Register since Janu-
ary 1, 1986, are enumerated in the following list. Entries indicate the na-
ture of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters and parts as well
as sections for revisions.
For the period before January 1, 1986, see the ‘‘List of CFR Sections
Affected, 1949–1963, 1964–1972, and 1973–1985’’ which is published in seven
separate volumes.
1986 40 CFR—Continued 51 FR
Page
40 CFR 51 FR Chapter I—Continued
Page
16.13 Added ................................... 24146
Chapter I 16.14 Revised ................................ 24148
4 Revised ....................................... 7016 30.510 (g) revised............................. 6353
6.103 (a)(4), (b)(2), (c)(2), (e) and (f) 30.540 (b) revised............................. 6353
revised ..................................... 32609 30.802 (b) and (c) revised .................. 6353
6.105 Heading and (d) revised ......... 32610 30.1230 (a) revised ........................... 6353
6.107 (b) revised; (d), (e) and (f) 30 Appendix E added ....................... 6353
added........................................ 32610 33.250 Class deviation ................... 28710
6.108 Heading and (d) revised ......... 32611 33.305 Class deviation ................... 28710
6.400 (d), (e) and (f) revised ............. 32611 33.310 Class deviation ................... 28710
6.402 (b) revised............................. 32611
6.502 (b)(4) added ........................... 32611
6.503 (b) revised............................. 32611 1987
6.505 (a), (b) and (c) revised; (d) re- 40 CFR 52 FR
moved; (e) redesignated as (d) Page
and revised ............................... 32611 Chapter I
6.506 (a), (b) introductory text 1.37 (a) introductory text and (e)
and (4) revised ........................... 32612 revised ..................................... 30359
6.507 (a), (b) and (d)(3) revised ........ 32612 1.45 (b) revised .............................. 30360
6.508 Revised ................................ 32612 1.47 (d) added ................................ 30360
6.511 (c) revised ............................. 32613 1.49 (g) added ................................ 30360
6.513 (a) introductory text re- 4 Revised; eff. 4–2–89 ...................... 48023
vised......................................... 32613 12 Added ....................................... 30606
6.514 (a)(3), (9), and (10), and (b) re- 22 Authority citation revised........ 30673
vised; (a)(11) added .................... 32613 22.01 (a)(5) revised; (a)(6) added;
6.602 (b) amended .......................... 32613 interim..................................... 30673
6.603 Amended .............................. 32613 22.38 Added; interim ..................... 30673
6.800 Amended .............................. 32613
6.900—6.905 (Subpart I) Nomen-
clature change.......................... 32613
1988
10.1 Revised .................................. 25832 40 CFR 53 FR
10.2 (c) revised .............................. 25832 Page
10.5 Revised .................................. 25832 Chapter I
10.9 Amended................................ 25832 2 Authority citation revised ............ 215
10.11 (a) designation removed; (b) 2.100 (b) revised; (e) through (k)
removed ................................... 25832 added........................................... 216
14 Revised .................................... 25832 2.101 (d) added .................................. 216
679
40 CFR (7–1–00 Edition)
40 CFR—Continued 53 FR 40 CFR—Continued 53 FR
Page Page
Chapter I—Continued Chapter I—Continued
2.113 (d), (e), and (f) revised ............... 216 32.425 Added; eff. 10–1–88 ................ 19197
2.116 Revised ................................... 217 32.430 Added; eff. 10–1–88 ................ 19197
2.118 (a)(7) revised ............................ 217 32 Appendix B amended; eff. 10–1–
2.120 Revised ................................... 217 88.............................................. 19197
2.121 Added ...................................... 219 33.110 (e)(5) removed; (e)(6) redes-
13 Added ....................................... 37270 ignated as (e)(5); eff. 10–1–88 ........ 8077
22 Authority citation revised ......... 5374 33.210 (f) removed; (g) and (h) re-
22.01 (a)(4) revised ................. 5374, 12263 designated as (f) and (g); eff. 10–
23 Authority citation revised........ 29322 1–88 ............................................ 8077
23.1 (c) added................................. 29322 33.250 Class deviation ..................... 9443
23.12 Added ................................... 29322 33.305 Class deviation ..................... 9443
24 Added ....................................... 12263 33.310 Class deviation ..................... 9443
27 Added ....................................... 15182 33.705—33.715 (Subpart C) Re-
30 Heading revised; eff. 10–1–88 ........ 8076 moved; eff. 10–1–88 ...................... 8077
30.302 (d) (2) and (3) removed; eff. 33.905—33.915 (Subpart E) Re-
10–1–88........................................ 8076 moved; eff. 10–1–88 ...................... 8077
30.501 (a)(2) removed; (a)(3) redes- 33.1021 Removed; eff. 10–1–88 ........... 8077
ignated as (a)(2); eff. 10–1–88 ........ 8076 33.1030 Amended; eff. 10–1–88 ........... 8077
30.503 (e), (g) and (h) removed; (f) 35 Class deviation ......................... 15820
redesignated as (e); eff. 10–1– 35.100—35.605 (Subpart A) Au-
88 ............................................... 8076 thority citation revised ............ 37408
30.505 (b)(2) removed; (b)(3) redes- 35.105 Amended............................. 37408
ignated as (b)(2); eff. 10–1–88 ........ 8076 35.115 (e) and (f) revised ................. 37409
30.540 (b) removed; (c) redesig- 35.155 (c) added.............................. 37409
nated as (b); eff. 10–1–88 ............... 8076 35.400 Revised ............................... 37409
30 Appendix E redesignated as 35.405 Existing text designated as
Part 31 Appendix A; eff. 10–1– (a); (b) added ............................. 37409
88 ............................................... 8076 35.410 (c) added.............................. 37409
31 Added; eff. 10–1–88 ............... 8075, 8087 35.415 Added ................................. 37409
31.6 (c)(1) and (d) added; eff. 10–1– 35.450 Revised ............................... 37409
88 ............................................... 8075 35.455 Existing text designated as
31.13 Added; eff. 10–1–88 ................... 8075 (a); (b) added ............................. 37409
31.36 (c)(5), (j) and (k) added; eff. 35.460 Revised ............................... 37409
10–1–88........................................ 8075 35.465 Added ................................. 37409
31.43 (a)(3)(i) added; eff. 10–1–88 ....... 8076 35.4000—35.4130 (Subpart M)
31.45 Added; eff. 10–1–88 ................... 8076 Added; interim ........................... 9748
31.70 (Subpart F) Added; eff. 10–1–
88 ............................................... 8076
31 Appendix A redesignated from
1989
Part 30 Appendix E; eff. 10–1– 40 CFR 54 FR
88 ............................................... 8076 Page
32 Revised; nomenclature Chapter I
change............................. 19196, 19204 4 Regulations at 52 FR 48023 con-
32.105 (g)(3), (p)(2), (t)(3), (w), and firmed; see regulation codified
(x) added; eff. 10–1–88 ................. 19196 at 49 CFR 24 ................................ 8912
32.110 (a)(2)(iv)(A) added; eff. 10–1– 22 Authority citation revised....... 12371,
88.............................................. 19197 21176, 24112
32.115 (d) added; eff. 10–1–88 ............ 19197 22.01 (a)(4) revised ......................... 12371
32.200 (c)(5)(i) added; eff. 10–1– (a)(6) revised; (a) (7) and (8)
88.............................................. 19197 added; interim ..........................21176
32.215 (a) added; eff. 10–1–88 ............ 19197 22.39 Added; interim ..................... 21176
32.313 (a)(1) added; eff. 10–1–88 ........ 19197 22.40 Added; interim ..................... 21176
32.315 (a)(1) added; eff. 10–1–88 ........ 19197 22.41 Added; eff. 7–5–89 ................... 24112
32.330 Added; eff. 10–1–88 ................ 19197 32 Heading and authority cita-
32.335 Added; eff. 10–1–88 ................ 19197 tion revised ................................ 4961
32.412 (a)(1) added; eff. 10–1–88 ........ 19197 Technical correction.....................6363
680
40 CFR—Continued 54 FR 1990
Page
Chapter I—Continued 40 CFR 55 FR
Page
32.305 (c) (3) and (4) amended;
(c)(5) added; interim ................... 4962 Chapter I
32.320 (a) revised; interim ............... 4962 7 Authority citation revised ......... 52142
7.70 (c) and (d) removed; (b) re-
32.600—32.630 (Subpart F) Added;
vised................................ 52138, 52142
interim ...................................... 4962
22 Authority citation revised; eff.
32 Appendix C added; interim.......... 4962 7–12–90 ...................................... 23840
35 Authority citation removed ....... 4135 22.38 Revised; eff. 7–12–90 ............... 23840
35.100—35.605 (Subpart A) Au- 32.600—32.635 (Subpart F) Regula-
thority citation revised ... 14357, 40368 tion at 54 FR 4950, 4962 con-
35.105 Amended; interim ............... 14357 firmed; revised; eff. in part 7–
35.115 (b) and (d) revised; (e) 24–90 ................................ 21688, 21701
through (i) redesignated as (g) 32 Appendix C regulation at 54 FR
through (k); new (e) and (f) 4950, 4962 confirmed; revised;
added; interim .......................... 14357 eff. in part 7–24–90............. 21690, 21701
(e) revised ....................................40368 34 Added; interim ................... 6737, 6753
35.155 Introductory text amend- 35.2005 (b)(47) through (52) redes-
ed; (c) added; interim ................ 14358 ignated as (b)(48) through (5);
35.250 Amended; interim ............... 14358 new (b)47) added; interim .......... 27095
35.255 Revised; interim ................. 14358 35.2012 Added; interim .................. 27095
35.260 (a) amended; (b) revised; in- 35.2015 (b)(2)(iii) revised; in-
terim........................................ 14358 terim........................................ 27095
35.265 Added; interim .................... 14358 35.2020 (b) revised; (f), (g), and (h)
35.350—35.360 Undesignated cen- added; interim .......................... 27095
ter heading revised; interim...... 14358 35.2021 (a) revised.......................... 27095
35.2025 (a) and (b)(5) revised; in-
35.350 Amended; interim ............... 14358
terim........................................ 27095
35.360 (a), (b), and (c) amended; in- 35.2035 Added; interim .................. 27095
terim........................................ 14358 35.2036 Added; interim .................. 27096
35.365 Added; interim .................... 14358 35.2040 (g) added; interim .............. 27096
35.415 (a)(2) revised ....................... 52137 35.2100 Revised; interim ................ 27096
35.750—35.760 Undesignated cen- 35.2102 Revised; interim ................ 27097
ter heading added; interim ........ 14358 35.2104 Introductory text and (a)
35.750 Added; interim .................... 14358 through (d) redesingated as (a)
35.755 Added; interim .................... 14359 introductory text and (1)
35.760 Added; interim .................... 14359 through (4); new (b) added; in-
35.1600—35.1650–6 (Subpart H) Au- terim........................................ 27097
thority citation revised ............ 14359 35.2118 (a)(1) revised; interim ........ 27097
35.1600 Amended; interim ............. 14359 35.2140 (i) amended; interim .......... 27097
35.1605 Amended; interim ............. 14359 35.2152 (a) introductory text and
35.1605–9 Added; interim ............... 14359 (3) revised; (c) and (d) redesig-
nated as (d) and (e); new (c)
35.1620–1 (c) added; interim ........... 14359
added; interim .......................... 27097
35.4020 (b) revised; (c) added; in-
35.2203 Added; interim .................. 27097
terim........................................ 49851
35.2204 (c) added; interim .............. 27097
35.4030 (a)(2) revised; interim ........ 49851 35.2212 (b) revised; interim ............ 27097
35.4055 (a) (1) and (7) revised; in- 35.2218 (d) amended; interim ......... 27098
terim........................................ 49851 35.2300 (f) added; interim ............... 27098
35.4085 (a) introductory text re- 35.2000—35.2350 (Subpart I) Ap-
vised; (e) removed; interim ....... 49851 pendix A amended; interim ....... 27098
35.4090 (b) introductory text re- Appendix B amended; interim .....27098
vised; interim ........................... 49852 35.3000—35.3035 (Subpart J) Au-
35.6000—35.6920 (Subpart O) thority citation revised ............ 27098
Added; interim ........................... 4135 35.3000 Existing text designated
35.9000—35.9070 (Subpart P) as (a); (b) and (c) added; in-
Added; interim ......................... 40804 terim........................................ 27098
681
Page Page
35.3100—35.3170 (Subpart K) 22.23 (b) amended............................ 5325
Added; interim ......................... 10178 22.27 (a) amended; (c) revised .......... 5325
35.6000—35.6820 (Subpart O) Re- 22.29 (a), (c) and (d) amended; (b)
vised; eff. 7–5–90......................... 23007 revised ....................................... 5325
35.6285 (c)(1)(ii) corrected.............. 24343 22.30 (a)(1), (2) and (b) amended;
(c) and (d) revised ....................... 5325
1991 22.31 (a) revised .............................. 5326
22.32 Revised .................................. 5326
40 CFR 56 FR
22.34 Revised .................................. 4318
Page
Chapter I 22.43 Added .................................... 4318
27.2 Amended ................................. 5326
6.400 (f) revised ............................. 20543
27.10 (h) through (l) revised ............. 5326
6.700—6.706 (Subpart G) Re-
27.14 (a)(2) and (b) revised ............... 5326
vised......................................... 20543
22 Authority citation revised ......... 3756 27.16 (f)(3) revised ........................... 5326
22.01 (a)(9) added............................. 3757 27.31 (a) amended; (b) introduc-
22.42 Added .................................... 3757 tory text and (c) revised.............. 5327
24 Authority citation revised........ 49380 27.35 (b) revised .............................. 5327
24.01 (a) revised; (c) redesignated 27.37 (d) revised .............................. 5327
as (d); new (c) added................... 49380 27.38 (f) and (g) revised .................... 5327
24.02 (a) revised............................. 49380 27.39 (a), (b)(3), (c), (f) and (h)
24.04 (a) revised............................. 49380 through (l) revised...................... 5327
24.08 Revised ................................ 49380 27.40 Revised .................................. 5327
26 Added; eff. 8–19–91 ............ 28012, 28022 27.41 Revised .................................. 5327
26.101 (b)(5) corrected.................... 29756 27.42 Revised .................................. 5327
26.103 (f) corrected ........................ 29756 27.46 (c) and (e) revised.................... 5327
30.541 Added ................................... 7305 27.48 Revised .................................. 5328
35 Class deviation .......................... 1492 35.115 (i) revised ............................. 8074
35.2010 Deviation from rule ........... 47403 35.4000—35.4130 (Subpart M) Re-
vised......................................... 45316
47 Added; interim ........................... 8390
1992
40 CFR 57 FR 1993
Page
Chapter I 40 CFR 58 FR
Page
Chapter I Nomenclature
change............................. 28087, 28088 Chapter I
1.25 (e) added .................................. 5323 2 Authority citation revised ............ 461
3.100—3.106 (Subpart A) Appendix Authority citation revised .......63247
C amended.................................. 5323 2.211 (d) amended ............................. 461
17.8 Revised ................................... 5323 2.301 (b)(6) removed, (e) amended;
17.14 (b) revised .............................. 5323 (h)(2)(i), (ii)(A) and (C) re-
22 Authority citation revised ......... 4318 vised............................................ 461
22.01 (a)(2) revised .......................... 4318 Heading and (e) corrected .............5061
22.03 Amended................................ 5323 (h)(2)(i) amended ...........................7189
22.04 (a), (b) and (d)(2) revised; 2.306 (j)(1) existing text amended;
(d)(1) amended............................ 5324 (j)(1)(i) and (ii) added.................... 462
Heading revised ...........................60129 2.310 Heading, (a)(1), (6), (b),
22.05 (c)(1) revised; (c)(5) amend- (g)(1), (3), (4), (h)(1) and (4) re-
ed............................................... 5324 vised; (g)(5) and (6) added .............. 462
22.06 Amended................................ 5324 6.303 (a) and (b) revised; (c)
22.07 (b) amended............................ 5324 through (g) removed ................. 63247
22.08 Amended................................ 5325 9 Added (OMB numbers)................ 27472
22.09 (a) amended............................ 5325 Authority citation revised .........34199,
22.11 (d) amended............................ 5325 34370
22.16 (b) and (c) amended................. 5325 9.1 Table amended (OMB num-
(b) amended .................................60129 bers) ........................................ 34199,
682
Page Page
34370, 40048, 40054, 49376, 57911, 32.430 (a) through (d) amended....... 50693
58400, 62283, 66294 35.105 Amended; interim ............... 13817
35 Authority citation revised........ 63878 35.115 (b), (d), (f) and (g) amended;
35.10000—35.10035 (Subpart Q) interim..................................... 13817
Added; interim ......................... 63878 35.155 (c) amended; interim ........... 13817
35.250 Amended; interim ............... 13817
1994 35.255 (b) amended; interim ........... 13817
35.260 (a) and (b) amended; in-
40 CFR 59 FR terim........................................ 13817
Page
35.265 (a) amended; interim ........... 13817
Chapter I 35.350 Introductory text amend-
9 Authority citation revised ......... 32339 ed; interim................................ 13817
9.1 Table amended (OMB num- 35.365 (a)(1) amended; interim ....... 13817
bers) ......................................... 4493, 35.400 Amended; interim ............... 13817
8412, 13146, 13564, 14106, 26449, 35.415 (a)(1) amended; interim ....... 13817
31335, 31541, 32342, 34097, 38372, 35.450 Amended; interim ............... 13817
46350, 47416, 50072, 59650, 59924, 35.465 (a)(1) amended; interim ....... 13817
60561, 61805, 62588, 62923, 64318, 35.750 Amended; interim ............... 13817
64593, 35.755 (a) and (b)(1) amended; in-
Table corrected (OMB numbers) terim........................................ 13817
................................................. 17154 35.1605–9 Amended; interim .......... 13817
Table amended (OMB numbers); 35.1620–1 (c) amended; interim....... 13817
eff. 7–22–94.................................32083 35.6105 (b)(5) revised ...................... 35853
Table amended; eff. 7–25–94 35.6400 (a)(1) and (2) revised ........... 35854
(OMB numbers) ......32339, 32340, 32341 35.9065 (b) removed; (c) redesig-
Table corrected (OMB numbers); nated as (b); new (b) introduc-
eff. 8–30–94.................................33913 tory text revised; interim ......... 61126
13 Authority citation revised........... 651
13.34—13.40 (Subpart H) Added; 1995
interim........................................ 651
15.3 Revised .................................. 50692 40 CFR 60 FR
Page
15.4 Amended................................ 50692
15.11 (c) amended .......................... 50692 Chapter I
15.12 (a) and (d) amended ............... 50692 9 Technical correction......... 27598, 35452
15.13 (a), (c), and (d) amended......... 50692 9.1 Table amended (OMB num-
15.14 Amended .............................. 50692 bers) ................................ 4962, 12676,
15.15 Amended .............................. 50692 15386, 17111, 18010, 20232, 20233,
15.16 (c) removed........................... 50692 25540, 28052, 29954, 32594, 34170,
15.20 Amended .............................. 50692 34334, 34598, 40496, 42792, 43258,
15.21 Amended .............................. 50692 43886, 45956, 48399, 62935, 63431
15.22 Amended .............................. 50692 OMB number; CFR correction .....10029
15.23 Amended .............................. 50692 Table amended (OMB numbers);
15.24 (a), (c) and (d) amended.......... 50692 interim; eff. 7–17–95...................26513
15.25 Heading, (a), (b) and (c) Regulation at 59 FR 62923 eff.
amended................................... 50692 date delayed to 12–6–95..............26828
15.26 (a) amended; (b) removed ...... 50692 Table corrected (OMB numbers)
15.27 Amended .............................. 50692 ................................................. 33462
15.32 Amended .............................. 50692 Regulation at 59 FR 62923 eff.
15.33 Amended .............................. 50692 date delayed to 6–6–96 ...............56952
15.40 Revised ................................ 50692 31.36 (d), (g), (h) and (i) revised ...... 19639,
15.41 Amended .............................. 50692 19644
16.14(a)(1) revised ............................ 17486 32 Authority citation revised........ 33059
32 Heading revised ........................ 50692 32.100 Revised; eff. 8–25–95 .... 33040, 33059
Authority citation revised ..........50692 32.105 Amended; eff. 8–25–95 .......... 33041,
32.105 (g)(3) and (t)(3) revised ......... 50692 33059
32.215 (a) revised ........................... 50693 32.110 (c) revised; eff. 8–25–95......... 33041,
32.335 (a) through (d) amended....... 50693 33059
683
Page Page
32.200 Revised; eff. 8–25–95 .... 33041, 33059 2.106 (b)(5) amended........................ 1833
32.215 Revised; eff. 8–25–95 .... 33041, 33059 3 Removed.................................... 43269
32.220 Revised; eff. 8–25–95 .... 33041, 33059 8 Added; interim ........................... 23545
32.225 Revised; eff. 8–25–95 .... 33041, 33059 9.1 Table amended (OMB num-
32 Appendixes A and B revised;
bers) .... 16493, 23363, 35099, 37722, 44413,
eff. 8–25–95........................ 33042, 33059
47119, 52398, 54715, 55474
35.105 Amended; interim .................. 371
35.115 (a) amended; interim .............. 371 19.2 Revised; eff. 7–28–97 ................ 35039
35.155 Second (c) correctly redes- 19.4 Table 1 correctly revised ........ 13515
ignated as (d).............................. 2881 Table 1 amended; eff. 7–28–97 ........35039
35.201 Added; interim ....................... 371 21.3 (a) table amended .................... 1833
35.205 Revised; interim .................... 371 22 Appendix amended ..................... 1833
35.210 (a) amended; interim .............. 371 30.26 (a), (b) and (c) revised ... 45939, 45944
35.800—35.845 (Subpart C) Re- 31.26 (a), (b) introductory text
moved ...................................... 33931 and (1) revised .................. 45939, 45944
35.850—35.880 (Subpart D) Re- 32.105 Amended............................. 47149
moved ...................................... 33931 32.335 (a) through (d) amended....... 47149
32.430 (a) through (d) amended....... 47149
1996
40 CFR 61 FR 1998
Page
Chapter I
40 CFR 63 FR
Page
3 Revised ...................................... 40503 Chapter I
5 Removed.................................... 41331
8 Removed.................................... 33674 Chapter I Product categories
9.1 Table amended (OMB num- final listing .............................. 48792
bers) .... 11106, 16309, 27140, 33206, 33851, 1.25 (e)(1) revised .......................... 67780
33852, 48229, 51366, 52295, 53854, 54039, 8.2 (d) revised; eff. 7–14–98 .............. 18326
66227, 67951 8.8 (b)(1) and (2) revised; eff. 7–14–
Table amended (OMB numbers); 98.............................................. 18326
eff. 7-31-96 .................................34228 9.1 Regulation at 61 FR 52295 eff.
15 Removed .................................. 28756 date corrected to 12–30–97 ............. 673
19 Added ....................................... 69364 Table amended (OMB numbers)
22.37 (g) added ............................... 11092 .......... 964, 1060, 1320, 7269, 7710, 15016,
27 Authority citation revised........ 69366 26720, 33250, 39739, 40657, 44132,
27.3 (a)(1) and (b)(1) revised............ 69366 48815, 48831, 50326, 53995, 56995,
30 Revised; interim ........................ 6067 69463, 69515, 71376
32 Heading revised ........................ 28756 Regulation at 61 FR 48229 eff.
Authority citation revised ..........28756 date corrected to 2–27–98 ............9944
32.100 (e) added.............................. 28756 35.105 Amended .............................. 7270
32.105 Amended............................. 28756 35.205 (c), (d) and (e) added............... 7270
32.110 (d) added ............................. 28757 35.210 (c) added ............................... 7270
32.115 (d) revised ........................... 28757 35.215 Revised ................................ 7270
32.215 Revised ............................... 28757
35.220 Added ................................... 7271
32.315 (c) added.............................. 28757
32.321 Added ................................. 28757 49 Added ........................................ 7271
32.330 Removed............................. 28757
32.425 Removed............................. 28757 1999
33 Removed; interim ...................... 6067 40 CFR 64 FR
39 Removed .................................. 64291 Page
Chapter I
1997 9.1 Table amended (OMB num-
40 CFR 62 FR bers) ....... 3028, 7047, 23919, 25134, 27458,
Page 29503, 31375, 31708, 33589, 35002, 36585,
Chapter I 37636, 42461, 43937, 66393, 68565, 68837,
1.7 (b)(5) amended........................... 1833 69637
684
VerDate 11<MAY>2000 15:10 Aug 02, 2000 Jkt 190136 PO 00000 Frm 00036 Fmt 8060 Sfmt 8060 Y:\SGML\190136B.XXX pfrm04 PsN: 190136B
Page Page
Introductory text revised; table 9.1 Table amended (OMB num-
amended (OMB numbers)..........27920 bers) ..... 2003, 15090, 20309, 26021, 26497,
Regulation at 64 FR 42461 eff. 39303, 40524
date corrected to 12–2–99 ...........43426 Regulation at 65 FR 20309 with-
Table amended (OMB numbers); drawn .......................................37052
eff. 1–1–01 ..................................50610
Table corrected (OMB numbers)
22 Revised .................................... 40176
................................................. 40521
35.251 Added ................................. 23736
35.252 Added ................................. 23737 22 Heading and authority cita-
49.22 Added ................................... 65663 tion revised .............................. 30904
22.1 (a)(4) and (6) revised................ 30904
2000 22.3 (a) amended............................ 30904
22.44 Added ................................... 30904
(Regulations published from January 1, 30 Heading and authority cita-
2000, through July 1, 2000) tion revised .............................. 14417
40 CFR 65 FR 30.36 (c) revised; (d) redesignated
Page as (e); new (d) added; new (d)(1)
Chapter I amended; interim ............ 14407, 14417
9 Authority citation corrected ..... 40521 49 Clarification .............................. 1322
685
VerDate 11<MAY>2000 15:10 Aug 02, 2000 Jkt 190136 PO 00000 Frm 00037 Fmt 8060 Sfmt 8006 Y:\SGML\190136B.XXX pfrm04 PsN: 190136B

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40

Containing a Codification of documents

As a Special Edition of the Federal Register

For sale by U.S. Government Printing Office

Chapter I—Environmental Protection Agency ................................ 3

Table of CFR Titles and Chapters ....................................................... 651

Alphabetical List of Agencies Appearing in the CFR ......................... 669

List of CFR Sections Affected ............................................................. 679

To cite the regulations in

Title 40—PROTECTION OF ENVIRONMENT is composed of twenty–four volumes.

Chapter I—Environmental Protection Agency appears in all twenty–four vol-

CHAPTER I—Environmental Protection Agency ..................... 1

23 Judicial review under EPA—Administered statutes 247

PART 1—STATEMENT OF ORGANI- 1970 transferred to EPA a variety of re-

activities in the Office’s area of respon- develops programs to stimulate and

(3) Qualifications. Each member of the nates Agency international contacts

and compliance with established poli- pervision of the Assistance Adminis-

State and local environmental legisla- Deputy Administrator in relations

major new Agency initiatives; liaison ministrator in matters pertaining to

Technology Demonstration (OEETD) in the Office of Research and Develop-

movement in the environmental, accu- its laboratories and Headquarters

Agency. In particular, this Office is re- implementation of Subtitle I of the Re-

and approaches to unaddressed prob- for comprehensive and integrated envi-

Subpart B—Confidentiality of Business tion, and Liability Act of 1980, as amend-

include copies of the records of other higher education, an institution or pro-

the option of the Freedom of Informa- minations by the Office of Inspector

§ 2.117 Time allowed for issuance of § 2.118 Exemption categories.

be furnished without charge. Request- (iv) Duplication or reproduction of

(vii) For furnishing records requested through administrative offset or re-

§ 2.121 Exclusions. the benefit of any private shareholder

(1) The submission of which EPA had of whether information is entitled to

whether it is possible to obtain the af- which is submitting information to

possible shall be provided. Where no- (ii) Disclosure to the Department of

EPA office, officer, or employee with § 2.211 Safeguarding of business infor-

§§ 2.216–2.300 [Reserved] any component thereof) designed and

been required under section 114, regard- (d) [Reserved]

information to which this section ap- ceeding, the contemplated disclosure

commence an action in an appropriate may be disclosed by EPA when the in-

to the contractor or subcontractor mination in writing whether disclosure

statement or application for registra- plementation of the determination, the

employees of any such persons or agen- petitioner, solely in support of a peti-

§§ 2.209 through 2.215 apply without presiding officer determines in writing

§ 2.402 Policy on presentation of testi- ministrator or Staff Office Director,

§ 2.406 Requests for authenticated cop- 6.101 Definitions.

Subpart F—Environmental Review Proce- Subpart A—General

6.1001 Purpose and policy. § 6.101 Definitions.

to throughout this regulation by ref- Elimination System (NPDES) permits

(i) Requiring applicants, contractors, matters of EPA policy and administra-

(b) Responsibilities for subpart E—(1) § 6.104 Early involvement of private

(c) Environmental reviews. Environ- essary to make the recommended al-

noise levels, surface water or ground- issues raised by governmental agencies

16 U.S.C. 469 et seq., and Executive ing archeological preservation activi-

them if no practicable alternative ex- program, a consistency determination

hereafter authorized, without advising vent and compensate for project-re-

Subpart D—Public and Other sponse. The responsible official shall

public in accordance with 40 CFR § 6.501(b) and building as described in

(i) Completed the environmental re- Step 1 facilities planning grantee

projects awarded Step 1 grant assist- velopment. These meetings should be

cover all potentially significant envi- ronmental impacts should be clearly

(vii) Appropriate energy reduction (c) FNSI/EIS determination. The re-

(A) Reaffirm—issue a public notice re- § 6.510 Environmental Impact State-

(B) Supplement—conduct additional should be coordinated with any other

statement prepared by the responsible tors that should be considered in deter-