Title 40—Protection of Environment--Volume 1
PART 35—STATE AND LOCAL ASSISTANCE
§ 35.3570   Reports and audits.
(a) Biennial report —(1) General. A State must submit a Biennial Report to the RA describing how it has met the goals and objectives of the previous two fiscal years as stated in the IUPs and capitalization grant agreements, including the most recent audit of the Fund and the entire State allotment. The State must submit this report to the RA according to the schedule established in the capitalization grant agreement. Information provided in the Biennial Report on other EPA programs eligible for assistance from the DWSRF program may not replace the reporting requirements for those other programs.
(2) Financial report. As part of the Biennial Report, a State must present the financial status of the DWSRF program, including the total dollar amount in fee accounts. This report must, at a minimum, include the financial statements and footnotes required under GAAP to present fairly the financial condition and results of operations.
(3) Matters to establish in the biennial report. A State must establish in the Biennial Report that it has complied with section 1452 of the Act and this subpart. In particular, the Biennial Report must demonstrate that a State has:
(i) Managed the DWSRF program in a fiscally prudent manner and adopted policies and processes which promote the long-term financial health of the Fund;
(ii) Deposited its match (cash or State LOC) into the Fund in accordance with the requirements of § 35.3550(g);
(iii) Made binding commitments with assistance recipients to provide assistance from the Fund consistent with the requirements of § 35.3550(e);
(iv) Funded only the highest priority projects listed in the IUP and documented why priority projects were bypassed in accordance with § 35.3555(c)(2);
(v) Provided assistance only to eligible public water systems and for eligible projects and project-related costs under § 35.3520;
(vi) Provided assistance only for eligible set-aside activities under § 35.3535 and conducted activities consistent with workplans and other requirements of § 35.3535 and § 35.3540;
(vii) Provided loan assistance to small systems consistent with the requirements of § 35.3525(a)(5) and § 35.3555(c)(2)(iv);
(viii) Provided assistance to disadvantaged communities consistent with the requirements of § 35.3525(b) and § 35.3555(c)(7);
(ix) Used fees for eligible purposes under § 35.3530(b)(2) and (b)(3) and assessed fees included as principal in a loan in accordance with the limitations in § 35.3530(b)(3)(i) through (b)(3)(iii);
(x) Adopted and implemented procedures consistent with the requirements of § 35.3530(c) and § 35.3555(c)(8) if funds were transferred between the DWSRF program and CWSRF program;
(xi) Adopted and implemented procedures consistent with the requirements of § 35.3530(d) and § 35.3555(c)(9) if Fund assets of the DWSRF program and CWSRF program were cross-collateralized;
(xii) Reviewed all DWSRF program funded projects and activities for compliance with Federal cross-cutting authorities that apply to the State as a grant recipient and those which apply to assistance recipients in accordance with § 35.3575;
(xiii) Reviewed all DWSRF program funded projects and activities in accordance with approved State environmental review procedures under § 35.3580; and
(xiv) Complied with 2 CFR part 200, the EPA general assistance regulations in 2 CFR part 1500 and the specific conditions of the grant.
(4) Joint report. A State which jointly administers the DWSRF program and the CWSRF program may submit a report that addresses both programs. However, programmatic and financial information for each program must be identified separately.
(b) Audit. (1) A State must comply with the provisions of the Single Audit Act Amendments of 1996, 31 U.S.C. 7501-7, 2 CFR part 200 and the Office of Management and Budget's Compliance Supplement.
(2) A State may voluntarily agree to conduct annual independent audits which provide an auditor's opinion on the DWSRF program financial statements, reports on internal controls, and reports on compliance with section 1452 of the Act, applicable regulations, and general grant requirements. The agreement to conduct voluntary independent audits should be documented in the Operating Agreement or in another part of the capitalization grant agreement.
(3) Those States that do not conduct independent audits will be subject to periodic audits by the EPA Office of Inspector General.
(c) Annual review —(1) Purpose. The purpose of the annual review is to assess the success of the State's performance of activities identified in the IUP, Biennial Report (in years when it is submitted), and Operating Agreement (if used) and to determine compliance with the capitalization grant agreement, requirements of section 1452 of the Act, and this subpart. The RA will complete the annual review according to the schedule established in the capitalization grant agreement.
(2) Records access. After reasonable notice by the RA, the State or assistance recipient must make available such records as the RA reasonably considers pertinent to review and determine State compliance with the capitalization grant agreement and requirements of section 1452 of the Act and this subpart. The RA may conduct on-site visits as deemed necessary to perform the annual review.
(d) Information management system —(1) Purpose. The purpose of the information management system is to assess the DWSRF programs, to monitor State progress in years in which Biennial Reports are not submitted, and to assist in conducting annual reviews.
(2) Reporting. A State must annually submit information to EPA on the amount of funds available and assistance provided by the DWSRF program.
§ 35.3575   Application of Federal cross-cutting authorities (cross-cutters).
(a) General. A number of Federal laws, executive orders, and government-wide policies apply by their own terms to projects and activities receiving Federal financial assistance, regardless of whether the statute authorizing the assistance makes them applicable. A few cross-cutters apply by their own terms only to the State as the grant recipient because the authorities explicitly limit their application to grant recipients.
(b) Application of cross-cutter requirements. Except as provided in paragraphs (c) and (d) of this section and in § 35.3580, cross-cutter requirements apply in the following manner:
(1) All projects for which a State provides assistance in amounts up to the amount of the capitalization grant deposited into the Fund must comply with the requirements of the cross-cutters. Activities for which a State provides assistance from capitalization grant funds deposited into set-aside accounts must comply with the requirements of the cross-cutters, to the extent that the requirements of the cross-cutters are applicable.
(2) Projects and activities for which a State provides assistance in amounts that are greater than the amount of the capitalization grant deposited into the Fund or set-aside accounts are not subject to the requirements of the cross-cutters.
(3) A State that elects to impose the requirements of the cross-cutters on projects and activities for which it provides assistance in amounts that are greater than the amount of the capitalization grant deposited into the Fund or set-aside accounts may credit this excess to meet future cross-cutter requirements on assistance provided from the respective accounts.
(c) Federal anti-discrimination law requirements. All programs, projects, and activities for which a State provides assistance are subject to the following Federal anti-discrimination laws: Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d et seq.; section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794; and the Age Discrimination Act of 1975, as amended, 42 U.S.C. 6102.
(d) [Reserved]
(e) Complying with cross-cutters. A State is responsible for ensuring that assistance recipients comply with the requirements of cross-cutters, including initiating any required consultations with State or Federal agencies responsible for individual cross-cutters. A State must inform EPA when consultation or coordination with other Federal agencies is necessary to resolve issues regarding compliance with cross-cutter requirements.
§ 35.3580   Environmental review requirements.
(a) General. With the exception of activities identified in paragraph (b) of this section, a State must conduct environmental reviews of the potential environmental impacts of projects and activities receiving assistance.
(b) Activities excluded from environmental reviews. A State must conduct environmental reviews of source water protection activities under § 35.3535, unless the activities solely involve administration (e.g., personnel, equipment, travel) or technical assistance. A State is not required to conduct environmental reviews of all the other eligible set-aside activities under § 35.3535 because EPA has determined that, due to their nature, they do not individually, cumulatively over time, or in conjunction with other actions have a significant effect on the quality of the human environment. A State does not need to include provisions in its SERP for excluding these activities. Activities excluded from environmental reviews remain subject to other applicable Federal cross-cutting authorities under § 35.3575.
(c) Tier I environmental reviews. All projects that are assisted by the State in amounts up to the amount of the capitalization grant deposited into the Fund must be reviewed in accordance with a SERP that is functionally equivalent to the review undertaken by EPA under the National Environmental Policy Act (NEPA). With the exception of activities excluded from environmental reviews in paragraph (b) of this section, activities for which a State provides assistance from capitalization grant funds deposited into set-aside accounts must also be reviewed in accordance with a SERP that is functionally equivalent to the review undertaken by EPA under the NEPA. A State may elect to apply the procedures at 40 CFR part 6 and related subparts or apply its own “NEPA-like” SERP for conducting environmental reviews, provided that the following elements are met:
(1) Legal foundation. A State must have the legal authority to conduct environmental reviews of projects and activities receiving assistance. The legal authority and supporting documentation must specify:
(i) The mechanisms to implement mitigation measures to ensure that a project or activity is environmentally sound;
(ii) The legal remedies available to the public to challenge environmental review determinations and enforcement actions;
(iii) The State agency that is primarily responsible for conducting environmental reviews; and
(iv) The extent to which environmental review responsibilities will be delegated to local recipients and will be subject to oversight by the primary State agency.
(2) Interdisciplinary approach. A State must employ an interdisciplinary approach for identifying and mitigating adverse environmental effects including, but not limited to, those associated with other cross-cutting Federal environmental authorities.
(3) Decision documentation. A State must fully document the information, processes, and premises that influence its decisions to:
(i) Proceed with a project or activity contained in a finding of no significant impact (FNSI) following documentation in an environmental assessment (EA);
(ii) Proceed or not proceed with a project or activity contained in a record of decision (ROD) following preparation of a full environmental impact statement (EIS);
(iii) Reaffirm or modify a decision contained in a previously issued categorical exclusion (CE), EA/FNSI or EIS/ROD following a mandatory 5 year environmental reevaluation of a proposed project or activity; and
(iv) If a State elects to implement processes for either partitioning an environmental review or categorically excluding projects or activities from environmental review, the State must similarly document these processes in its proposed SERP.
(4) Public notice and participation. A State must provide public notice when: a CE is issued or rescinded; a FNSI is issued but before it becomes effective; a decision that is issued 5 years earlier is reaffirmed or revised; and prior to initiating an EIS. Except with respect to a public notice of a CE or reaffirmation of a previous decision, a formal public comment period must be provided during which no action on a project or activity will be allowed. A public hearing or meeting must be held for all projects and activities except for those having little or no environmental effect.
(5) Alternatives consideration. A State must have evaluation criteria and processes which allow for:
(i) Comparative evaluation among alternatives, including the beneficial and adverse consequences on the existing environment, the future environment, and individual sensitive environmental issues that are identified by project management or through public participation; and
(ii) Devising appropriate near-term and long-range measures to avoid, minimize, or mitigate adverse impacts.
(d) Tier II environmental reviews. A State may elect to apply an alternative SERP to all projects and activities (except those activities excluded from environmental reviews in paragraph (b) of this section) for which a State provides assistance in amounts that are greater than the amount of the capitalization grant deposited into the Fund or set-aside accounts, provided that the process:
(1) Is supported by a legal foundation which establishes the State's authority to review projects and activities;
(2) Responds to other environmental objectives of the State;
(3) Provides for comparative evaluations among alternatives and accounts for beneficial and adverse consequences to the existing and future environment;
(4) Adequately documents the information, processes, and premises that influence an environmental determination; and
(5) Provides for notice to the public of proposed projects and activities and for the opportunity to comment on alternatives and to examine environmental review documents. For projects or activities determined by the State to be controversial, a public hearing must be held.
(e) Categorical exclusions (CEs). A State may identify categories of actions which do not individually, cumulatively over time, or in conjunction with other actions have a significant effect on the quality of the human environment and which the State will exclude from the substantive environmental review requirements of its SERP. Any procedures under this paragraph must provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.
(f) Environmental reviews for refinanced projects or reimbursed project costs. A State must conduct an environmental review which considers the impacts of a project based on conditions of the site prior to initiation of the project. Failure to comply with the environmental review requirements cannot be justified on the grounds that costs have already been incurred, impacts have already been caused, or contractual obligations have been made prior to the binding commitment.
(g) EPA approval process. The RA must review and approve any State “NEPA-like” and alternative procedures to ensure that the requirements for Tier I and Tier II environmental reviews have been met. The RA will conduct these reviews on the basis of the criteria for evaluating NEPA-like reviews contained in Appendix A to this subpart.
(h) Modifications to approved SERPs. Significant changes to State environmental review procedures must be approved by the RA.
§ 35.3585   Compliance assurance procedures.
(a) Causes. The RA may take action under this section and the remedies of noncompliance of 2 CFR 200.339 through 200.343, if a determination is made that a State has not complied with its capitalization grant agreement, other requirements under section 1452 of the Act, this subpart, 2 CFR parts 200 and 1500, or has not managed the DWSRF program in a financially sound manner (e.g., allows consistent and substantial failures of loan repayments).
(b) RA's course of action. For cause under paragraph (a) of this section, the RA will issue a notice of non-compliance and may prescribe appropriate corrective action. A State's corrective action must remedy the specific instance of non-compliance and adjust program management to avoid non-compliance in the future.
(c) Consequences for failure to comply. (1) If within 60 days of receipt of the non-compliance notice a State fails to take the necessary actions to obtain the results required by the RA or fails to provide an acceptable plan to achieve the results required, the RA may suspend payments until the State has taken acceptable actions. Once a State has taken the corrective action deemed necessary and adequate by the RA, the suspended payments will be released and scheduled payments will recommence.
(2) If a State fails to take the necessary corrective action deemed adequate by the RA within 12 months of receipt of the original notice, any suspended payments will be deobligated and reallotted to eligible States. Once a payment has been made for the Fund, that payment and cash draws from that payment will not be subject to withholding. All future payments will be withheld from a State and reallotted until such time that adequate corrective action is taken and the RA determines that the State is back in compliance.
(d) Dispute resolution. A State or an assistance recipient that has been adversely affected by an action or omission by EPA may request a review of the action or omission under 2 CFR part 1500, subpart E.
§ 35.4000   Authority.
The Environmental Protection Agency (“EPA”) issues this subpart under section 117(e) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended, 42 U.S.C. 9617(e).
§ 35.4005   What is a Technical Assistance Grant?
A Technical Assistance Grant (TAG) provides money for your group to obtain technical assistance in interpreting information with regard to a Superfund site. EPA awards TAGs to promote public participation in decision making at eligible sites. A TAG allows your group to procure independent technical advisors to help you interpret and comment on site-related information and decisions. Examples of how a technical advisor can help your group include, but are not limited to:
(a) Reviewing preliminary site assessment/site investigation data;
(b) Participating in public meetings to help interpret information about site conditions, proposed remedies, and the implementation of a remedy;
(c) Visiting the site vicinity periodically during cleanup, if possible, to observe progress and provide technical updates to your group; and
(d) Evaluate future land use options based on land use assumptions found in the “remedial investigation/feasibility study.”
§ 35.4010   What does this subpart do?
This subpart establishes the program-specific regulations for TAGs awarded by EPA.
§ 35.4011   Do the general grant regulations apply to TAGs?
Yes, the regulations at 2 CFR part 200 and 2 CFR Part 1500 apply to TAGs. 2 CFR part 200, as supplemented by 2 CFR part 1500, establishes the uniform administrative requirements for Federal grants.
§ 35.4012   If there appears to be a difference between the requirements of 2 CFR Parts 200 and 1500 and this subpart, which regulations should my group follow?
You should follow the regulations in 2 CFR part 200 and 2 CFR part 1500, except for the following provisions from which this subpart deviates:
(a) 2 CFR 200.305(b)(1) and (2), Payment
(b) 2 CFR 200.320, Methods of procurement to be followed.
(c) 2 CFR 200.325(b)(2), Federal awarding agency or pass-through entity review.
(d) 2 CFR 200.324, Cost or price analysis.
(e) 2 CFR part 1500 Subpart E—Disputes.
§ 35.4015   Do certain words in this subpart have specific meaning?
Yes, some words in this subpart have specific meanings that are described in§ 35.4270, Definitions. The first time these words are used they are marked with quotation marks, for example, “EPA.”
§ 35.4020   Is my community group eligible for a TAG?
(a) Yes, your community group is eligible for a TAG if:
(1) You are a group of people who may be “affected” by a release or a threatened release at any facility listed on the National Priorities List (“NPL”) or proposed for listing under the National Contingency Plan (NCP) where a “response action” under CERCLA has begun;
(2) Your group meets the minimum administrative and management capability requirements found in 2 CFR 200.302 by demonstrating you have or will have reliable procedures for record keeping and financial accountability related to managing your TAG (you must have these procedures in place before your group incurs any expenses); and
(3) Your group is not ineligible according to paragraph (b) of this section.
(b) No, your community group is not eligible for a TAG if your group is:
(1) A “potentially responsible party” (PRP), receives money or services from a PRP, or represents a PRP;
(2) Not incorporated as a nonprofit organization for the specific purpose of representing affected people except as provided in § 35.4045;
(3) “Affiliated” with a national organization;
(4) An academic institution;
(5) A political subdivision (for example, township or municipality); or
(6) Established or presently sustained by ineligible entities that paragraphs (b) (1) through (5) of this section describe, or if any of these ineligible entities are represented in your group.
§ 35.4025   Is there any way my group can get a TAG if it is currently ineligible?
You can make your group eligible by establishing an identity separate from that of the PRP or other ineligible entity by making a reasonable demonstration of independence from the ineligible entity. Such a demonstration requires, at a minimum, a showing that your group has a separate and distinct:
(a) Formal legal identity (for example, your group has different officers); and
(b) Substantive existence (meaning, is not affiliated with an ineligible entity), including its own finances.
(1) In determining whether your group has a different substantive existence from the ineligible entity, you must establish for us that your group:
(i) Is not controlled either directly or indirectly, by the ineligible entity; and
(ii) Does not control, either directly or indirectly, an ineligible entity.
(2) You must also establish for EPA that a third group does not have the power to control both your group and an ineligible entity.
§ 35.4030   Can I be part of a TAG group if I belong to an ineligible group?
You may participate in your capacity as an individual in a group receiving a TAG, but you may not represent the interests of an ineligible entity. However, we may prohibit you from participating in a TAG group if the “award official” determines you have a significant financial involvement in a PRP.
§ 35.4035   Does EPA use the same eligibility criteria for TAGs at “Federal facility” sites?
Yes, EPA uses the same criteria found in § 35.4020 in evaluating the eligibility of your group or any group of individuals who may be affected by a release or a threatened release at a Federal facility for a TAG under this subpart.
§ 35.4040   How many groups can receive a TAG at one Superfund site?
(a) Only one TAG may be awarded for a site at any one time. However, the recipient of the grant can be changed when:
(1) EPA and the recipient mutually agree to terminate the current TAG or the recipient or EPA unilaterally terminates the TAG; or
(2) The recipient elects not to renew its grant even though it is eligible for additional funding.
(b) In each of the situations described in paragraph (a) of this section the following information applies:
(1) If you are a subsequent recipient of a TAG, you are not responsible for actions taken by the first recipient, nor are you responsible for how the first recipient expended the funds received from EPA; and
(2) The process for changing recipients begins when an interested applicant submits a Letter of Intent (“LOI”) to the Agency expressing interest in a TAG as described in § 35.4105. We will then follow the application procedure set forth at §§ 35.4105 through 35.4165.
§ 35.4045   What requirements must my group meet as a TAG recipient?
Your group, including those groups which form out of a coalition agreement, must incorporate as a nonprofit corporation for the purpose of participating in decision making at the Superfund site for which we provide a TAG. However, a group that was previously incorporated as a nonprofit organization and includes all individuals and groups who joined in applying for the TAG is not required to reincorporate for the specific purpose of representing affected individuals at the site, if in EPA's discretionary judgment, the group has a history of involvement at the site. You must also:
(a) At the time of award, demonstrate that your group has incorporated as a nonprofit organization or filed the necessary documents for incorporation with the appropriate State agency; and
(b) At the time of your first request for reimbursement or advance payment, submit proof that the State has incorporated your group as a nonprofit organization.
§ 35.4050   Must my group contribute toward the cost of a TAG?
(a) Yes, your group must contribute 20 percent of the total cost of the TAG project unless EPA waives the match under § 35.4055.
(b) Under 2 CFR 200.306, your group may use “cash” and/or “in-kind contributions” (for example, your board members can count their time toward your matching share) to meet the matching funds requirement. Without specific statutory authority, you may not use Federal funds to meet the required match.
§ 35.4055   What if my group can't come up with the “matching funds?”
(a) EPA may waive all or part of your matching funds requirement if we:
(1) Have not issued the “Record of Decision” (“ROD”) at the last “operable unit” for the site (in other words, if EPA has not already made decisions on the final cleanup actions at the site); and
(2) Determine, based on evidence in the form of documentation provided by your group, that:
(i) Your group needs a waiver because providing the match would be a financial hardship to your group (for example, your local economy is depressed and coming up with in-kind contributions would be difficult); and
(ii) The waiver is necessary to help your community participate in selecting a remedial action at the site.
(b) If your group receives a waiver of the matching funds after your initial award, your grant agreement must be amended.
§ 35.4060   How much money can my group receive through a TAG?
The following table shows how much money your group can receive through a TAG:
§ 35.4065   How can my group get more than $50,000?
(a) The EPA regional office award official for your grant may waive your group's $50,000 limit if your group demonstrates that:
(1) If it received previous TAG funds, you managed those funds effectively; and
(2) Site(s) characteristics indicate additional funds are necessary due to the nature or volume of site-related information. In this case, three of the ten factors below must occur:
(i) A Remedial Investigation/Feasibility Study (“RI/FS”) costing more than $2 million is performed;
(ii) Treatability studies or evaluation of new and innovative technologies are required as specified in the Record of Decision;
(iii) EPA reopens the Record of Decision;
(iv) The site public health assessment (or related activities) indicates the need for further health investigations and/or health promotion activities;
(v) EPA designates one or more additional operable units after awarding the TAG;
(vi) The agency leading the cleanup issues an “Explanation of Significant Differences” (ESD);
(vii) A legislative or regulatory change results in new site information after EPA awards the TAG;
(viii) EPA expects a cleanup lasting more than eight years from the beginning of the RI/FS through construction completion;
(ix) Significant public concern exists, where large groups of people in the community require many meetings, copies, etc.; and
(x) Any other factor that, in EPA's judgment, indicates that the site is unusually complex.
(b) Your group can also receive more than $50,000 if you are geographically close to more than one eligible site (for example, two or more sites × $50,000 = grant of $100,000) and your group wishes to receive funding for technical assistance to address multiple eligible sites.
§ 35.4070   How can my group spend TAG money?
(a) Your group must use all or most of your funds to procure a technical advisor(s) to help you understand the nature of the environmental and public health hazards at the site, the various stages of health and environmental investigations and activities, cleanup, and “operation and maintenance” of a site, including exposure investigation, health study, surveillance program, health promotion activities (for example, medical monitoring and pediatric health units), remedial investigation, and feasibility study, record of decision, remedial design, selection and construction of remedial action, operation and maintenance, and removal action. This technical assistance should contribute to the public's ability to participate in the decision making process by improving the public's understanding of overall conditions and activities at the site.
(b) Your group may use a portion of your funds to:
(1) Undertake activities that communicate site information to the public through newsletters, public meetings or other similar activities;
(2) Procure a grant administrator to manage your group's grant; and/or
(3) Provide one-time health and safety training for your technical advisor to gain site access to your local Superfund site. To provide this training, you must:
(i) Obtain written approval from the EPA regional office; and
(ii) Not spend more than $1,000.00 for this training, including travel, lodging and other related costs.
§ 35.4075   Are there things my group can't spend TAG money for?
Your TAG funds cannot be used for the following activities:
(a) Lawsuits or other legal actions;
(b) Attorney fees for services:
(1) Connected to any kind of legal action; or
(2) That could, if such a relationship were allowable, be interpreted as resulting in an attorney/client relationship to which the attorney/client privilege would apply;
(c) The time of your technical advisor to assist an attorney in preparing a legal action or preparing and serving as an expert witness at any legal proceeding;
(d) Political activity and lobbying that is unallowable under 2 CFR part 200 Subpart E—Cost Principles, (this restriction includes activities such as attempting to influence the outcomes of any Federal, State or local election, referendum, initiative, or similar procedure through in-kind or cash contributions, endorsements, or publicity, or attempting to influence the introduction or passage of Federal or state legislation; this regulation is available at http://www.ecfr.gov .)
(e) Other activities that are unallowable under the cost principles stated in 2 CFR part 200 Subpart E—Cost Principles (such as costs of amusement, diversion, social activities, fund raising and ceremonials);
(f) Tuition or other training expenses for your group's members or your technical advisor except as § 35.4070(b)(3) allows;
(g) Any activities or expenditures for your group's members' travel;
(h) Generation of new primary data such as well drilling and testing, including split sampling;
(i) Reopening or challenging final EPA decisions such as:
(1) Records of Decision; and/or
(2) Disputes with EPA under its dispute resolution procedures set forth 2 CFR Part1500 Subpart E (see § 35.4245); and
(j) Generation of new health data through biomedical testing (for example, blood or urine testing), clinical evaluations, health studies, surveillance, registries, and/or public health interventions.
§ 35.4080   Does my group get a lump sum up front, or does EPA reimburse us for costs we incur?
(a) EPA pays your group by reimbursing you for “allowable” costs, which are costs that are:
(1) Grant related;
(2) “Allocable”;
(3) “Reasonable”; and
(4) Necessary for the operation of the organization or the performance of the award.
(b) You will be reimbursed for the allowable costs up to the amount of the TAG if your group incurred the costs during the approved “project period” of the grant (except for allowable costs of incorporation which may be incurred prior to the project period), and your group is legally required to pay those costs.
§ 35.4085   Can my group get an “advance payment” to help us get started?
Yes, a maximum of $5,000.00 in the form of an advance payment is available to new recipients.
§ 35.4090   If my group is eligible for an advance payment, how do we get our funds?
(a) Your group must submit in writing a request for an advance payment and identify what activities, goods or services your group requires.
(b) Your EPA regional office project officer identified in your award document must approve the items for which your group seeks advance funding.
(c) Upon approval of your request, EPA will advance cash (in the form of a check or electronic funds transfer) to your group, up to $5,000, to cover its estimated need to spend funds for an initial period generally geared to your group's cycle of spending funds.
(d) After the initial advance, EPA reimburses your group for its actual cash disbursements.
§ 35.4095   What can my group pay for with an advance payment?
(a) Advance payments may be used only for the purchase of supplies, postage, the payment of the first deposit to open a bank account, the rental of equipment, the first month's rent of office space, advertisements for technical advisors and other items associated with the start up of your organization specifically requested in your advance payment request and approved by your EPA project officer.
(b) Advance payments must not be used for contracts for technical advisors or other contractors.
(c) Advance payments are not available for the costs of incorporation.
§ 35.4100   Can my group incur any costs prior to the award of our grant?
(a) The only costs you may incur prior to the award of a grant from EPA are costs associated with incorporation but you do so at your own risk.
(b) If you are awarded a TAG, EPA may reimburse you for preaward incorporation costs or allow you to count the costs toward your matching funds requirement if the costs are:
(1) Necessary and reasonable for incorporation; and
(2) Incurred for the sole purpose of complying with this subpart's requirement that your group be incorporated as a nonprofit corporation.
§ 35.4105   What is the first step for getting a TAG?
To let EPA know of your group's interest in obtaining a TAG, your group should first submit to its EPA regional office a Letter of Intent. (The addresses of EPA's regional offices' TAG Coordinators are listed in § 35.4275.)
§ 35.4106   What information should an LOI include?
The LOI should clearly state that your group intends to apply for a TAG, and should identify:
(a) The name of your group;
(b) The Superfund site(s) for which your group intends to submit an application; and
(c) Provide the name of a contact person in the group and his or her mailing address and telephone number.
§ 35.4110   What does EPA do once it receives the first LOI from a group?
The following table shows what EPA does when it receives the first LOI from a group:
§ 35.4115   After the public notice that EPA has received an LOI, how much time does my group have to form a coalition or submit a separate LOI?
Your group has 30 days (from the date the public notice appears in your local newspaper) to submit documentation that you have formed a coalition with the first group and any other groups, or to submit a separate LOI. This 30-day period is the first 30 days with which your group must be concerned.
§ 35.4120   What does my group do next?
(a) After you submit an LOI, you must determine whether your application is subject to Federal intergovernmental review requirements under 40 CFR part 29 or intergovernmental review procedures established in state or local law.
(b) To determine whether your TAG application is subject to Federal intergovernmental review, you must consult EPA's list of financial assistance programs subject to intergovernmental review under 40 CFR part 29 posted at https://www.epa.gov/grants/epa-financial-assistance-programs-subject-executive-order-12372-and-section-204-demonstration (EPA IR List). The EPA IR List identifies the Assistance Listing Numbers for EPA financial assistance programs that have Federal intergovernmental review requirements. The Assistance Listing Number for the TAG program is 66.806.
§ 35.4125   What else does my group need to do?
Once you've determined whether Federal intergovernmental review requirements apply, you must prepare a TAG application on EPA SF-424, Application for Federal Assistance, or those forms and instructions provided by EPA that include:
(a) A “budget”;
(b) A scope of work;
(c) Assurances, certifications and other pre-award paperwork as 2 CFR part 200 requires. Your EPA regional office will provide you with the required forms.
§ 35.4130   What must be included in my group's budget?
Your budget must clearly show how:
(a) You will spend the money and how the spending meets the objectives of the TAG project;
(b) Your group will provide the required cash and/or in-kind contributions; and
(c) Your group derived the figures included in the budget.
§ 35.4135   What period of time should my group's budget cover?
The period of time your group's budget covers (the “funding period” of your grant) will be:
(a) One which best accommodates your needs;
(b) Negotiated between your group and EPA; and
(c) Stated in the “award document.”
§ 35.4140   What must be included in my group's work plan?
(a) Your scope of work must clearly explain how your group:
(1) Will organize;
(2) Intends to use personnel you will procure for management/coordination and technical advice; and
(3) Will share and disseminate information to the rest of the affected community.
(b) Your scope of work must also clearly explain your project's milestones and the schedule for meeting those milestones.
(c) Finally, your scope of work must explain how your board of directors, technical advisor(s) and “project manager” will interact with each other.
§ 35.4145   How much time do my group or other interested groups have to submit a TAG application to EPA?
(a) Your group must file your application with your EPA regional office within the second 30 days after the date the public notice appears in your local newspaper announcing that EPA has received an LOI. This second 30-day period begins on the day after the first 30-day period § 35.4115 describes ends. EPA will only accept applications from groups that submitted an LOI within 30 days from the date of that public notice.
(b) If your group requires more time to file a TAG application, you may submit a written request asking for an extension. If EPA decides to extend the time period for applications in response to your request, it will notify, in writing, all groups that submitted an LOI of the new deadline for submitting TAG applications.
(c) EPA will not accept other applications or requests for extensions after the final application deadline has passed.
§ 35.4150   What happens after my group submits its application to EPA?
(a) EPA will review your application and send you a letter containing written comments telling you what changes need to be made to the application to make it complete.
(b) Your group has 90 days from the date on the EPA letter to make the changes to your application and resubmit it to EPA.
(c) Once the 90-day period ends, EPA will begin the process to select a TAG recipient, or, in the case of a single applicant, if, EPA does not receive a complete application (meaning, an application that does not have the changes provided in the letter described in paragraph (b) of this section), then EPA will readvertise the fact that a TAG is available and the award process will begin again.
§ 35.4155   How does EPA decide whether to award a TAG to our group?
Once EPA determines your group meets the eligibility requirements in § 35.4020 the Agency considers whether and how successfully your group meets these criteria, each of which are of equal weight:
(a) Representation of groups and individuals affected by the site;
(b) Your group's plans to use the services of a technical advisor throughout the Superfund response action; and
(c) Your group's ability and plan to inform others in the community of the information provided by the technical advisor.
§ 35.4160   What does EPA do if more than one group applies for a TAG at the same site?
When multiple groups apply, EPA will rank each applicant relative to other applicants using the criteria in § 35.4155.
§ 35.4161   Does the TAG application process affect the schedule for work at my site?
No, the schedule for response activities at your site is not affected by the TAG process.
§ 35.4165   When does EPA award a TAG?
(a) EPA may award TAGs throughout the Superfund process, including during operation and maintenance, but we will not award a TAG before the start of your site's response action if the site is proposed for listing on the NPL.
(b) Based on the availability of funds, EPA may delay awards of grants to qualified applicants.
§ 35.4170   What kinds of reporting does EPA require?
There are several types of reports you need to complete at various points during the life of your group's grant; the number varies based on whether you receive an advance payment:
§ 35.4175   What other reporting and record keeping requirements are there?
In addition to the report requirements § 35.4170 describes, EPA requires your group to:
(a) Comply with any reporting requirements in the terms and conditions of the “grant agreement”;
(b) Keep complete financial records accurately showing how you used the Federal funds and the match, whether it is in the form of cash or in-kind assistance; and
(c) Comply with any reporting and record keeping requirements in 2 CFR parts 200 and 1500.
§ 35.4180   Must my group keep financial records after we finish our TAG?
(a) You must keep TAG financial records for ten years from the date of the final Financial Status Report, or until any audit, litigation, cost recovery, and/or disputes initiated before the end of the ten-year retention period are settled, whichever, is longer.
(b) At the ten-year mark, you may dispose of your TAG financial records if you first get written approval from EPA.
(c) If you prefer, you may submit the financial records to EPA for safekeeping when you give us the final Financial Status Report.
§ 35.4185   What does my group do with reports our technical advisor prepares for us?
You must send to EPA a copy of each final written product your advisor prepares for you as part of your TAG. We will send them to the local Superfund site information repository(ies) where all site-related documents are available to the public.
§ 35.4190   How does my group identify a qualified technical advisor?
(a) Your group must select a technical advisor who possesses the following credentials:
(1) Demonstrated knowledge of hazardous or toxic waste issues, relocation issues, redevelopment issues or public health issues as those issues relate to hazardous substance/toxic waste issues, as appropriate;
(2) Academic training in a relevant discipline (for example, biochemistry, toxicology, public health, environmental sciences, engineering, environmental law and planning); and
(3) Ability to translate technical information into terms your community can understand.
(b) Your technical advisor for public health issues must have received his or her public health or related training at accredited schools of medicine, public health or accredited academic institutions of other allied disciplines (for example, toxicology).
(c) Your group should select a technical advisor who has experience working on hazardous or toxic waste problems, relocation, redevelopment or public health issues, and communicating those problems and issues to the public.
§ 35.4195   Are there certain people my group cannot select to be our technical advisor, grant administrator, or other contractor under the grant?
Your group may not hire the following:
(a) The person(s) who wrote the specifications for the “contract” and/or who helped screen or select the contractor;
(b) In the case of a technical advisor, a person or entity doing work for the Federal or State government or any other entity at the same NPL site for which your group is seeking a technical advisor; and
(c) Any person who is on the List of Parties Excluded from Federal Procurement or NonProcurement Programs.
§ 35.4200   What restrictions apply to contractors my group procures for our TAG?
When procuring contractors your group:
(a) Cannot award cost-plus-percentage-of-cost contracts; and
(b) Must award only to responsible contractors that possess the ability to perform successfully under the terms and conditions of a proposed contract.
§ 35.4205   How does my group procure a technical advisor or any other contractor?
When procuring contractors your group must also:
(a) Provide opportunity for all qualified contractors to compete for your work (see § 35.4210);
(b) Keep written records of the reasons for all your contracting decisions;
(c) Make sure that all costs are reasonable in a proposed contract;
(d) Inform EPA of any proposed contract over $1,000.00;
(e) Provide EPA the opportunity to review a contract before your group awards or amends it;
(f) Perform a “cost analysis” to evaluate each element of a contractor's cost to determine if it is reasonable, allocable and allowable for all contracts over $25,000; and
§ 35.4210   Must my group solicit and document bids for our procurements?
(a) The steps needed to be taken to procure goods and/or services depends on the amount of the proposed procurement:
(b) Your group must not divide any procurements into smaller parts to get under any of the dollar limits in paragraph (a) of this section.
§ 35.4215   What if my group can't find an adequate number of potential sources for a technical advisor or other contractor?
In situations where only one adequate bidder can be found, your group may request written authority from the EPA award official to contract with the sole bidder.
§ 35.4220   How does my group ensure a prospective contractor does not have a conflict of interest?
Your group must require any prospective contractor on any contract to provide, with its bid or proposal:
(a) Information on its financial and business relationship with all PRPs at the site, with PRP parent companies, subsidiaries, affiliates, subcontractors, contractors, and current clients or attorneys and agents. This disclosure requirement includes past and anticipated financial and business relationships, and services provided to or on behalf of such parties in connection with any proposed or pending litigation;
(b) Certification that, to the best of its knowledge and belief, it has disclosed such information or no such information exists; and
(c) A statement that it will disclose to you immediately any such information discovered after submission of its bid or after award.
§ 35.4225   What if my group decides a prospective contractor has a conflict of interest?
If, after evaluating the information in § 35.4220, your group decides a prospective contractor has a significant conflict of interest that cannot be avoided or otherwise resolved, you must exclude him or her from consideration.
§ 35.4230   What are my group's contractual responsibilities once we procure a contractor?
(a) Is responsible for resolving all contractual and administrative issues arising out of contracts you enter into under a TAG; you must establish a procedure for resolving such issues with your contractor which complies with the provisions of 2 CFR 200.318 (k).These provisions say your group, not EPA, is responsible for settling all issues related to decisions you make in procuring advisors or other contractors with TAG funds; and
(b) Must ensure your contractor(s) perform(s) in accordance with the terms and conditions of the contract.
§ 35.4235   Are there specific provisions my group's contract(s) must contain?
Your group must include the following provisions in each of its contracts:
(a) Statement of work;
(b) Schedule for performance;
(c) Due dates for deliverables;
(d) Total cost of the contract;
(e) Payment provisions;
(f) The following clauses from 2 CFR part 200 Appendix II—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards, which are available at http://www.ecfr.gov .):
(g) The following clauses from 2 CFR part 200:
(1) Remedies for breaches of contract (2 CFR part 200 Appendix II—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards)
(2) Termination by the recipient (2 CFR part 200 Appendix II—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards); and
(3) Access to records (2 CFR 200.337); and
(h) Provisions that require your contractor(s) to keep the following detailed records as § 35.4180 requires for ten years after the end of the contract:
(1) Acquisitions;
(2) Work progress reports;
(3) Expenditures; and
(4) Commitments indicating their relationship to established costs and schedules.
§ 35.4240   What provisions must my group's TAG contractor comply with if it subcontracts?
A TAG contractor must comply with the following provisions when awarding subcontracts:
(a) Section 35.4205 (b) pertaining to documentation;
(b) Section 35.4205 (c) and (f) pertaining to cost;
(c) Section 35.4195 (c) pertaining to suspension and debarment;
(d) Section 35.4200 (b) pertaining to responsible contractors;
(e) [Reserved]
(f) Section 35.4200 (a) pertaining to unallowable contracts;
(g) Section 35.4235 pertaining to contract provisions; and
(h) Cost principles in 48 CFR part 31, the Federal Acquisition Regulation, if the contractor and subcontractors are profit-making organizations.
§ 35.4245   How does my group resolve a disagreement with EPA regarding our TAG?
The regulations at 2 CFR part 1500 Subpart E will govern disputes except that, before you may obtain judicial review of the dispute, you must have sought reconsideration of the Dispute Decision Official's Appeal decision under 2 CFR 1500.17.
§ 35.4250   Under what circumstances would EPA terminate my group's TAG?
(a) EPA may terminate your grant if your group materially fails to comply with the terms and conditions of the TAG and the requirements of this subpart.
(b) EPA may also terminate your grant with your group's consent in which case you and EPA must agree upon the termination conditions, including the effective date as 2 CFR 200.340 describes.
§ 35.4255   Can my group terminate our TAG?
Yes, your group may terminate your TAG by sending EPA written notification explaining the reasons for the termination and the effective date.
§ 35.4260   What other steps might EPA take if my group fails to comply with the terms and conditions of our award?
EPA may take one or more of the following actions, under 2 CFR 200.339, depending on the circumstances:
(a) Temporarily withhold advance payments until you correct the deficiency;
(b) Not allow your group to receive reimbursement for all or part of the activity or action not in compliance;
(c) Wholly or partly “suspend” your group's award;
(d) Withhold further awards (meaning, funding) for the project or program;
(e) Take enforcement action;
(f) Place special conditions in your grant agreement; and
(g) Take other remedies that may be legally available.
§ 35.4265   How does my group close out our TAG?
(a) Within 90 calendar days after the end of the approved project period of the TAG, your group must submit all financial, performance and other reports as required by § 35.4180. Upon request from your group, EPA may approve an extension of this time period.
(b) Unless EPA authorizes an extension, your group must pay all your bills related to the TAG by no later than 90 calendar days after the end of the funding period.
(c) Your group must promptly return any unused cash that EPA advanced or paid; OMB Circular A-129, Policies for Federal Credit Programs and Non-Tax Receivables, governs unreturned amounts that become delinquent debts.
§ 35.4270   Definitions.
The following definitions apply to this subpart:
Advance payment means a payment made to a recipient before “outlays” are made by the recipient.
Affected means subject to an actual or potential health, economic or environmental threat. Examples of affected parties include people:
(1) Who live in areas near NPL facilities, whose health may be endangered by releases of hazardous substances at the facility; or
(2) Whose economic interests are threatened or harmed.
Affiliated means a relationship between persons or groups where one group, directly or indirectly, controls or has the power to control the other, or, a third group controls or has the power to control both. Factors indicating control include, but are not limited to:
(1) Interlocking management or ownership (e.g., centralized decisionmaking and control);
(2) Shared facilities and equipment; and
(3) Common use of employees.
Allocable cost means a cost which is attributable to a particular cost objective, such as a grant, project, service, or other activity, in accordance with the relative benefits received. A cost is allocable to a Government award if it is treated consistently with other costs incurred for the same purpose in like circumstances and if it:
(1) Is incurred specifically for the award;
(2) Benefits both the award and other work and can be distributed in reasonable proportion to the benefits received; or
(3) Is necessary to the overall operation of the organization, although a direct relationship to any particular cost objective cannot be shown.
Allowable cost means those project costs that are: eligible, reasonable, allocable to the project, and necessary to the operation of the organization or the performance of the award as provided in the appropriate Federal cost principles, in most cases 2 CFR part 200 Subpart E—Cost Principles, and approved by EPA in the assistance agreement.
Applicant means any group of people that files an application for a TAG.
Application means a completed formal written request for a TAG that you submit to a State or the EPA on EPA form SF-424, Application for Federal Assistance (Non-construction Programs).
Award document or grant agreement is the legal document that transfers money or anything of value to your group to accomplish the purpose of the TAG project. It specifies funding and project periods, EPA's and your group's budget share of “eligible costs,” a description of the work to be accomplished, and any additional terms and conditions that may apply to the grant.
Award Official means the EPA official who has the authority to sign grant agreements.
Budget means the financial plan for spending all Federal funds and your group's matching share funds (including in-kind contributions) for a TAG project that your group proposes and EPA approves.
Cash contribution means actual non-Federal dollars, or Federal dollars if expressly authorized by Federal statute, that your group spends for goods, services, or personal property (such as office supplies or professional services) used to satisfy the matching funds requirement.
Contract means a written agreement between your group and another party (other than a public agency) for services or supplies necessary to complete the TAG project. Contracts include contracts and subcontracts for personal and professional services or supplies necessary to complete the TAG project.
Contractor means any party (for example, a technical advisor) to whom your group awards a contract.
Cost analysis is the evaluation of each element of cost to determine whether it is reasonable, allocable, and allowable.
Eligible cost is a cost permitted by statute, program guidance or regulations.
EPA means the Environmental Protection Agency.
Explanation of Significant Differences (ESD) means the document issued by the agency leading a cleanup that describes to the public significant changes made to a Record of Decision after the ROD has been signed. The ESD must also summarize the information that led to the changes and affirm that the revised remedy complies with the “National Contingency Plan” (NCP) and the statutory requirements of CERCLA.
Federal facility means a facility that is owned or operated by a department, agency, or instrumentality of the United States.
Funding period (previously called a “budget period”) means the length of time specified in a grant agreement during which your group may spend Federal funds. A TAG project period may be comprised of several funding periods.
Grant agreement or award document is the legal document that transfers money or anything of value to your group to accomplish the purpose of the TAG project. It specifies funding and project periods, EPA's and your group's budget share of eligible costs, a description of the work to be accomplished, and any additional terms and conditions that may apply to the grant.
In-kind contribution means the value of a non-cash contribution used to meet your group's matching funds requirement in accordance with 40 CFR 30.23. An in-kind contribution may consist of charges for equipment or the value of goods and services necessary to the EPA-funded project.
Letter of intent (LOI) means a letter addressed to your EPA regional office which clearly states your group's intention to apply for a TAG. The letter tells EPA the name of your group, the Superfund site(s) for which your group intends to submit an application, and the name of a contact person in the group including a mailing address and telephone number.
Matching funds means the portion of allowable project cost contributed toward completing the TAG project using non-Federal funds or Federal funds if expressly authorized by Federal statutes. The match may include in-kind as well as cash contributions.
National Contingency Plan (NCP) means the federal government's blueprint for responding to both oil spills and hazardous substance releases. It lays out the country's national response capability and promotes overall coordination among the hierarchy of responders and contingency plans.
National Priorities List (NPL) means the Federal list of priority hazardous substance sites, nationwide. Sites on the NPL are eligible for long-term cleanup actions financed through the Superfund program.
Operable unit means a discrete action defined by EPA that comprises an incremental step toward completing site cleanup.
Operation and maintenance means the steps taken after site actions are complete to make certain that all actions are effective and working properly.
Outlay means a charge made to the project or program that is an allowable cost in terms of costs incurred or in-kind contributions used.
Potentially responsible party (PRP) means any individual(s) or company(ies) (such as owners, operators, transporters or generators) potentially responsible under sections 106 or 107 of CERCLA (42 U.S.C. 9606 or 42 U.S.C. 9607) for the contamination problems at a Superfund site.
Project manager means the person legally authorized to obligate your group to the terms and conditions of EPA's regulations and the grant agreement, and designated by your group to serve as its principal contact with EPA.
Project period means the period established in the TAG award document during which TAG money may be used. The project period may be comprised of more than one funding period.
Reasonable cost means a cost that, in its nature or amount, does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the costs.
Recipient means any group that has been awarded a TAG.
Record of decision (ROD) means a public document that explains the cleanup method that will be used at a Superfund site; it is based on technical data gathered and analyses performed during the remedial investigation and feasibility study, as well as public comments and community concerns.
Remedial investigation/feasibility study (RI/FS) means the phase during which EPA conducts risk assessments and numerous studies into the nature and extent of the contamination on site, and analyzes alternative methods for cleaning up a site.
Response action means all activities undertaken by EPA, other Federal agencies, States, or PRPs to address the problems created by hazardous substances at an NPL site.
Start of response action means the point in time when funding is set-aside by either EPA, other Federal agencies, States, or PRPs to begin response activities at a site.
Suspend means an action by EPA that temporarily withdraws Federal sponsorship under an award, pending corrective action by the recipient or pending a decision to terminate the award by the Federal awarding agency. Suspension of an award is a separate action from suspension under Federal agency regulations implementing Executive Orders 12549 (3 CFR, 1986 Comp., p. 189) and 12689 (3 CFR, 1989 Comp., p. 235), Debarment and Suspension.
§ 35.4275   Where can my group get the documents this subpart references (for example Whitehouse OMB circulars, eCFR and tag Web site, EPA HQ/Regional offices, grant forms)?
EPA Headquarters and the regional offices that follow have the documents this subpart references available if you need them:
(a) TAG Coordinator or Grants Office, U.S. EPA Region I, 5 Post Office Square—Suite 100, Boston, MA 02109-3912
(b) TAG Coordinator or Grants Office, U.S. EPA Region II, 290 Broadway, New York, NY 10007-1866.
(c) TAG Coordinator or Grants Office, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19106.
(d) TAG Coordinator or Grants Office, U.S. EPA Region IV, Atlanta Federal Center, 61 Forsyth Street, Atlanta, GA 30303.
(e) TAG Coordinator or Grants Office, U.S. EPA Region V, Metcalfe Federal Building, 77 W. Jackson Blvd., Chicago, IL 60604.
(f) TAG Coordinator or Grants Office, U.S. EPA Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270-2102.
(g) TAG Coordinator or Grants Office, U.S. EPA Region 7, 11201 Renner Boulevard, Lenexa, Kansas 66219.
(h) TAG Coordinator or Grants Office, U.S. EPA Region VIII, 999 18th Street, Suite #500, Denver, CO 80202-2466.
(i) TAG Coordinator or Grants Office, U.S. EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105.
(j) TAG Coordinator or Grants Office, U.S. EPA Region X, 1200 6th Avenue, Seattle, WA 98101.
(k) National TAG Coordinator, U.S. EPA Mail Code: 5204-G, Ariel Rios Building, 1200 Pennsylvania Avenue, NW, Washington, DC 20460.
§ 35.6000   Authority.
This subpart is issued under section 104(a) through (j) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (CERCLA)(42 U.S.C. 9601 et seq. ).
§ 35.6005   Purpose and scope.
(a) This subpart codifies recipient requirements for administering Cooperative Agreements awarded pursuant to section 104(d)(1) of CERCLA. This subpart also codifies requirements for administering Superfund State Contracts (SSCs) for non-State-lead remedial responses undertaken pursuant to section 104 of CERCLA.
(b) 2 CFR part 200, “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards to Non-Federal Entities,” establishes consistency and uniformity among Federal agencies in the administration of grants and Cooperative Agreements to non-federal entities. For CERCLA-funded Cooperative Agreements, this subpart supplements the requirements contained in 2 CFR parts 200 and 1500 for States, political subdivisions thereof, and Indian Tribes. This subpart references those sections of 2 CFR parts 200 and 1500 that are applicable to CERCLA-funded Cooperative Agreements.
(c) Superfund monies for remedial actions cannot be used by recipients for Federal facility cleanup activities. When a cleanup is undertaken by another Federal entity, the State, political subdivision or Indian Tribe can pursue funding for its involvement in response activities from the appropriate Federal entity.
§ 35.6010   Indian Tribe and intertribal consortium eligibility.
(a) Indian Tribes are eligible to receive Superfund Cooperative Agreements only when they are federally recognized, and when they meet the criteria set forth in 40 CFR 300.515(b) of the National Oil and Hazardous Substances Pollution Contingency Plan (the National Contingency Plan or NCP), except that Indian Tribes shall not be required to demonstrate jurisdiction under 40 CFR 300.515(b)(3) of the NCP to be eligible for Core Program Cooperative Agreements, and those support agency Cooperative Agreements for which jurisdiction is not needed for the Tribe to carry out the support agency activities of the work plan.
(b) Although section 126 of CERCLA provides that the governing body of an Indian Tribe shall be treated substantially the same as a State, the subpart O definition of “State” does not include Indian Tribes because they do not need to comply with all the statutory requirements addressed in subpart O that apply to States.
(c) Intertribal consortium: An intertribal consortium is eligible to receive a Cooperative Agreement from EPA only if the intertribal consortium demonstrates that all members of the consortium meet the eligibility requirements for the Cooperative Agreement, and all members authorize the consortium to apply for and receive assistance.
§ 35.6015   Definitions.
(a) As used in this subpart, the following words and terms shall have the following meanings:
Activity. A set of CERCLA-funded tasks that makes up a segment of the sequence of events undertaken in determining, planning, and conducting a response to a release or potential release of a hazardous substance. These include Core Program, pre-remedial ( i.e. , preliminary assessments and site inspections), support agency, remedial investigation/feasibility studies, remedial design, remedial action, removal, and enforcement activities.
Allowable costs. Those project costs that are: Eligible, reasonable, necessary, and allocable to the project; permitted by the appropriate Federal cost principles; and approved by EPA in the Cooperative Agreement and/or Superfund State Contract.
Architectural or engineering (A/E) services. Consultation, investigations, reports, or services for design-type projects within the scope of the practice of architecture or professional engineering as defined by the laws of the State or territory in which the recipient is located.
Award official. The EPA official with the authority to execute Cooperative Agreements and Superfund State Contracts and to take other actions authorized by EPA Orders.
Budget period. The length of time EPA specifies in a Cooperative Agreement during which the recipient may expend or obligate Federal funds.
CERCLA. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9601—9657).
Change order. A written order issued by a recipient, or its designated agent, to its contractor authorizing an addition to, deletion from, or revision of, a contract, usually initiated at the contractor's request.
Claim. A demand or written assertion by a contractor seeking, as a matter of right, changes in contract duration, costs, or other provisions, which originally have been rejected by the recipient.
Closeout. The final EPA or recipient actions taken to assure satisfactory completion of project work and to fulfill administrative requirements, including financial settlement, submission of acceptable required final reports, and resolution of any outstanding issues under the Cooperative Agreement and/or Superfund State Contract.
Community Relations Plan (CRP). A management and planning tool outlining the specific community relations activities to be undertaken during the course of a response. It is designed to provide for two-way communication between the affected community and the agencies responsible for conducting a response action, and to assure public input into the decision-making process related to the affected communities.
Construction. Erection, building, alteration, repair, remodeling, improvement, or extension of buildings, structures or other property.
Contract. A written agreement between an EPA recipient and another party (other than another public agency) or between the recipient's contractor and the contractor's first tier subcontractor.
Contractor. Any party to whom a recipient awards a contract.
Cooperative Agreement. A legal instrument EPA uses to transfer money, property, services, or anything of value to a recipient to accomplish a public purpose in which substantial EPA involvement is anticipated during the performance of the project.
Core Program Cooperative Agreement. A Cooperative Agreement that provides funds to a State or Indian Tribe to conduct CERCLA implementation activities that are not assignable to specific sites but are intended to develop and maintain a State's or Indian Tribe's ability to participate in the CERCLA response program.
Cost analysis. The review and evaluation of each element of contract cost to determine reasonableness, allocability, and allowability.
Cost share. The portion of allowable project costs that a recipient contributes toward completing its project (i.e., non-Federal share, matching share).
Equipment. Tangible, nonexpendable, personal property having a useful life of more than one year and an acquisition cost of $5,000 or more per unit.
Fair market value. The amount at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts. Fair market value is the price in cash, or its equivalent, for which the property would have been sold on the open market.
Health and safety plan. A plan that specifies the procedures that are sufficient to protect on-site personnel and surrounding communities from the physical, chemical, and/or biological hazards of the site. The health and safety plan outlines:
(i) Site hazards;
(ii) Work areas and site control procedures;
(iii) Air surveillance procedures;
(iv) Levels of protection;
(v) Decontamination and site emergency plans;
(vi) Arrangements for weather-related problems; and
(vii) Responsibilities for implementing the health and safety plan.
In-kind contribution. The value of a non-cash contribution (generally from third parties) to meet a recipient's cost sharing requirements. An in-kind contribution may consist of charges for real property and equipment or the value of goods and services directly benefiting the CERCLA-funded project.
Indian Tribe. As defined by section 101(36) of CERCLA, any Indian Tribe, band, nation, or other organized group or community, including any Alaska Native village but not including any Alaska Native regional or village corporation, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. For the purposes of this subpart, the term, “Indian Tribe,” includes an intertribal consortium consisting of two or more federally recognized Tribes.
Intergovernmental Agreement. Any written agreement between units of government under which one public agency performs duties for or in concert with another public agency using EPA assistance. This includes substate and interagency agreements.
Intertribal consortium. A partnership between two or more federally recognized Indian Tribes that is authorized by the governing bodies of those Indian Tribes to apply for and receive assistance agreements. An intertribal consortium must have adequate documentation of the existence of the partnership, and the authorization to apply for and receive assistance.
Lead agency. The Federal agency, State agency, political subdivision, or Indian Tribe that has primary responsibility for planning and implementing a response action under CERCLA.
National Priorities List (NPL). The list, compiled by EPA pursuant to CERCLA section 105, of uncontrolled hazardous substance releases in the United States that are priorities for long-term remedial evaluation and response. The NPL is published at Appendix B to 40 CFR Part 300.
Operable unit. A discrete action, as described in the Cooperative Agreement or Superfund State Contract, that comprises an incremental step toward comprehensively addressing site problems. The cleanup of a site can be divided into a number of operable units, depending on the complexity of the problems associated with the site. Operable units may address geographical portions of a site, specific site problems, or initial phases of an action, or may consist of any set of actions performed over time or any actions that are concurrent but located in different parts of a site.
Operation and maintenance. Measures required to maintain the effectiveness of response actions.
Personal property. Property other than real property. It includes both supplies and equipment.
Political subdivision. The unit of government that the State determines to have met the State's legislative definition of a political subdivision.
Potentially Responsible Party (PRP). Any individual(s) or company(ies) identified as potentially liable under CERCLA for cleanup or payment for costs of cleanup of Hazardous Substance sites. PRPs may include individual(s), or company(ies) identified as having owned, operated, or in some other manner contributed wastes to Hazardous Substance sites.
Price analysis. The process of evaluating a prospective price without regard to the contractor's separate cost elements and proposed profit. Price analysis determines the reasonableness of the proposed contract price based on adequate price competition, previous experience with similar work, established catalog or market price, law, or regulation.
Profit. The net proceeds obtained by deducting all allowable costs (direct and indirect) from the price. (Because this definition of profit is based on applicable Federal cost principles, it may vary from many firms' definition of profit, and may correspond to those firms' definition of “fee.”)
Project. The activities or tasks EPA identifies in the Cooperative Agreement and/or Superfund State Contract.
Project manager. The recipient official designated in the Cooperative Agreement or Superfund State Contract as the program contact with EPA.
Project officer. The EPA official designated in the Cooperative Agreement as EPA's program contact with the recipient. Project officers are responsible for monitoring the project.
Project period. The length of time EPA specifies in the Cooperative Agreement and/or Superfund State Contract for completion of all project work. It may be composed of more than one budget period.
Quality Assurance Project Plan. A written document, associated with remedial site sampling, which presents in specific terms the organization (where applicable), objectives, functional activities, and specific quality assurance and quality control activities and procedures designed to achieve the data quality objectives of a specific project(s) or continuing operation(s).
Real property. Land, including land improvements, structures, and appurtenances thereto, excluding movable machinery and equipment.
Recipient. Any State, political subdivision thereof, or Indian Tribe which has been awarded and has accepted an EPA Cooperative Agreement.
Services. A recipient's in-kind or a contractor's labor, time, or efforts which do not involve the delivery of a specific end item, other than documents (e.g., reports, design drawings, specifications). This term does not include employment agreements or collective bargaining agreements.
Simplified acquisition threshold. The dollar amount specified in the Office of Federal Procurement Policy Act, 41 U.S.C. 403. The threshold is currently set at $100,000.
Small business. A business as defined in section 3 of the Small Business Act, as amended (15 U.S.C. 632).
State. The several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Commonwealth of Northern Marianas, and any territory or possession over which the United States has jurisdiction.
Statement of Work (SOW). The portion of the Cooperative Agreement application and/or Superfund State Contract that describes the purpose and scope of activities and tasks to be carried out as a part of the proposed project.
Subcontractor. Any first tier party that has a contract with the recipient's prime contractor.
Superfund State Contract (SSC). A joint, legally binding agreement between EPA and another party(ies) to obtain the necessary assurances before an EPA-lead remedial action or any political subdivision-lead activities can begin at a site, and to ensure State or Indian Tribe involvement as required under CERCLA section 121(f).
Supplies. All tangible personal property other than equipment as defined in this section.
Support agency. The agency that furnishes necessary data to the lead agency, reviews response data and documents, and provides other assistance to the lead agency.
Task. An element of a Superfund response activity identified in the Statement of Work of a Superfund Cooperative Agreement or a Superfund State Contract.
Title. The valid claim to property that denotes ownership and the rights of ownership, including the rights of possession, control, and disposal of property.
Unit acquisition cost. The net invoice unit price of the property including the cost of modifications, attachments, accessories, or auxiliary apparatus necessary to make the property usable for the purpose for which it was acquired. Other charges, such as the cost of installation, transportation, taxes, duty, or protective in-transit insurance, shall be included or excluded from the unit acquisition cost in accordance with the recipient's regular accounting practices.
Value engineering. A systematic and creative analysis of each contract term or task to ensure that its essential function is provided at the overall lowest cost.
(b) Those terms not defined in this section shall have the meanings set forth in section 101 of CERCLA, 2 CFR part 200, and 40 CFR part 300 (the National Contingency Plan).
§ 35.6020   Requirements for both applicants and recipients.
Applicants and recipients must comply with the applicable requirements of 2 CFR part 1532, “Nonprocurement Debarment and Suspension and of 2 CFR part 1536, “Requirements for Drug-Free Workplace (Financial Assistance).”
§ 35.6025   Exceptions from this subpart.
On a case-by-case basis, EPA will consider requests for official exceptions from the non-statutory provisions of this subpart. Refer to the requirements regarding exceptions described in 2 CFR 1500.4.
§ 35.6050   Eligibility for pre-remedial Cooperative Agreements.
States, political subdivisions, and Indian Tribes may apply for pre-remedial response Cooperative Agreements.
§ 35.6055   State-lead pre-remedial Cooperative Agreements.
(a) To receive a State-lead pre-remedial Cooperative Agreement, the applicant must submit an “Application for Federal Assistance” (SF-424) for non-construction programs. Applications for additional funding need include only the revised pages. The application must include the following:
(1) Budget sheets (SF-424A).
(2) A Project narrative statement, including the following:
(i) A list of sites at which the applicant proposes to undertake pre-remedial tasks. If the recipient proposes to revise the list, the recipient may not incur costs on a new site until the EPA project officer has approved the site;
(ii) A Statement of Work (SOW) which must include a detailed description, by task, of activities to be conducted, the projected costs associated with each task, the number of products to be completed, and a quarterly schedule indicating when these products will be submitted to EPA; and
(iii) A schedule of deliverables.
(3) Other applicable forms and information authorized by 2 CFR part 200 Subpart C—Pre-Federal Award Requirements and Contents of Federal Awards.
(b) Pre-remedial Cooperative Agreement requirements. The recipient must comply with all terms and conditions in the Cooperative Agreement, and with the following requirements:
(1) Health and safety plan. (i) Before beginning field work, the recipient must have a health and safety plan in place providing for the protection of on-site personnel and area residents. This plan need not be submitted to EPA, but must be made available to EPA upon request.
(ii) The recipient's health and safety plan must comply with Occupational Safety and Health Administration (OSHA) 29 CFR 1910.120, entitled “Hazardous Waste Operations and Emergency Response,” unless the recipient is an Indian Tribe exempt from OSHA requirements.
(2) Quality assurance. (i) The recipient must comply with the quality assurance requirements described in 2 CFR 1500.12.
(ii) The recipient must have an EPA-approved non-site-specific quality assurance plan in place before beginning field work. The recipient must submit the plan to EPA in adequate time (generally 45 days) for approval to be granted before beginning field work.
(iii) The quality assurance plan must comply with the requirements regarding split sampling described in section 104(e)(4)(B) of CERCLA, as amended.
§ 35.6060   Political subdivision-lead pre-remedial Cooperative Agreements.
(a) If the Award Official determines that a political subdivision's lead involvement in pre-remedial activities would be more efficient, economical and appropriate than that of a State, based on the number of sites to be addressed and the political subdivision's history of program involvement, a pre-remedial Cooperative Agreement may be awarded under this section.
(b) The political subdivision must comply with all of the requirements described in § 35.6055.
§ 35.6070   Indian Tribe-lead pre-remedial Cooperative Agreements.
The Indian Tribe must comply with all of the requirements described in § 35.6055, except for the intergovernmental review requirements included in the “Application for Federal Assistance” (SF-424).
§ 35.6100   Eligibility for remedial Cooperative Agreements.
States, Indian Tribes, and political subdivisions may apply for remedial response Cooperative Agreements.
§ 35.6105   State-lead remedial Cooperative Agreements.
To receive a State-lead remedial Cooperative Agreement, the applicant must submit the following items to EPA:
(a) Application form, as described in § 35.6055(a). Applications for additional funding need to include only the revised pages. The application must include the following:
(1) Budget sheets (SF-424A) displaying costs by site, activity and operable unit, as applicable.
(2) A Project narrative statement, including the following:
(i) A site description, including a discussion of the location of each site, the physical characteristics of each site (site geology and proximity to drinking water supplies), the nature of the release (contaminant type and affected media), past response actions at each site, and response actions still required at each site;
(ii) A site-specific Statement of Work (SOW), including estimated costs per task, and a standard task to ensure that a sign is posted at the site providing the appropriate contacts for obtaining information on activities being conducted at the site, and for reporting suspected criminal activities;
(iii) A statement designating a lead site project manager among appropriate State offices. This statement must demonstrate that the lead State agency has conducted coordinated planning of response activities with other State agencies. The statement must identify the name and position of those individuals who will be responsible for coordinating the State offices;
(iv) A site-specific Community Relations Plan or an assurance that field work will not begin until one is in place. The Regional community relations coordinator must approve the Community Relations Plan before the recipient begins field work. The recipient must comply with the community relations requirements described in EPA policy and guidance, and in the National Contingency Plan;
(v) A site-specific health and safety plan, or an assurance that the applicant will have a final plan before starting field work. Unless specifically waived by the award official, the applicant must have a site-specific health and safety plan in place providing for the protection of on-site personnel and area residents. The site-specific health and safety plan must comply with Occupational Safety and Health Administration (OSHA) 29 CFR 1910.120, entitled, “Hazardous Waste Operations and Emergency Response,” unless the recipient is an Indian Tribe exempt from OSHA requirements;
(vi) Quality assurance —(A) General. If the project involves environmentally related measurements or data generation, the recipient must comply with the requirements regarding quality assurance described in 2 CFR 1500.12.
(B) Quality assurance plan. The applicant must have a separate quality assurance project plan and/or sampling plan for each site to be covered by the Cooperative Agreement. The applicant must submit the quality assurance project plan and the sampling plan, which incorporates results of any site investigation performed at that site, to EPA with its Cooperative Agreement application. However, at the option of the EPA award official with program concurrence, the applicant may submit with its application a schedule for developing the detailed site-specific quality assurance plan (generally 45 days before beginning field work). Field work may not begin until EPA approves the site-specific quality assurance plan.
(C) Split sampling. The quality assurance plan must comply with the requirements regarding split sampling described in section 104(e)(4)(B) of CERCLA, as amended.
(vii) A schedule of deliverables to be prepared during response activities.
(3) Other applicable forms and information authorized by 2 CFR part 200 Subpart C—Pre-Federal Award Requirements and Contents of Federal Awards.
(b) CERCLA Assurances. Before a Cooperative Agreement for remedial action can be awarded, the State must provide EPA with the following written assurances:
(1) Operation and maintenance. The State must provide an assurance that it will assume responsibility for all future operation and maintenance of CERCLA-funded remedial actions for the expected life of each such action as required by CERCLA section 104(c) and addressed in 40 CFR 300.510(c)(1) of the NCP. In addition, even if a political subdivision is designated as being responsible for operation and maintenance, the State must guarantee that it will assume any or all operation and maintenance activities in the event of default by the political subdivision.
(2) Cost sharing. The State must provide assurances for cost sharing as follows:
(i) Ten percent. Where a facility, whether privately or publicly owned, was not operated by the State or political subdivision thereof, either directly or through a contractual relationship or otherwise, at the time of any disposal of hazardous substances at the facility, the State must provide 10 percent of the cost of the remedial action, if CERCLA-funded.
(ii) Fifty percent or more. Where a facility was operated by a State or political subdivision either directly or through a contractual relationship or otherwise, at the time of any disposal of hazardous substances at the facility, the State must provide 50 percent (or such greater share as EPA may determine appropriate, taking into account the degree of responsibility of the State or political subdivision for the release) of the cost of removal, remedial planning, and remedial action if the remedial action is CERCLA-funded.
(3) Twenty-year waste capacity. The State must assure EPA of the availability of hazardous waste treatment or disposal facilities within and/or outside the State that comply with subtitle C of the Solid Waste Disposal Act and that have adequate capacity for the destruction, treatment, or secure disposition of all hazardous wastes that are reasonably expected to be generated within the State during the 20-year period following the date of the response agreement. A remedial action cannot be funded unless this assurance is provided consistent with 40 CFR 300.510 of the NCP. EPA will determine whether the State's assurance is adequate.
(4) Off-site storage, treatment, or disposal. If off-site storage, destruction, treatment, or disposal is required, the State must assure the availability of a hazardous waste disposal facility that is in compliance with subtitle C of the Solid Waste Disposal Act and is acceptable to EPA. The lead agency of the State must provide the notification required at § 35.6120, if applicable.
(5) Real property acquisition. If EPA determines in the remedy selection process that an interest in real property must be acquired in order to conduct a response action, such acquisition may be funded under a Cooperative Agreement. EPA may acquire an interest in real estate for the purpose of conducting a remedial action only if the State provides assurance that it will accept transfer of such interest in accordance with 40 CFR 300.510(f) of the NCP. The State must provide this assurance even if it intends to transfer this interest to a third party, or to allow a political subdivision to accept transfer on behalf of the State. If the political subdivision is accepting the transferred interest in real property, the State must guarantee that it will accept transfer of such interest in the event of default by the political subdivision. If the State or political subdivision disposes of the transferred real property, it shall comply with the requirements for real property in 2 CFR 200.311. ( See § 35.6400 for additional information on real property acquisition requirements.)
§ 35.6110   Indian Tribe-lead remedial Cooperative Agreements.
(a) Application requirements. The Indian Tribe must comply with all of the requirements described in § 35.6105(a). Indian Tribes are not required to comply with the intergovernmental review requirements included in the “Application for Federal Assistance” (SF-424). Consistent with the NCP (40 CFR 300.510(e)(2)), this subpart does not address whether Indian Tribes are States for the purpose of CERCLA section 104(c)(9).
(b) Cooperative Agreement requirements. (1) The Indian Tribe must comply with all terms and conditions in the Cooperative Agreement.
(2) If it is designated the lead for remedial action, the Indian Tribe must provide the notification required at § 35.6120, substituting the term “Indian Tribe” for the term “State” in that section, and “out-of-an-Indian-Tribal-area-of-Indian-country” for “out-of-State”.
(3) Indian Tribes are not required to share in the cost of CERCLA-funded remedial actions.
§ 35.6115   Political subdivision-lead remedial Cooperative Agreements.
(a) General. If the State concurs, EPA may allow a political subdivision with the necessary capabilities and jurisdictional authority to conduct remedial response activities at a site. EPA will award the political subdivision a Cooperative Agreement to conduct remedial response and enter into a parallel Superfund State Contract with the State, if required ( See § 35.6800, when a Superfund State Contract is required). The political subdivision may also be a signatory to the Superfund State Contract. The political subdivision must submit to the State a copy of all reports provided to EPA.
(b) Political subdivision Cooperative Agreement requirements —(1) Application requirements. To receive a remedial Cooperative Agreement, the political subdivision must prepare an application which includes the documentation described in § 35.6105(a)(1) through (a)(3).
(2) Cooperative Agreement requirements. The political subdivision must comply with all terms and conditions in the Cooperative Agreement. If it is designated the lead for remedial action, the political subdivision must provide the notification required at § 35.6120, substituting the term “political subdivision” for the term “State” in that section.
§ 35.6120   Notification of the out-of-State or out-of-an-Indian-Tribal-area-of-Indian-country transfer of CERCLA waste.
(a) The recipient must provide written notification of off-site shipments of CERCLA waste from a site to an out-of-State or out-of-an-Indian-Tribal-area-of-Indian-country waste management facility to:
(1) The appropriate State environmental official for the State in which the waste management facility is located; and/or
(2) An appropriate official of an Indian Tribe in whose area of Indian country the waste management facility is located; and
(3) The EPA Award Official.
(b) The notification of off-site shipments does not apply when the total volume of all such shipments from the site does not exceed 10 cubic yards.
(c) The notification must be in writing and must provide the following information, where available:
(1) The name and location of the facility to which the CERCLA waste is to be shipped;
(2) The type and quantity of CERCLA waste to be shipped;
(3) The expected schedule for the shipments of the CERCLA waste; and
(4) The method of transportation of the CERCLA waste.
(d) The recipient must notify the State or Indian Tribal government in which the planned receiving facility is located of major changes in the shipment plan, such as a decision to ship the CERCLA waste to another facility within the same receiving State, or to a facility in another State.
(e) The recipient must provide relevant information on the off-site shipments, including the information in paragraph (c) of this section, as soon as possible after the award of the contract and, where practicable, before the CERCLA waste is actually shipped.
§ 35.6145   Eligibility for enforcement Cooperative Agreements.
Pursuant to CERCLA section 104(d), States, political subdivisions thereof, and Indian Tribes may apply for enforcement Cooperative Agreements. To be eligible for an enforcement Cooperative Agreement, the State, political subdivision or Indian Tribe must demonstrate that it has the authority, jurisdiction, and the necessary administrative capabilities to take an enforcement action(s) to compel PRP cleanup of the site, or recovery of the cleanup costs. To accomplish this, the State, political subdivision or Indian Tribe, respectively, must submit the following for EPA approval:
(a) A letter from the State Attorney General, or comparable local official (of a political subdivision) or comparable Indian Tribal official, certifying that it has the authority, jurisdiction, and administrative capabilities that provide a basis for pursuing enforcement actions against a PRP to secure the necessary response;
(b) A copy of the applicable State, local (political subdivision) or Indian Tribal statute(s) and a description of how it is implemented;
(c) Any other documentation required by EPA to demonstrate that the State, local (political subdivision) or Indian Tribal government has the statutory authority, jurisdiction, and administrative capabilities to perform the enforcement activity(ies) to be funded under the Cooperative Agreement.
§ 35.6150   Activities eligible for funding under enforcement Cooperative Agreements.
An enforcement Cooperative Agreement application from a State, political subdivision or Indian Tribe may request funding for the following enforcement activities:
(a) PRP searches;
(b) Issuance of notice letters and negotiation activities;
(c) Administrative and judicial enforcement actions taken under State or Indian Tribal law;
(d) Management assistance and oversight of PRPs during Federal enforcement response;
(e) Oversight of PRPs during a State, political subdivision or Indian Tribe enforcement response contingent on the applicant having taken all necessary action to compel PRPs to fund the oversight of cleanup activities negotiated under the recipient's enforcement authorities. If the State, political subdivision, Indian Tribe or EPA cannot obtain PRP commitment to fund such oversight activities, then these activities will be considered eligible for CERCLA funding under an enforcement Cooperative Agreement.
§ 35.6155   State, political subdivision or Indian Tribe-lead enforcement Cooperative Agreements.
(a) The State, political subdivision or Indian Tribe must comply with the requirements described in § 35.6105 (a)(1) through (a)(3), as appropriate.
(b) The CERCLA section 104 assurances described in § 35.6105(b) are not applicable for enforcement Cooperative Agreements.
(c) Before an enforcement Cooperative Agreement is awarded, the State, political subdivision or Indian Tribe must:
(1) Assure EPA that it will notify and consult with EPA promptly if the recipient determines that its laws or other restrictions prevent the recipient from acting consistently with CERCLA; and
(2) If the applicant is seeking funds for oversight of PRP cleanup, the applicant must:
(i) Demonstrate that the proposed Statement of Work or cleanup plan prepared by the PRP satisfies the recipient's enforcement goals for those instances in which the recipient is seeking funding for oversight of PRP cleanup activities negotiated under the recipient's own enforcement authorities; and
(ii) Demonstrate that the PRP has the capability to attain the goals set forth in the plan;
(iii) Demonstrate that it has taken all necessary action to compel PRPs to fund the oversight of cleanup activities negotiated under the recipient's enforcement authorities.
§ 35.6200   Eligibility for removal Cooperative Agreements.
When a planning period of more than six months is available, States, political subdivisions and Indian Tribes may apply for removal Cooperative Agreements.
§ 35.6205   Removal Cooperative Agreements.
(a) The State must comply with the requirements described in § 35.6105(a). To the extent practicable, the State must comply with the notification requirement at § 35.6120 when a removal action is necessary and involves out-of-State shipment of CERCLA wastes, and when, based on the site evaluation, EPA determines that a planning period of more than six months is available before the removal activities must begin.
(b) Pursuant to CERCLA section 104(c)(3), the State is not required to share in the cost of a CERCLA-funded removal action, unless the removal is conducted at a site that was publicly operated by a State or political subdivision at the time of disposal of hazardous substances and a CERCLA-funded remedial action is ultimately undertaken at the site. In this situation, the State must share at least 50 percent in the cost of all removal, remedial planning, and remedial action costs at the time of the remedial action as stated in § 35.6105(b)(2)(ii).
(c) If both the State and EPA agree, a political subdivision with the necessary capabilities and jurisdictional authority may assume the lead responsibility for all, or a portion, of the removal activity at a site. Political subdivisions must comply with the requirements described in § 35.6105(a). To the extent practicable, political subdivisions also must comply with the notification requirement at § 35.6120 when a removal action is necessary and involves the shipment of CERCLA wastes out of the State's jurisdiction, and when, based on the site evaluation, EPA determines that a planning period of more than six months is available before the removal activities must begin.
(d) The State must provide the cost share assurance discussed in paragraph (b) of this section on behalf of a political subdivision that is given the lead for a removal action.
(e) Indian Tribes must comply with the requirements described in § 35.6105(a). To the extent practicable, Indian Tribes also must comply with the notification requirement at § 35.6120 when a removal action is necessary and involves the shipment of CERCLA wastes out of the Indian Tribe's area of Indian country, and when, based on the site evaluation, EPA determines that a planning period of more than six months is available before the removal activities must begin.
(f) Indian Tribes are not required to share in the cost of a CERCLA-funded removal action.
§ 35.6215   Eligibility for Core Program Cooperative Agreements.
(a) States and Indian Tribes may apply for Core Program Cooperative Agreements in order to conduct CERCLA implementation activities that are not directly assignable to specific sites, but are intended to develop and maintain a State's or Indian Tribe's ability to participate in the CERCLA response program.
(b) Only the State or Indian Tribal government agency designated as the single point of contact with EPA for CERCLA implementation is eligible to receive a Core Program Cooperative Agreement.
(c) When it is more economical for a government entity other than the recipient (such as a political subdivision or State Attorney General) to implement tasks funded through a Core Program Cooperative Agreement, benefits to such entities must be provided for in an intergovernmental agreement.
§ 35.6220   General.
The recipient of a Core Program Cooperative Agreement must comply with the requirements regarding financial administration (§§ 35.6270 through 35.6290), property (§§ 35.6300 through 35.6450), procurement (§§ 35.6550 through 35.6610), reporting (§§ 35.6650 through 35.6670), records (§§ 35.6700 through 35.6710), and other administrative requirements under a Cooperative Agreement (§§ 35.6750 through 35.6790). Recipients may not incur site-specific costs. Where these sections entail site-specific requirements, the recipient is not required to comply on a site-specific basis.
§ 35.6225   Activities eligible for funding under Core Program Cooperative Agreements.
(a) To be eligible for funding under a Core Program Cooperative Agreement, activities must develop and maintain a recipient's abilities to implement CERCLA. Once the recipient has in place program functions described in paragraphs (a)(1) through (a)(4) of this section, EPA will evaluate the recipient's program needs to sustain interaction with EPA in CERCLA implementation as described in paragraph (a)(5) of this section. The amount of funding provided under the Core Program will be determined by EPA based on the availability of funds and the recipient's program needs in the areas described in paragraphs (a)(1) through (a)(4) of this section:
(1) Procedures for emergency response actions and longer-term remediation of environmental and health risks at hazardous waste sites (including but not limited to the development of generic health and safety plans, quality assurance project plans, and community relation plans);
(2) Provisions for satisfying all requirements and assurances (including the development of a fund or other financing mechanism(s) to pay for studies and remediation activities);
(3) Legal authorities and enforcement support associated with proper administration of the recipient's program and with efforts to compel potentially responsible parties to conduct or pay for studies and/or remediation (including but not limited to the development of statutory authorities; access to legal assistance in identifying applicable or relevant and appropriate requirements of other laws; and development and maintenance of the administrative, financial and recordkeeping systems necessary for cost recovery actions under CERCLA);
(4) Efforts necessary to hire and train staff to manage publicly-funded cleanups, oversee responsible party-lead cleanups, and provide clerical support; and
(5) Other activities deemed necessary by EPA to develop and maintain sustained EPA/recipient interaction in CERCLA implementation (including but not limited to general program management and supervision necessary for a recipient to implement CERCLA activities, and interagency coordination on all phases of CERCLA response).
(b) Continued funding of tasks in subsequent years will be based on an evaluation of demonstrated progress toward the goals in the existing Core Program Cooperative Agreement Statement of Work.
§ 35.6230   Application requirements.
To receive a Core Program Cooperative Agreement, the applicant must submit an application form (“Application for Federal Assistance,” SF-424, for non-construction programs) to EPA. Applications for additional funding need include only the revised pages. The application must include the following:
(a) A project narrative statement, including the following:
(1) A Statement of Work (SOW) which must include a detailed description of the CERCLA-funded activities and tasks to be conducted, the projected costs associated with each task, the number of products to be completed, and a schedule for implementation. Eligible activities under Core Program Cooperative Agreements are discussed in § 35.6225; and
(2) A background statement, describing the current abilities and authorities of the recipient's program for implementing CERCLA, the program's needs to sustain and increase recipient involvement in CERCLA implementation, and the impact of Core Program Cooperative Agreement funds on the recipient's involvement in site-specific CERCLA response.
(b) Budget sheets (SF-424A).
(c) Proposed project and budget periods for CERCLA-funded activities. The project and budget periods may be one or more years and may be extended incrementally, up to 12 months at a time, with EPA approval.
(d) Other applicable forms and information authorized by 2 CFR part 200 Subpart C—Pre-Federal Award Requirements and Contents of Federal Awards.
§ 35.6235   Cost sharing.
A State must provide at least ten percent of the direct and indirect costs of all activities covered by the Core Program Cooperative Agreement. Indian Tribes are not required to share in the cost of Core Program activities. The State must provide its cost share with non-Federal funds or with Federal funds, authorized by statute to be used for matching purposes. Funds used for matching purposes under any other Federal grant or Cooperative Agreement cannot be used for matching purposes under a Core Program Cooperative Agreement. The State may provide its share using in-kind contributions if such contributions are provided for in the Cooperative Agreement. The State may not use CERCLA State credits to offset any part of its required match for Core Program Cooperative Agreements. ( See § 35.6285 (c), (d), and (f) regarding credit, excess cash cost share contributions/over match, and advance match, respectively.)
§ 35.6240   Eligibility for support agency Cooperative Agreements.
States, political subdivisions, and Indian Tribes may apply for support agency Cooperative Agreements to ensure their meaningful and substantial involvement in response activities, as specified in sections 104 and 121(f)(1) of CERCLA and the NCP (40 CFR part 300).
§ 35.6245   Allowable activities.
Support agency activities are those activities conducted by the recipient to ensure its meaningful and substantial involvement. The activities described in section 121(f)(1) of CERCLA, as amended, and in subpart F of the NCP (40 CFR part 300), are eligible for funding under a support agency Cooperative Agreement. Participation in five-year reviews of the continuing protectiveness of a remedial action is also an eligible support agency activity.
§ 35.6250   Support agency Cooperative Agreement requirements.
(a) Application requirements. The applicant must comply with the requirements described in § 35.6105(a)(1) and (3), and other requirements as negotiated with EPA. (Indian Tribes are exempt from the requirement of Intergovernmental Review in 40 CFR part 29.) An applicant may submit a non-site-specific budget for support agency activities.
(b) Cooperative Agreement requirements. The recipient must comply with the requirements regarding financial administration (§§ 35.6270 through 35.6290), property (§§ 35.6300 through 35.6450), procurement (§§ 35.6550 through 35.6610), reporting (§§ 35.6650 through 35.6670), records (§§ 35.6700 through 35.6710), and other administrative requirements under a Cooperative Agreement (§§ 35.6750 through 35.6790).
§ 35.6260   Combining Cooperative Agreement sites and activities.
(a) EPA may award a Cooperative Agreement to a recipient for:
(1) A single activity, or multiple activities;
(2) A single activity at multiple sites; and
(3) Except as provided in paragraphs (b), (c), and (d) of this section, multiple activities at multiple sites.
(b) EPA will not award or amend a Cooperative Agreement to a political subdivision to conduct multiple activities at multiple sites. Before awarding or amending a Cooperative Agreement to permit multiple activities at multiple sites, EPA must determine that the State or Indian Tribe has adequate administrative, technical, and financial management and tracking capabilities. A State's or Indian Tribe's request for such a Cooperative Agreement will be considered only if EPA determines that consolidating these activities under one Cooperative Agreement would be in the Agency's best interests.
(c) EPA will not award a single Cooperative Agreement to conduct multiple remedial actions at multiple sites.
(d) EPA will require separate Cooperative Agreements for eligible removal actions that exceed the statutory monetary ceiling or whenever a consistency waiver is likely to be sought.
§ 35.6270   Standards for financial management systems.
(a) Accounting system standards —(1) General. The recipient's system must track expenses by site, activity, and, operable unit, as applicable, according to object class. The system must also provide control, accountability, and an assurance that funds, property, and other assets are used only for their authorized purposes. The recipient must allow an EPA review of the adequacy of the financial management system as described in 2 CFR 200.302.
(2) Allowable costs. The recipient's systems must comply with the appropriate allowable cost principles described in 2 CFR part 200 Subpart E—Cost Principles.
(3) Pre-remedial. The system need not track expenses by site. However, all pre-remedial costs must be documented under a single Superfund account number designated specifically for the pre-remedial activity.
(4) Core Program. Since all costs associated with Core Program Cooperative Agreements are non-site-specific, the systems need not track expenses by site. However, all Core Program costs must be documented under the Superfund account number(s) designated specifically for Core Program activity.
(5) Support Agency. All support agency agreements will be assigned a single Superfund activity code designated specifically for support agency activities. All support agency costs, however, must be documented site specifically in accordance with the terms and conditions specified in the Cooperative Agreement.
(6) Accounting system control procedures. Except as provided for in paragraph (a)(3) of this section, accounting system control procedures must ensure that accounting information is:
(i) Accurate, charging only costs attributable to the site, activity, and operable unit, as applicable; and
(ii) Complete, recording and charging to individual sites, activities, and operable units, as applicable, all costs attributable to the recipient's CERCLA effort.
(7) Financial reporting. The recipient's accounting system must use actual costs as the basis for all reports of direct site charges. The recipient must comply with the requirements for financial reporting contained in § 35.6670.
(b) Recordkeeping system standards. (1) The recipient must maintain a recordkeeping system that enables site-specific costs to be tracked by site, activity, and operable unit, as applicable, and provides sufficient documentation for cost recovery purposes.
(2) The recipient must provide this site-specific documentation to the EPA Regional Office within 30 working days of a request, unless another time frame is specified in the Cooperative Agreement.
(3) In addition, the recipient must comply with the requirements regarding records described in §§ 35.6700, 35.6705, and 35.6710. The recipient must comply with the requirements regarding source documentation described in 2 CFR 200.302.
(4) For pre-remedial and Core Program activities, the recordkeeping system must comply with the requirements described in paragraphs (a)(3) and (a)(4) of this section.
§ 35.6275   Period of availability of funds.
The recipient must comply with the requirements regarding the availability of funds described in 2 CFR parts 200 and 1500.
(b) Except as permitted in § 35.6285, the Award Official must sign the assistance agreement before costs are incurred. The recipient may incur costs between the date the Award Official signs the assistance agreement and the date the recipient signs the agreement, if the costs are identified in the agreement and the recipient does not change the agreement.
§ 35.6280   Payments.
(a) General. In addition to the following requirements, the recipient must comply with the requirements regarding payment described in 2 CFR 200.305.
(1) Assignment of payment. The recipient cannot assign the right to receive payments under the recipient's Cooperative Agreement. EPA will make payments only to the payee identified in the Cooperative Agreement.
(2) Interest. The interest a recipient earns on an advance of EPA funds is subject to the requirements of 2 CFR 200.305.
(b) Payment method —(1) Letter of credit. In order to receive payment by the letter of credit method, the recipient must comply with the requirements regarding letter of credit described in 2 CFR 200.305. The recipient must identify and charge costs to specific sites, activities, and operable units, as applicable, for drawdown purposes as specified in the Cooperative Agreement.
(2) Reimbursement. If the recipient is unable to meet letter of credit requirements, EPA will pay the recipient by reimbursement. The recipient must comply with the requirements regarding reimbursement described in 2 CFR 200.305.
(3) Working capital advances. If the recipient is unable to meet the criteria for payment by either letter of credit or reimbursement, EPA may provide cash on a working capital advance basis. Under this procedure EPA shall advance cash to the recipient to cover its estimated disbursement needs for an initial period generally geared to the recipient's disbursing cycle. Thereafter, EPA shall reimburse the recipient for its actual cash disbursements. In such cases, the recipient must comply with the requirements regarding working capital advances described in 2 CFR 200.305.
§ 35.6285   Recipient payment of response costs.
The recipient may pay for its share of response costs using cash, services, credits or any combination of these, as follows:
(a) Cash. The recipient may pay for its share of response costs in the form of cash.
(b) Services. The recipient may provide equipment and services to satisfy its cost share requirements under Cooperative Agreements. The recipient must comply with the requirements regarding in-kind and donated services described in 2 CFR 200.306.
(c) Credit —(1) General credit requirements. Credits are limited to State site-specific expenses that EPA determines to be reasonable, documented, direct, out-of-pocket expenditures of non-Federal funds for remedial action, as defined in CERCLA section 101(24), that are consistent with a permanent remedy at the site. Credits are established on a site-specific basis. Only a State may claim credit.
(i) The State may claim credit for response activity obligations or expenditures incurred by the State or political subdivision between January 1, 1978, and December 11, 1980.
(ii) The State may claim credit for remedial action expenditures made by the State after October 17, 1986. If such expenditures occurred after the site was listed on the NPL (Appendix B to 40 CFR Part 300), they will be eligible for a credit only if the State initiated the remedial action after obtaining EPA's written approval.
(iii) The State may not claim credit for removal actions taken after December 11, 1980.
(2) Credit submission requirements. Although EPA may require additional documentation, the State must submit the following before EPA will approve the use of the credit:
(i) Specific amounts claimed for credit, by site (estimated amounts are unacceptable), based on supporting cost documentation;
(ii) Units of government (State agency, county, local) that incurred the costs, by site;
(iii) Description of the specific function performed by each unit of government at each site;
(iv) Certification (signed by the State's fiscal manager or the financial director for each unit of government) that credit costs have not been previously reimbursed by the Federal Government or any other party, and have not been used for matching purposes under any other Federal program or grant; and
(v) Documentation, if requested by EPA, to ensure the actions undertaken at the site are cost eligible and consistent with CERCLA, as amended, and the NCP requirements in 40 CFR part 300. This requirement does not apply for costs incurred before December 11, 1980.
(3) Use of credit. The State must first apply credit at the site at which it was earned. With the approval of EPA, the State may use excess credit earned at one site for its cost share at another site ( See CERCLA section 104(c)(5)). Credits must be applied on a site-specific basis, and, therefore, may not be used to meet State cost share requirements for Core Program Cooperative Agreements. EPA will not reimburse excess credit.
(4) Credit verification procedures. Expenditure submissions are subject to verification by audit or other financial review. EPA may conduct a technical review (including inspection) to verify that the claimed remedial action is consistent with CERCLA and the NCP (40 CFR part 300).
(d) Excess cash cost share contributions/overmatch. The recipient may direct EPA to return the excess funds or to use the overmatch at one site to meet the cost share obligation at another site. The recipient may not use contributions in excess of the required cost share at one site to meet the cost share obligation for the Core Program cost share. Overmatch is not “credit” pursuant to paragraph (c)(3) of this section.
(e) Cost sharing. The recipient must comply with the requirements regarding cost sharing described in 2 CFR 200.306. Finally, the recipient cannot use costs incurred under the Core Program to offset cost share requirements at a site.
(f) Advance match. (1) A Cooperative Agreement for a site-specific response entered into after October 17, 1986, cannot authorize a State to contribute funds during remedial planning and then apply those contributions to the remedial action cost share (advance match).
(2) A State may seek reimbursement for costs incurred under Cooperative Agreements which authorize advance match.
(3) Reimbursements are subject to the availability of appropriated funds.
(4) If the State does not seek reimbursement, EPA will apply the advance match to off-set the State's required cost share for remedial action at the site. The State may not use advance match for credit at any other site, nor may the State receive reimbursement until the conclusion of CERCLA-funded remedial response activities. Also, the State may not use advance match for credit against cost share obligations for Core Program Cooperative Agreements.
(5) Claims for advance match are subject to verification by audit.
§ 35.6290   Program income.
The recipient must comply with the requirements regarding program income described in 2 CFR 200.307 and 2 CFR part 1500. Recoveries of Federal cost share amounts are not program income, and whether such recoveries are received before or after expiration of the Cooperative Agreement, must be reimbursed promptly to EPA.
§ 35.6300   General personal property acquisition and use requirements.
(a) General. (1) Property may be acquired only when authorized in the Cooperative Agreement.
(2) The recipient must acquire the property during the approved project period.
(3) The recipient must:
(i) Charge property costs by site, activity, and operable unit, as applicable;
(ii) Document the use of the property by site, activity, and operable unit, as applicable; and
(iii) Solicit and follow EPA's instructions on the disposal of any property purchased with CERCLA funds as specified in §§ 35.6340 and 35.6345.
(b) Exception. The recipient is not required to charge property costs by site under a pre-remedial or Core Program Cooperative Agreement.
§ 35.6305   Obtaining supplies.
To obtain supplies, the recipient must agree to comply with the requirements in §§ 35.6300, 35.6315(b), 35.6325 through 35.6340, and 35.6350. Supplies obtained with Core Program funds must be for non-site-specific purposes. All purchases of supplies under the Core Program must comply with the requirements in §§ 35.6300, 35.6315(b), 35.6325 through 35.6340, and 35.6350, except where these requirements are site-specific.
§ 35.6310   Obtaining equipment.
To obtain equipment, the recipient must agree to comply with the requirements in §§ 35.6300 and 35.6315 through 35.6350.
§ 35.6315   Alternative methods for obtaining property.
(a) Purchase equipment with recipient funds. The recipient may purchase equipment with the recipient's own funds and may charge EPA a fee for using equipment on a CERCLA-funded project. The fee must be based on a usage rate, subject to the usage rate requirements in § 35.6320.
(b) Borrow federally owned property. The recipient may borrow federally owned property, with the exception of motor vehicles, for use on CERCLA-funded projects. The loan of the federally owned property may only extend through the project period. At the end of the project period, or when the federally owned property is no longer needed for the project, the recipient must return the property to the Federal Government.
(c) Lease, use contractor services, or purchase with CERCLA funds. To acquire equipment through lease, use of contractor services, or purchase with CERCLA funds, the recipient must conduct and document a cost comparison analysis to determine which of these methods of obtaining equipment is the most cost effective. In order to obtain the equipment, the recipient must submit documentation of the cost comparison analysis to EPA for approval. The recipient must obtain the equipment through the most cost-effective method, subject to the following requirements:
(1) Lease or rent equipment. If it is the most cost-effective method of acquisition, the recipient may lease or rent equipment, subject only to the requirements in § 35.6300.
(2) Use contractor services. (i) If it is the most cost-effective method of acquisition, the recipient may hire the services of a contractor.
(ii) The recipient must obtain award official approval before authorizing the contractor to purchase equipment with CERCLA funds. ( See § 35.6325, regarding the title and vested interest of equipment purchased with CERCLA funds.) This does not apply for recipients who have used the sealed bids method of procurement.
(iii) The recipient must require the contractor to allocate the cost of the contractor services by site, activity, and operable unit, as applicable.
(3) Purchase equipment with CERCLA funds. If equipment purchase is the most cost-effective method of obtaining the equipment, the recipient may purchase the equipment with CERCLA funds. To purchase equipment with CERCLA funds, the recipient must comply with the following requirements:
(i) The recipient must include in the Cooperative Agreement application a list of all items of equipment to be purchased with CERCLA funds, with the price of each item.
(ii) If the equipment is to be used on sites, the recipient must allocate the cost of the equipment by site, activity, and operable unit, as applicable, by applying a usage rate subject to the usage rate requirements in § 35.6320.
(iii) The recipient may not use CERCLA funds to purchase a transportable or mobile treatment system.
(iv) Equipment obtained with Core Program funds must be for non-site-specific purposes. All purchases of equipment must comply with the requirements in §§ 35.6300, and 35.6310 through 35.6350, except where these requirements are site-specific.
§ 35.6320   Usage rate.
(a) Usage rate approval. To charge EPA a fee for use of equipment purchased with recipient funds or to allocate the cost of equipment by site, activity, and operable unit, as applicable, the recipient must apply a usage rate. The recipient must submit documentation of the usage rate computation to EPA. The EPA-approved usage rate must be included in the Cooperative Agreement before the recipient incurs these equipment costs.
(b) Usage rate application. The recipient must record the use of the equipment by site, activity, and operable unit, as applicable, and must apply the usage rate to calculate equipment charges by site, activity, and operable unit, as applicable. For Core Program and pre-remedial activities, the recipient is not required to apply a usage rate.
§ 35.6325   Title and EPA interest in CERCLA-funded property.
(a) EPA's interest in CERCLA-funded property. EPA has an interest (the percentage of EPA's participation in the total award) in both equipment and supplies purchased with CERCLA funds.
(b) Title in CERCLA-funded property. Title in both equipment and supplies purchased with CERCLA funds vests in the recipient.
(1) Right to transfer title. EPA retains the right to transfer title of all property purchased with CERCLA funds to the Federal Government or a third party within 120 calendar days after project completion or at the time of disposal.
(2) Equipment used as all or part of the remedy. The following requirements apply to equipment used as all or part of the remedy:
(i) Fixed in-place equipment. EPA no longer has an interest in fixed in-place equipment once the equipment is installed.
(ii) Equipment that is an integral part of services to individuals. EPA no longer has an interest in equipment that is an integral part of services to individuals, such as pipes, lines, or pumps providing hookups for homeowners on an existing water distribution system, once EPA certifies that the remedy is operational and functional.
§ 35.6330   Title to federally owned property.
Title to all federally owned property vests in the Federal Government.
§ 35.6335   Property management standards.
The recipient must comply with the following property management standards for property purchased with CERCLA funds. The recipient may use its own property management system if it meets the following standards.
(a) Control. The recipient must maintain:
(1) Property records for CERCLA-funded property which include the contents specified in § 35.6700(c);
(2) A control system that ensures adequate safeguards for prevention of loss, damage, or theft of the property. The recipient must make provisions for the thorough investigation and documentation of any loss, damage, or theft;
(3) Procedures to ensure maintenance of the property are in good condition and periodic calibration of the instruments used for precision measurements;
(4) Sales procedures to ensure the highest possible return, if the recipient is authorized to sell the property;
(5) Provisions for financial control and accounting in the financial management system of all equipment; and
(6) Identification of all federally owned property.
(b) Inventory and reporting for CERCLA-funded equipment —(1) Physical inventory. The recipient must conduct a physical inventory at least once every two years for all equipment except that which is part of the in-place remedy. The recipient must reconcile physical inventory results with the equipment records.
(2) Inventory reports. The recipient must comply with requirements for inventory reports set forth in § 35.6660.
(c) Inventory and reporting for federally owned property —(1) Physical inventory. The recipient must conduct a physical inventory:
(i) Annually;
(ii) When the property is no longer needed; and
(iii) Within 90 days after the end of the project period.
(2) Inventory reports. The recipient must comply with requirements for inventory reports in § 35.6660.
§ 35.6340   Disposal of CERCLA-funded property.
(a) Equipment. For equipment that is no longer needed, or at the end of the project period, whichever is earlier, the recipient must:
(1) Analyze two alternatives: The cost of leaving the equipment in place, and the cost of removing the equipment and disposing of it in another manner.
(2) Document the analysis of the two alternatives in the inventory report. See § 35.6660 regarding requirements for the inventory report.
(i) If it is most cost-effective to remove the equipment and dispose of it in another manner:
(A) If the equipment has a residual fair market value of $5,000 or more, the recipient must request disposition instructions from EPA in the inventory report. See § 35.6345 for equipment disposal options.
(B) If the equipment has a residual fair market value of less than $5,000, the recipient may retain the equipment for the recipient's use on another CERCLA site. If, however, there is any remaining residual value at the time of final disposition, the recipient must reimburse the Hazardous Substance Superfund for EPA's vested interest in the current fair market value of the equipment at the time of disposition.
(ii) If it is most cost-effective to leave the equipment in place, recommend in the inventory report that the equipment be left in place.
(3) Submit the inventory report to EPA, even if EPA has stopped supporting the project.
(b) Supplies. (1) If supplies have an aggregate fair market value of $5,000 or more at the end of the project period, the recipient must take one of the following actions at the direction of EPA:
(i) Use the supplies on another CERCLA project and reimburse the original project for the fair market value of the supplies;
(ii) If both the recipient and EPA concur, keep the supplies and reimburse the Hazardous Substance Superfund for EPA's interest in the current fair market value of the supplies; or
(iii) Sell the supplies and reimburse the Hazardous Substance Superfund for EPA's interest in the current fair market value of the supplies, less any reasonable selling expenses.
(2) If the supplies remaining at the end of the project period have an aggregate fair market value of less than $5,000, the recipient may keep the supplies to use on another CERCLA project. If the recipient cannot use the supplies on another CERCLA project, then the recipient may keep or sell the supplies without reimbursing the Hazardous Substance Superfund.
§ 35.6345   Equipment disposal options.
The following disposal options are available:
(a) Use the equipment on another CERCLA project and reimburse the original project for the fair market value of the equipment;
(b) If both the recipient and EPA concur, keep the equipment and reimburse the Hazardous Substance Superfund for EPA's interest in the current fair market value of the equipment;
(c) Sell the equipment and reimburse the Hazardous Substance Superfund for EPA's interest in the current fair market value of the equipment, less any reasonable selling expenses; or
(d) Return the equipment to EPA and, if applicable, EPA will reimburse the recipient for the recipient's proportionate share in the current fair market value of the equipment.
§ 35.6350   Disposal of federally owned property.
When federally owned property is no longer needed, or at the end of the project, the recipient must inform EPA that the property is available for return to the Federal Government. EPA will send disposition instructions to the recipient.
§ 35.6400   Acquisition and transfer of interest.
(a) An interest in real property may be acquired only with prior approval of EPA.
(1) If the recipient acquires real property in order to conduct the response, the recipient with jurisdiction over the property must agree to hold the necessary property interest.
(2) If it is necessary for the Federal Government to acquire the interest in real estate to permit conduct of a remedial action, the acquisition may be made only if the State provides assurance that it will accept transfer of the acquired interest in accordance with 40 CFR 300.510(f) of the NCP. States must follow the requirements in § 35.6105(b)(5).
(b) The recipient must comply with applicable Federal regulations for real property acquisition under assistance agreements contained in part 4 of this chapter, “Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs.”
§ 35.6405   Use.
The recipient must comply with the requirements regarding real property described in 2 CFR 200.311.
§ 35.6450   General requirements.
The recipient must comply with the requirements regarding copyrights described in 2 CFR part 200.315. The recipient must comply with the requirements regarding contract copyright provisions described in § 35.6595(b)(2).
§ 35.6500   General requirements.
(a) Force Account work is the use of the recipient's own employees or equipment for construction, construction-related activities (including architecture and engineering services), or repair or improvement to a facility. When using Force Account work, the recipient must demonstrate that the employees can complete the work as competently as, and more economically than, contractors, or that an emergency necessitates the use of the Force Account.
(b) Where the value of Force Account services exceeds the simplified acquisition threshold, the recipient must receive written authorization for use from the award official.
§ 35.6550   Procurement system standards.
(a) Recipient standards. (1) In addition to the procurement standards described in 2 CFR 200.317 through 200.327 and 2 CFR part 1500, the State shall comply with the requirements in the following: Paragraphs (a)(5), (a)(9), and (b) of this section, § 35.6555(c), in § 35.6565 the first sentence of the introductory text, the first sentence of paragraph (b), paragraph (d), and §§ 35.6570, 35.6575, and 35.6600. Political subdivisions and Tribes must follow all of the requirements included or referenced in this section through § 35.6610.
(2) EPA review. EPA reserves the right to review any recipient's procurement system or procurement action under a Cooperative Agreement.
(3) Code of conduct. The recipient must comply with the requirements of 2 CFR 200.318 (c)(1) which describes standards of conduct for employees, officers, and agents of the recipient.
(4) Completion of contractual and administrative issues. (i) The recipient is responsible for the settlement and satisfactory completion in accordance with sound business judgment and good administrative practice of all contractual and administrative issues arising out of procurements under the Cooperative Agreement.
(ii) EPA will not substitute its judgment for that of the recipient unless the matter is primarily a Federal concern.
(iii) Violations of law will be referred to the local, State, Tribal, or Federal authority having proper jurisdiction.
(5) Selection procedures. The recipient must have written selection procedures for procurement transactions.
(i) EPA may not participate in a recipient's selection panel except to provide technical assistance. EPA staff providing such technical assistance:
(A) Shall constitute a minority of the selection panel (limited to making recommendations on qualified offers and acceptable proposals based on published evaluation criteria) for the contractor selection process; and
(B) Are not permitted to participate in the negotiation and award of contracts.
(ii) When selecting a contractor, recipients:
(A) May not use EPA contractors to provide any support related to procuring a State contractor.
(B) May use the Corps of Engineers for review of State bidding documents, requests for proposals and bids and proposals received.
(6) Award. The recipient may award a contract only to a responsible contractor, as described in 2 CFR 200.318 (h) and must ensure that each contractor performs in accordance with all the provisions of the contract. ( See also § 35.6020.)
(7) Protest procedures. The recipient must comply with the requirements described in 2 CFR 200.318 (k) regarding protest procedures.
(8) [Reserved]
(9) Intergovernmental agreements. (i) To foster greater economy and efficiency, recipients are encouraged to enter into intergovernmental agreements for procurement or use of common goods and services.
(ii) Although intergovernmental agreements are not subject to the requirements set forth in this section through § 35.6610, all procurements under intergovernmental agreements are subject to these requirements except for procurements that are:
(A) Incidental to the purpose of the assistance agreement; and
(B) Made through a central public procurement unit.
(10) Value engineering. The recipient is encouraged to include value engineering clauses in contracts for construction projects of sufficient size to offer reasonable opportunities for cost reductions.
(b) Contractor standards —(1) Disclosure requirements regarding Potentially Responsible Party relationships. The recipient must require each prospective contractor to provide with its bid or proposal:
(i) Information on its financial and business relationship with all PRPs at the site and with the contractor's parent companies, subsidiaries, affiliates, subcontractors, or current clients at the site. Prospective contractors under a Core Program Cooperative Agreement must provide comparable information for all sites within the recipient's jurisdiction. (This disclosure requirement encompasses past financial and business relationships, including services related to any proposed or pending litigation, with such parties);
(ii) Certification that, to the best of its knowledge and belief, it has disclosed such information or no such information exists; and
(iii) A statement that it shall disclose immediately any such information discovered after submission of its bid or proposal or after award. The recipient shall evaluate such information and if a member of the contract team has a conflict of interest which prevents the team from serving the best interests of the recipient, the prospective contractor may be declared nonresponsible and the contract awarded to the next eligible bidder or offeror.
(2) Conflict of interest —(i) Conflict of interest notification. The recipient must require the contractor to notify the recipient of any actual, apparent, or potential conflict of interest regarding any individual working on a contract assignment or having access to information regarding the contract. This notification shall include both organizational conflicts of interest and personal conflicts of interest. If a personal conflict of interest exists, the individual who is affected shall be disqualified from taking part in any way in the performance of the assigned work that created the conflict of interest situation.
(ii) Contract provisions. The recipient must incorporate the following provisions or their equivalents into all contracts, except those for well-drilling, fence erecting, plumbing, utility hook-ups, security guard services, or electrical services:
(A) Contractor data. The contractor shall not provide data generated or otherwise obtained in the performance of contractor responsibilities under a contract to any party other than the recipient, EPA, or its authorized agents for the life of the contract, and for a period of five years after completion of the contract.
(B) Employment. The contractor shall not accept employment from any party other than the recipient or Federal agencies for work directly related to the site(s) covered under the contract for five years after the contract has terminated. The recipient agency may exempt the contractor from this requirement through a written release. This release must include EPA concurrence.
(3) Certification of independent price determination. The recipient must require that each contractor include in its bid or proposal a certification of independent price determination. This document certifies that no collusion, as defined by Federal and State antitrust laws, occurred during bid preparation.
(4) Recipient's Contractors. The recipient must require its contractor to comply with the requirements in §§ 35.6270(a)(1) and (2); 35.6320 (a) and (b); 35.6335; 35.6700; and 35.6705. For additional contractor requirements, see also § 35.6710(c); 35.6590(b); and 35.6610.
§ 35.6555   Competition.
The recipient must conduct all procurement transactions in a manner providing maximum full and open competition.
(a) Restrictions on competition. Inappropriate restrictions on competition include the following:
(1) Placing unreasonable requirements on firms in order for them to qualify to do business;
(2) Requiring unnecessary experience and excessive bonding requirements;
(3) Noncompetitive pricing practices between firms or between affiliated companies;
(4) Noncompetitive awards to consultants that are on retainer contracts;
(5) Organizational conflicts of interest;
(6) Specifying only a “brand name” product, instead of allowing “an equal” product to be offered and describing the performance of other relevant requirements of the procurement; and
(7) Any arbitrary action in the procurement process.
(b) Geographic and Indian Tribe preferences —(1) Geographic. When conducting a procurement, the recipient must prohibit the use of statutorily or administratively imposed in-State or local geographical preferences in evaluating bids or proposals. However, nothing in this section preempts State licensing laws. In addition, when contracting for architectural and engineering (A/E) services, the recipient may use geographic location as a selection criterion, provided that when geographic location is used, its application leaves an appropriate number of qualified firms, given the nature and size of the project, to compete for the contract.
(2) Indian Tribe. Any contract or subcontract awarded by an Indian Tribe or Indian intertribal consortium shall comply with the requirements of the Indian Self Determination Act.
(c) Written specifications. The recipient's written specifications must include a clear and accurate description of the technical requirements and the qualitative nature of the material, product or service to be procured.
(1) This description must not contain features which unduly restrict competition, unless the features are necessary to:
(i) Test or demonstrate a specific thing;
(ii) Provide for necessary interchangeability of parts and equipment; or
(iii) Promote innovative technologies.
(2) The recipient must avoid the use of detailed product specifications if at all possible.
(d) Public notice. When soliciting bids or proposals, the recipient must allow sufficient time (generally 30 calendar days) between public notice of the proposed project and the deadline for receipt of bids or proposals. The recipient must publish the public notice in professional journals, newspapers, or publications of general circulation over a reasonable area.
(e) Prequalified lists. Recipients may use prequalified lists of persons, firms, or products to acquire goods and services. The list must be current and include enough qualified sources to ensure maximum open and free competition. Recipients must not preclude potential bidders from qualifying during the solicitation period.
§ 35.6565   Procurement methods.
The recipient must comply with the requirements for payment to consultants described in 2 CFR 1500.10. In addition, the recipient must comply with the following requirements:
(a) Small purchase procedures. Small purchase procedures are those relatively simple and informal procurement methods for securing services, supplies, or other property that do not cost more than the simplified acquisition threshold in the aggregate. If small purchase procurements are used, the recipient must obtain and document price or rate quotations from an adequate number of qualified sources.
(b) Sealed bids (formal advertising). (For a remedial action award contract, except for Architectural/Engineering services and post-removal site control, the recipient must obtain the award official's approval to use a procurement method other than the sealed bid method.) Bids are publicly solicited and a fixed-price contract (lump sum or unit price) is awarded to the responsible bidder whose bid, conforming with all the material terms and conditions of the invitation for bids, is the lowest in price.
(1) In order for the recipient to use the sealed bid method, the following conditions must be met:
(i) A complete, adequate, and realistic specification or purchase description is available;
(ii) Two or more responsible bidders are willing and able to compete effectively for the business; and
(iii) The procurement lends itself to a fixed-price contract and the selection of the successful bidder can be made principally on the basis of price.
(2) If the recipient uses the sealed bid method, the recipient must comply with the following requirements:
(i) Publicly advertise the invitation for bids and solicit bids from an adequate number of known suppliers, providing them sufficient time prior to the date set for opening the bids;
(ii) The invitation for bids, which must include any specifications and pertinent attachments, must define the items or services in order for the bidder to properly respond;
(iii) Publicly open all bids at the time and place prescribed in the invitation for bids;
(iv) Award the fixed-price contract in writing to the lowest responsive and responsible bidder. Where specified in bidding documents, the recipient shall consider factors such as discounts, transportation cost, and life cycle costs in determining which bid is lowest. The recipient may only use payment discounts to determine the low bid when prior experience indicates that such discounts are usually taken advantage of; and
(v) If there is a sound documented reason, the recipient may reject any or all bids.
(c) Competitive proposals. The technique of competitive proposals is normally conducted with more than one source submitting an offer, and either a fixed-price or cost-reimbursement type contract is awarded. It is generally used when conditions are not appropriate for the use of sealed bids. If the recipient uses the competitive proposal method, the following requirements apply:
(1) Recipients must publicize requests for proposals and all evaluation factors and must identify their relative importance. The recipient must honor any response to publicized requests for proposals to the maximum extent practical;
(2) Recipients must solicit proposals from an adequate number of qualified sources;
(3) Recipients must have a method for conducting technical evaluations of the proposals received and for selecting awardees;
(4) Recipients must award the contract to the responsible firm whose proposal is most advantageous to the program, with price and other factors considered; and
(5) Recipients may use competitive proposal procedures for qualifications-based procurement of architectural/engineering (A/E) professional services whereby competitor's qualifications are evaluated and the most qualified competitor is selected, subject to negotiation of fair and reasonable compensation. This method, where price is not used as a selection factor, may only be used in the procurement of A/E professional services. The recipient may not use this method to purchase other types of services even though A/E firms are a potential source to perform the proposed effort.
(d) Noncompetitive proposals. (1) The recipient may procure by noncompetitive proposals only when the award of a contract is infeasible under small purchase procedures, sealed bids or competitive proposals, and one of the following circumstances applies:
(i) The item is available only from a single source;
(ii) The public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation (a declaration of an emergency under State law does not necessarily constitute an emergency under the EPA Superfund program's criteria);
(iii) The award official authorized noncompetitive proposals; or
(iv) After solicitation of a number of sources, competition is determined to be inadequate.
(2) When using noncompetitive procurement, the recipient must conduct a cost analysis in accordance with the requirements described in § 35.6585.
§ 35.6570   Use of the same engineer during subsequent phases of response.
(a) If the public notice clearly stated the possibility that the firm or individual selected could be awarded a contract for follow-on services and initial procurement complied with the procurement requirements, the recipient of a CERCLA remedial response Cooperative Agreement may use the engineer procured to conduct any or all of the follow-on engineering activities without going through the public notice and evaluation procedures.
(b) The recipient may also use the same engineer during subsequent phases of the project in the following cases:
(1) Where the recipient conducted the RI, FS, or design activities without EPA assistance but is using CERCLA funds for follow-on activities, the recipient may use the engineer for subsequent work provided the recipient certifies:
(i) That it complied with the procurement requirements in § 35.6565 when it selected the engineer and the code of conduct requirements described in 2 CFR 200.318(c)(1).
(ii) That any CERCLA-funded contract between the engineer and the recipient meets all of the other provisions as described in the procurement requirements in this subpart.
(2) Where EPA conducted the RI, FS, or design activities but the recipient will assume the responsibility for subsequent phases of response under a Cooperative Agreement, the recipient may use, with the award official's approval, EPA's engineer contractor without further public notice or evaluation provided the recipient follows the rest of the procurement requirements to award the contract.
§ 35.6575   Restrictions on types of contracts.
(a) Prohibited contracts. The recipient's procurement system must not allow cost-plus-percentage-of-cost (e.g., a multiplier which includes profit) or percentage-of-construction-cost types of contracts.
(b) Removal. Under a removal Cooperative Agreement, the recipient must award a fixed-price contract (lump sum, unit price, or a combination of the two) when procuring contractor support, regardless of the procurement method selected, unless the recipient obtains the award official's prior written approval.
(c) Time and material contracts. The recipient may use time and material contracts only if no other type of contract is suitable, and if the contract includes a ceiling price that the contractor exceeds at its own risk.
§ 35.6580   [Reserved]
§ 35.6585   Cost and price analysis.
(a) General. The recipient must conduct and document a cost or price analysis in connection with every procurement action including contract modification.
(1) Cost analysis. The recipient must conduct and document a cost analysis for all negotiated contracts over the simplified acquisition threshold and for all change orders regardless of price. A cost analysis is not required when adequate price competition exists and the recipient can establish price reasonableness. The recipient must base its determination of price reasonableness on a catalog or market price of a commercial product sold in substantial quantities to the general public, or on prices set by law or regulation.
(2) Price analysis. In all instances other than those described in paragraph (a)(1) of this section, the recipient must perform a price analysis to determine the reasonableness of the proposed contract price.
(b) Profit analysis. For each contract in which there is no price competition and in all cases in which cost analysis is performed, the recipient must negotiate profit as a separate element of the price. To establish a fair and reasonable profit, consideration will be given to the complexity of the work to be performed, the risk borne by the contractor, the contractor's investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work.
§ 35.6590   Bonding and insurance.
(a) General. The recipient must meet the requirements regarding bonding described in 2 CFR 200.326. The recipient must clearly and accurately state in the contract documents the bonds and insurance requirements, including the amounts of security coverage that a bidder or offeror must provide.
(b) Accidents and catastrophic loss. The recipient must require the contractor to provide insurance against accidents and catastrophic loss to manage any risk inherent in completing the project.
§ 35.6595   Contract provisions.
(a) General. Each contract must be a sound and complete agreement, and include the following provisions:
(1) Nature, scope, and extent of work to be performed;
(2) Time frame for performance;
(3) Total cost of the contract; and
(4) Payment provisions.
(b) Other contract provisions. Recipients' contracts must include the following provisions:
(1) Energy efficiency. A contract must comply with mandatory standards and policies on energy efficiency contained in the State's energy conservation plan, which is issued under 10 CFR part 420.
(2) Patents inventions, and copyrights. All contracts must include notice of EPA requirements and regulations pertaining to reporting and patent rights under any contract involving research, developmental, experimental or demonstration work with respect to any discovery or invention which arises or is developed while conducting work under a contract. This notice shall also include EPA requirements and regulations pertaining to copyrights and rights to data contained in 2 CFR 200.315.
(3) Labor standards. The recipient must comply with Appendix II to 2 CFR part 200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards.
(4) Conflict of interest. The recipient must include provisions pertaining to conflict of interest as described in § 35.6550(b)(2)(ii).
§ 35.6600   Contractor claims.
(a) General. The recipient must conduct an administrative and technical review of each claim before EPA will consider funding these costs.
(b) Claims settlement. The recipient may incur costs (including legal, technical and administrative) to assess the merits of or to negotiate the settlement of a claim by or against the recipient under a contract, provided:
(1) The claim arises from work within the scope of the Cooperative Agreement;
(2) A formal Cooperative Agreement amendment is executed specifically covering the costs before they are incurred;
(3) The costs are not incurred to prepare documentation that should be prepared by the contractor to support a claim against the recipient; and
(4) The award official determines that there is a significant Federal interest in the issues involved in the claim.
(c) Claims defense. The recipient may incur costs (including legal, technical and administrative) to defend against a contractor claim for increased costs under a contract or to prosecute a claim to enforce a contract provided:
(1) The claim arises from work within the scope of the Cooperative Agreement;
(2) A formal Cooperative Agreement amendment is executed specifically covering the costs before they are incurred;
(3) Settlement of the claim cannot occur without arbitration or litigation;
(4) The claim does not result from the recipient's mismanagement;
(5) The award official determines that there is a significant Federal interest in the issues involved in the claim; and
(6) In the case of defending against a contractor claim, the claim does not result from the recipient's responsibility for the improper action of others.
§ 35.6605   Privity of contract.
Neither EPA nor the United States shall be a party to any contract nor to any solicitation or request for proposals.
§ 35.6610   Contracts awarded by a contractor.
The recipient must require its contractor to comply with the following provisions in the award of contracts (i.e. subcontracts). (This section does not apply to a supplier's procurement of materials to produce equipment, materials and catalog, off-the-shelf, or manufactured items.)
(a) The requirements referenced in § 35.6020.
(b) The limitations on contract award in § 35.6550(a)(6).
(c) [Reserved]
(d) The requirements regarding specifications in § 35.6555 (a)(6) and (c).
(e) The Federal cost principles in 2 CFR part 200 subpart E.
(f) The prohibited types of contracts in § 35.6575(a).
(g) The cost, price analysis, and profit analysis requirements in § 35.6585.
(h) The applicable provisions in § 35.6595 (b).
(i) The applicable provisions in § 35.6555(b)(2).
§ 35.6650   Progress reports.
(a) Reporting frequency. The recipient must submit progress reports as specified in the Cooperative Agreement. Progress reports will be required no more frequently than quarterly, and will be required at least annually. Notwithstanding the requirements of 2 CFR 200.328 and 200.329, the reports shall be due within 60 days after the reporting period.
(b) Content. The progress report must contain the following information:
(1) An explanation of work accomplished during the reporting period, delays, or other problems, if any, and a description of the corrective measures that are planned. For pre-remedial Cooperative Agreements, the report must include a list of the site-specific products completed and the estimated number of technical hours spent to complete each product.
(2) A comparison of the percentage of the project completed to the project schedule, and an explanation of significant discrepancies.
(3) A comparison of the estimated funds spent to date to planned expenditures and an explanation of significant discrepancies. For remedial, enforcement, and removal reports, the comparison must be on a per task basis.
(4) An estimate of the time and funds needed to complete the work required in the Cooperative Agreement, a comparison of that estimate to the time and funds remaining, and a justification for any increase.
§ 35.6655   Notification of significant developments.
Events may occur between the scheduled performance reporting dates which have significant impact upon the Cooperative Agreement-supported activity. In such cases, the recipient must inform the EPA project officer as soon as the following types of conditions become known:
(a) Problems, delays, or adverse conditions which will materially impair the ability to meet the objective of the award. This disclosure must include a statement of the action taken, or contemplated, and any assistance needed to resolve the situation.
(b) Favorable developments which enable meeting time schedules and objectives sooner or at less cost than anticipated or producing more beneficial results than originally planned.
§ 35.6660   Property inventory reports.
(a) CERCLA-funded property —(1) Content. The report must contain the following information:
(i) Classification and value of remaining supplies;
(ii) Description of all equipment purchased with CERCLA funds, including its current condition;
(iii) Verification of the current use and continued need for the equipment by site, activity, and operable unit, as applicable;
(iv) Notification of any property which has been stolen or vandalized; and
(v) A request for disposition instructions for any equipment no longer needed on the project.
(2) Reporting frequency. The recipient must submit an inventory report to EPA at the following times:
(i) Within 90 days after completing any CERCLA-funded project or any response activity at a site; and
(ii) When the equipment is no longer needed for any CERCLA-funded project or any response activity at a site.
(b) Federally owned property —(1) Content. The recipient must include the following information for each federally owned item in the inventory report:
(i) Description;
(ii) Decal number;
(iii) Current condition; and
(iv) Request for disposition instructions.
(2) Reporting frequency. The recipient must submit an inventory report to the appropriate EPA property accountable officer at the following times:
(i) Annually, due to EPA on the anniversary date of the award;
(ii) When the property is no longer needed; and
(iii) Within 90 days after the end of the project period.
§ 35.6665   [Reserved]
§ 35.6670   Financial reports.
(a) General. The recipient must comply with the requirements regarding financial reporting described in 2 CFR 200.328.
(b) Financial Status Report —(1) Content. (i) The Financial Status Report (SF-269) must include financial information by site, activity, and operable unit, as applicable.
(ii) A final Financial Status Report (FSR) must have no unliquidated obligations. If any obligations remain unliquidated, the FSR is considered an interim report and the recipient must submit a final FSR to EPA after liquidating all obligations.
(2) Reporting frequency. The recipient must file a Financial Status Report as follows:
(i) If a Financial Status Report is required annually, the report is due 90 days after the end of the Federal fiscal year or as specified in the Cooperative Agreement. If quarterly or semiannual Financial Status Reports are required, reports are due in accordance with 2 CFR 200.328;
(ii) Within 90 calendar days after completing each CERCLA-funded response activity at a site (submit the FSR only for each completed activity); and
(iii) Within 90 calendar days after termination or closeout of the Cooperative Agreement.
§ 35.6700   Project records.
The lead agency for the response action must compile and maintain an administrative record consistent with section 113 of CERCLA, the National Contingency Plan, and relevant EPA policy and guidance. In addition, recipients of assistance (whether lead or support agency) are responsible for maintaining project files described as follows.
(a) General. The recipient must maintain project records by site, activity, and operable unit, as applicable.
(b) Financial records. The recipient must maintain records which support the following items:
(1) Amount of funds received and expended; and
(2) Direct and indirect project cost.
(c) Property records. The recipient must maintain records which support the following items:
(1) Description of the property;
(2) Manufacturer's serial number, model number, or other identification number;
(3) Source of the property, including the assistance identification number;
(4) Information regarding whether the title is vested in the recipient or EPA;
(5) Unit acquisition date and cost;
(6) Percentage of EPA's interest;
(7) Location, use and condition (by site, activity, and operable unit, as applicable) and the date this information was recorded; and
(8) Ultimate disposition data, including the sales price or the method used to determine the price, or the method used to determine the value of EPA's interest for which the recipient compensates EPA in accordance with §§ 35.6340, 35.6345, and 35.6350.
(d) Procurement records —(1) General. The recipient must maintain records which support the following items, and must make them available to the public:
(i) The reasons for rejecting any or all bids; and
(ii) The justification for a procurement made on a noncompetitively negotiated basis.
(2) Procurements in excess of the simplified acquisition threshold. The recipient's records and files for procurements in excess of the simplified acquisition threshold must include the following information, in addition to the information required in paragraph (d)(1) of this section:
(i) The basis for contractor selection;
(ii) A written justification for selecting the procurement method;
(iii) A written justification for use of any specification which does not provide for maximum free and open competition;
(iv) A written justification for the choice of contract type; and
(v) The basis for award cost or price, including a copy of the cost or price analysis made in accordance with § 35.6585 and documentation of negotiations.
(e) Other records. The recipient must maintain records which support the following items:
(1) Time and attendance records and supporting documentation;
(2) Documentation of compliance with statutes and regulations that apply to the project; and
(3) The number of site-specific technical hours spent to complete each pre-remedial product.
§ 35.6705   Records retention.
(a) Applicability. This requirement applies to all financial and programmatic records, supporting documents, statistical records, and other records which are required to be maintained by the terms, program regulations, or the Cooperative Agreement, or are otherwise reasonably considered as pertinent to program regulations or the Cooperative Agreement.
(b) Length of retention period. The recipient must maintain all records for 10 years following submission of the final Financial Status Report unless otherwise directed by the EPA award official, and must obtain written approval from the EPA award official before destroying any records. If any litigation, claim, negotiation, audit, cost recovery, or other action involving the records has been started before the expiration of the ten-year period, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular ten-year period, whichever is later.
(c) Substitution of an unalterable electronic format. An unalterable electronic format, acceptable to EPA, may be substituted for the original records. The copying of any unalterable electronic format must be performed in accordance with the technical regulations concerning Federal Government records (36 CFR parts 1220 through 1234) and EPA records management requirements.
(d) Starting date of retention period. The recipient must comply with the requirements regarding the starting dates for records retention described in 2 CFR 1500.7.
§ 35.6710   Records access.
(a) Recipient requirements. The recipient must comply with the requirements regarding records access described in 2 CFR 200.337.
(b) Availability of records. The recipient must, with the exception of certain policy, deliberative, and enforcement documents which may be held confidential, ensure that all files are available to the public.
(c) Contractor requirements. The recipient must require its contractor to comply with the requirements regarding records access described in 2 CFR 200.337.
§ 35.6750   Modifications.
The recipient must comply with the requirements regarding changes to the Cooperative Agreement described by subject in 2 CFR part 200.
§ 35.6755   Monitoring program performance.
The recipient must comply with the requirements regarding program performance monitoring described in 2 CFR 200.329.
§ 35.6760   Remedies for noncompliance and termination.
The recipient must comply with all terms and conditions in the Cooperative Agreement and is subject to the remedies for noncompliance with the terms of an award and termination described in 2 CFR 200.339 and 200.340.
§ 35.6765   Non-Federal audit.
The recipient must comply with the requirements regarding non-Federal audits described in 2 CFR part 200 subpart F.
§ 35.6770   Disputes.
The recipient must comply with the requirements regarding dispute resolution procedures described in 2 CFR part 1500 subpart E.
§ 35.6775   Exclusion of third-party benefits.
The Cooperative Agreement benefits only the signatories to the Cooperative Agreement.
§ 35.6780   Closeout.
(a) Closeout of a Cooperative Agreement, or an activity under a Cooperative Agreement, can take place in the following situations:
(1) After the completion of all work for a response activity at a site; or
(2) After all activities under a Cooperative Agreement have been completed; or
(3) Upon termination of the Cooperative Agreement.
(b) The recipient must comply with the closeout requirements described in 2 CFR 200.344 and 200.345.
§ 35.6785   Collection of amounts due.
The recipient must comply with the requirements described in 2 CFR 200.346 regarding collection of amounts due.
§ 35.6790   Specific conditions.
If EPA determines that a recipient is not responsible, EPA may impose specific conditions on the award as described in 2 CFR 200.208 or restrictions on the award as described in 2 CFR 200.339.
§ 35.6800   Superfund State Contract.
A Superfund State Contract (SSC) with a State is required before EPA can obligate or expend funds for a remedial action at a site within the State and before EPA or a political subdivision can conduct the remedial action. An SSC also ensures State or Indian Tribe involvement consistent with CERCLA sections 121(f) and 126, respectively, and obtains the required section 104 assurances ( See § 35.6105(b)). An SSC may also be used to document the roles and responsibilities of a State, Indian Tribe, and political subdivision during any response action at a site. A political subdivision may be a signatory to the SSC.
§ 35.6805   Contents of an SSC.
The SSC must include the following provisions:
(a) General authorities , which documents the relevant statutes and regulations (of each government entity that is a party to the contract) governing the contract.
(b) Purpose of the SSC , which describes the response activities to be conducted and the benefits to be derived.
(c) Negation of agency relationship between the signatories , which states that no signatory of the SSC can represent or act on the behalf of any other signatory in any matter associated with the SSC.
(d) A site description , pursuant to § 35.6105(a)(2)(i).
(e) A site-specific Statement of Work , pursuant to § 35.6105(a)(2)(ii) and a statement of whether the contract constitutes an initial SSC or an amendment to an existing contract.
(f) A statement of intention to follow EPA policy and guidance.
(g) A project schedule to be prepared during response activities.
(h) A statement designating a primary contact for each party to the contract, which designates representatives to act on behalf of each signatory in the implementation of the contract. This statement must document the authority of each project manager to approve modifications to the project so long as such changes are within the scope of the contract and do not significantly impact the SSC.
(i) The CERCLA assurances , as appropriate, described as follows:
(1) Operation and maintenance. The State must provide an assurance pursuant to § 35.6105(b)(1). The State's responsibility for operation and maintenance generally begins when EPA determines that the remedy is operational and functional or one year after construction completion, whichever is sooner ( See , 40 CFR 300.435(f)).
(2) Twenty-year waste capacity. The State must provide an assurance pursuant to § 35.6105(b)(3).
(3) Off-site storage , treatment, or disposal. If off-site storage, destruction, treatment, or disposal is required, the State must provide an assurance pursuant to § 35.6105(b)(4); the political subdivision may not provide this assurance.
(4) Real property acquisition. When real property must be acquired, the State must provide an assurance pursuant to § 35.6105(b)(5).
(5) Provision of State cost share. The State must provide assurances for cost sharing pursuant to § 35.6105(b)(2). Even if the political subdivision is providing the actual cost share, the State must guarantee payment of the cost share in the event of default by the political subdivision.
(j) Cost share conditions , which include:
(1) An estimate of the response action cost (excluding EPA's indirect costs) that requires cost share;
(2) The basis for arriving at this figure ( See § 35.6285(c) for credit provisions); and
(3) The payment schedule as negotiated by the signatories, and consistent with either a lump-sum or incremental-payment option. Upon completion of activities in the site-specific Statement of Work, EPA shall invoice the State for its final payment, with the exception of any change orders and claims handled during reconciliation of the SSC.
(k) Reconciliation provision, which states that the SSC remains in effect until the financial settlement of project costs and final reconciliation of response costs (including all change orders, claims, overmatch of cost share, reimbursements, etc.) ensures that both EPA and the State have satisfied the cost share requirement contained in section 104 of CERCLA, as amended. The recipient may direct EPA to return the overmatch or to use the excess cost share payment at one site to meet the cost share obligation at another site in accordance with § 35.6285(d). Reimbursements for any overmatch will be made to the recipient identified in the SSC.
(l) Amendability of the SSC , which provides that:
(1) Formal amendments are required when alterations to CERCLA-funded activities are necessary or when alterations impact the State's assurances pursuant to the National Contingency Plan and CERCLA, as amended. Such amendments must include a Statement of Work for the amendment as described in paragraph (e) of this section; and
(2) Any change(s) in the SSC must be agreed to, in writing, by the signatories, except as provided elsewhere in the SSC, and must be reflected in all response agreements affected by the change(s).
(m) List of support agency Cooperative Agreements that are also in place for the site.
(n) Litigation , which describes EPA's right to bring an action against any party under section 106 of CERCLA to compel cleanup, or for cost recovery under section 107 of CERCLA.
(o) Sanctions for failure to comply with SSC terms , which states that if the signatories fail to comply with the terms of the SSC, EPA may proceed under the provisions of section 104(d)(2) of CERCLA and may seek in the appropriate court of competent jurisdiction to enforce the SSC or to recover any funds advanced or any costs incurred due to a breach of the SSC. Other signatories to the SSC may seek remedies in the appropriate court of competent jurisdiction.
(p) Site access. The State or political subdivision or Indian Tribe is expected to use its own authority to secure access to the site and adjacent properties, as well as all rights-of-way and easements necessary to complete the response actions undertaken pursuant to the SSC.
(q) Final inspection of the remedy. The SSC must include a statement that following completion of the remedial action, the State and EPA shall jointly inspect the project to determine that the remedy is functioning properly and is performing as designed.
(r) Exclusion of third-party benefits , which states that the SSC is intended to benefit only the signatories of the SSC, and extends no benefit or right to any third party not a signatory to the SSC.
(s) Any other provision deemed necessary by all parties to facilitate the response activities covered by the SSC.
(t) State review. The State or Indian Tribe must review and comment on the response actions pursuant to the SSC. Unless otherwise stated in the SSC, all time frames for review must follow those prescribed in the NCP (40 CFR part 300).
(u) Responsible party activities , which states that if a Responsible Party takes over any activities at the site, the SSC will be modified or terminated, as appropriate.
(v) Out-of-State or out-of-an-Indian-Tribal-area-of-Indian-country transfers of CERCLA waste , which states that, unless otherwise provided for by EPA or a political subdivision, the State or Indian Tribe must provide the notification requirements described in § 35.6120.
§ 35.6815   Administrative requirements.
In addition to the requirements specified in § 35.6805, the State and/or political subdivision must comply with the following:
(a) Financial administration. The State and/or political subdivision must comply with the following requirements regarding financial administration:
(1) Payment. The State may pay for its share of the costs of the response activities in cash or credit. As appropriate, specific credit provisions should be included in the SSC consistent with the requirements described in § 35.6285(c). The State may not pay for its cost share using in-kind services, unless the State has entered into a support agency Cooperative Agreement with EPA. The use of the support agency Cooperative Agreement as a vehicle for providing cost share must be documented in the SSC. If the political subdivision agrees to provide all or part of the State's cost share pursuant to a political subdivision-lead Cooperative Agreement, the political subdivision may pay for those costs in cash or in-kind services under that agreement. The use of a political subdivision-lead Cooperative Agreement as a vehicle for providing cost share must also be documented in the SSC. The specific payment terms must be documented in the SSC pursuant to § 35.6805.
(2) Collection of amounts due. The State and/or political subdivision must comply with the requirements described in 2 CFR 200.346 regarding collection of amounts due.
(3) Failure to comply with negotiated payment terms. Failure to comply with negotiated payment terms may be construed as default by the State on its required assurances, even if the political subdivision is responsible for providing all or part of the cost share. ( See § 35.6805(i)(5).)
(b) Personal property. The State, Indian Tribe, or political subdivision is required to accept title. The following requirements apply to equipment used as all or part of the remedy:
(1) Fixed in-place equipment. EPA no longer has an interest in fixed in-place equipment once the equipment is installed.
(2) Equipment that is an integral part of services to individuals. EPA no longer has an interest in equipment that is an integral part of services to individuals, such as pipes, lines, or pumps providing hookups for homeowners on an existing water distribution system, once EPA certifies that the remedy is operational and functional.
(c) Reports. The State and/or political subdivision or Indian Tribe must comply with the following requirements regarding reports:
(1) EPA-lead. The nature and frequency of reports between EPA and the State or Indian Tribe will be specified in the SSC.
(2) Political subdivision-lead. The political subdivision must submit to the State a copy of all reports which the political subdivision is required to submit to EPA in accordance with the requirements of its Cooperative Agreement. ( See § 35.6650 for requirements regarding progress reports.)
(d) Records. The State and political subdivision or Indian Tribe must maintain records on a site-specific basis. The State and political subdivision or Indian Tribe must comply with the requirements regarding record retention described in § 35.6705 and the requirements regarding record access described in § 35.6710.
§ 35.6820   Conclusion of the SSC.
(a) In order to conclude the SSC, the signatories must:
(1) Satisfactorily complete the response activities at the site and make all payments based upon project costs determined in § 35.6805(j);
(2) Produce a final accounting of all project costs, including change orders and outstanding contractor claims;
(3) Submit all State cost share payments to EPA ( See § 35.6805(i)(5));
(4) Assume responsibility for all future operation and maintenance as required by CERCLA section 104(c) and addressed in 40 CFR 300.510 (c)(1) of the NCP, and if applicable, accept transfer of any Federal interest in real property ( See § 35.6805(i)(4)).
(b) After the administrative conclusion of the Superfund State Contract, EPA may monitor the signatory's compliance with assurances to provide all future operation and maintenance as required by CERCLA section 104(c) and addressed in 40 CFR 300.510(c)(1) of the NCP.
§ 35.9000   Applicability.
This subpart codifies policies and procedures for financial assistance awarded by the EPA to State, interstate, and regional water pollution control agencies and entities and other eligible agencies, institutions, organizations, and individuals for pollution abatement and control programs under the National Estuary Program (NEP). These provisions supplement the EPA general assistance regulations in 2 CFR parts 200 and 1500.
§ 35.9005   Purpose.
Section 320(g) of the Clean Water Act (CWA) authorizes assistance to eligible States, agencies, entities, institutions, organizations, and individuals for developing a comprehensive conservation and management plan (CCMP) for an estuary.
§ 35.9010   Definitions.
Aggregate costs. The total cost of all research, surveys, studies, modeling, and other technical work completed by a Management Conference during a fiscal year to develop a Comprehensive Conservation and Management Plan for the estuary.
Annual work plan. The plan, developed by the Management Conference each year, which documents projects to be undertaken during the upcoming year. The Annual Work Plan is developed within budgetary targets provided by EPA.
Five-Year State/EPA Conference Agreement. Agreement negotiated among the States represented in a Management Conference and the EPA shortly after the Management Conference is convened. The agreement identifies milestones to be achieved during the term of the Management Conference.
Management Conference. A Management Conference convened by the Administrator under Section 320 of the CWA for an estuary in the NEP.
National Program Assistance Agreements. Assistance Agreements approved by the EPA Assistant Administrator for Water for work undertaken to accomplish broad NEP goals and objectives.
Work Program. The Scope of Work of an assistance application, which identifies how and when the applicant will use funds to produce specific outputs.
§ 35.9015   Summary of annual process.
(a) EPA considers various factors to allocate among the Management Conferences the funds requested in the President's budget for the NEP. Each year, the Director of the Office of Marine and Estuarine Protection issues budgetary targets for the NEP for each Management Conference. These targets are based upon negotiated Five-Year State/EPA Conference Agreements.
(b) Using the budgetary targets provided by EPA, each Management Conference develops Annual Work Plans describing the work to be completed during the year and identifies individual projects to be funded for the completion of such work. Each applicant having a scope of work approved by the Management Conference completes a standard EPA application, including a proposed work program. After the applicant submits an application, the Regional Administrator reviews it and, if it meets applicable requirements, approves the application and agrees to make an award when funds are available. The Regional Administrator awards assistance from funds appropriated by Congress for that purpose.
(c) The recipient conducts activities according to the approved application and assistance award. The Regional Administrator evaluates recipient performance to ensure compliance with all conditions of the assistance award.
(d) The Regional Administrator may use funds not awarded to an applicant to supplement awards to other recipients who submit a scope of work approved by the management conference for NEP funds.
(e) The EPA Assistant Administrator for Water may approve National Program awards as provided in § 35.9070.
§ 35.9020   Planning targets.
The EPA Assistant Administrator for Water develops planning targets each year to help each Management Conference develop an Annual Work Plan. These targets are broad budgetary goals for total expenditures by each estuary program and are directly related to the activities that are to be carried out by each Management Conference in that year as specified in the Five-Year State/EPA Conference Agreement. The planning targets also are based on the Director's evaluation of the ability of each Management Conference to use appropriated funds effectively.
§ 35.9030   Work program.
The work program is part of the application for financial assistance and becomes part of the award document. It is part of the basis for an award decision and the basis for management and evaluation of performance under an assistance award. The work program must specify the level of effort and amount and source of funding estimated to be needed for each identified activity, the outputs committed for each activity, and the schedule for delivery of outputs.
§ 35.9035   Budget period.
An applicant may choose its budget period in consultation with and subject to the approval of the Regional Administrator.
§ 35.9040   Application for assistance.
Each applicant should submit a complete application at least 60 days before the beginning of the budget period. In addition to meeting applicable requirements contained in 2 CFR parts 200 and 1500, a complete application must contain a discussion of performance to date under an existing award, the proposed work program, and a list of all applicable EPA-approved State strategies and program plans, with a statement certifying that the proposed work program is consistent with these elements. The annual workplan developed and approved by the management conference each fiscal year must demonstrate that non-Federal sources provide at least 25 percent of the aggregate costs of research, surveys, studies, modeling, and other technical work necessary for the development of a CCMP for the estuary. Each application must contain a copy of the Annual Work Plan as specified in § 35.9065(c) (2) and (3) for the current Federal fiscal year. The funding table in the workplan must demonstrate that the 25 percent match requirements is being met, and the workplan table of project status must show the sources of funds supporting each project.
§ 35.9045   EPA action on application.
The Regional Administrator will review each completed application and should approve, conditionally approve, or disapprove the application within 60 days of receipt. When funds are available, the Regional Administrator will award assistance based on an approved or conditionally approved application. For a continuation award made after the beginning of the approved budget period, EPA will reimburse the applicant for allowable costs incurred from the beginning of the budget period, provided that such costs are contained in the approved application and that the application was submitted before the expiration of the prior budget period.
(a) Approval. The Regional Administrator will approve the application only if it satisfies the requirements of CWA section 320; the terms, conditions, and limitations of this subpart; and the applicable provisions of 2 CFR parts 200 and 1500, and other EPA assistance regulations. The Regional Administrator must also determine that the proposed outputs are consistent with EPA guidance or otherwise demonstrated to be necessary and appropriate; and that achievement of the proposed outputs is feasible, considering the applicant's past performance, program authority, organization, resources, and procedures.
(b) Conditional approval. The Regional Administrator may conditionally approve the application after consulting with the applicant if only minor changes are required. The award will include the conditions the applicant must meet to secure final approval and the date by which those conditions must be met.
(c) Disapproval. If the application cannot be approved or conditionally approved, the Regional Administrator will negotiate with the applicant to change the output commitments, reduce the assistance amount, or make any other changes necessary for approval. If negotiation fails, the Regional Administrator will disapprove the application in writing.
§ 35.9050   Assistance amount.
(a) Determining the assistant amount. In determining the amount of assistance to an applicant, the Regional Administrator will consider the Management Conference planning target, the extent to which the applicant's Work Program is consistent with EPA guidance, and the anticipated cost of the applicant's program relative to the proposed outputs.
(b) Reduction of assistance amount. If the Regional Administrator determines that the proposed outputs do not justify the level of funding requested, he will reduce the assistance amount. If the evaluation indicates that the proposed outputs are not consistent with the priorities contained in EPA guidance, the Regional Administrator may reduce the assistance amount.
§ 35.9055   Evaluation of recipient performance.
The Regional Administrator will oversee each recipient's performance under an assistance agreement. In consultation with the applicant, the Regional Administrator will develop a process for evaluating the recipient's performance. The Regional Administrator will include the schedule for evaluation in the assistance agreement and will evaluate recipient performance and progress toward completing the outputs in the approved work program according to the schedule. The Regional Administrator will provide the evaluation findings to the recipient and will include these findings in the official assistance file. If the evaluation reveals that the recipient is not achieving one or more of the conditions of the assistance agreement, the Regional Administrator will attempt to resolve the situation through negotiation. If agreement is not reached, the Regional Administrator may impose sanctions under the applicable provisions of 2 CFR parts 200 and 1500.
§ 35.9060   Maximum Federal share.
The Regional Administrator may provide up to 100 percent of the approved work program costs for a particular application provided that non-Federal sources provide at least 25 percent of the aggregate costs of research, surveys, studies, modeling, and other technical work necessary for the development of a comprehensive conservation and management plan for the estuary as specified in the estuary Annual Work Plan for each fiscal year.
§ 35.9065   Limitations.
(a) Management conferences. The Regional Administrator will not award funds pursuant to CWA section 320(g) to any applicant unless and until the scope of work and overall budget have been approved by the Management Conference of the estuary for which the work is proposed.
(b) Elements of annual workplans. Annual Work Plans to be prepared by estuary Management Conferences must be reviewed by the Regional Administrator before final ratification by the Management Conference and must include the following elements:
(1) Introduction. A discussion of achievements in the estuary, a summary of activities undertaken in the past year to further each of the seven purposes of a Management Conference specified in section 320(b) of the CWA, the major emphases for activity in the upcoming year, and a schedule of milestones to be reached during the year.
(2) Funding sources. A table of fund sources for activities in the new year, including a description of the sources and types (e.g., in-kind contributions to be performed by the applicant) of funds comprising the contribution by applicants or third parties, and the source and type of any other non-Federal funds or contributions.
(3) Projects. A description of each project to be undertaken, a summary table of project status listing all activities, the responsible organization or individual, the products expected from each project, approximate schedules, budgets, and the source and type of the non-Federal 25 percent minimum cost share of the aggregate costs of research, surveys, studies, modeling, and other technical work necessary for the development of a comprehensive conservation and management plan for an estuary.
§ 35.9070   National program assistance agreements.
The Assistant Administrator for Water may approve the award of NEP funds for work that has broad applicability to estuaries of national significance. These awards shall be deemed to be consistent with Annual Work Plans and Five-Year State/EPA Conference Agreements approved by individual management conferences. The amount of a national program award shall not exceed 75 percent of the approved work program costs provided the non-Federal share of such costs is provided from non-Federal sources.
§ 35.10000   Purpose.
This part implements a Federal credit assistance program for water infrastructure projects.