35.10020 Eligible activities. 35.10025 Limitations.

35.10030 Grant management. 35.10035 Procurement under general assistance agreements.

AUTHORITY: 42 U.S.C. 4368b.

§35.001 Applicability.

This part codifies policies and procedures for financial assistance awarded by the Environmental Protection Agency to State, interstate, and local agencies for pollution abatement and control programs. These provisions supplement the EPA general assistance regulations in 40 CFR part 30.

[47 FR 44954, Oct. 12, 1982]

Subpart A-Financial Assistance for Continuing Environmental Programs

AUTHORITY: Secs. 105 and 301(a) of the Clean Air Act, as amended (42 U.S.C. 7405 and 7601(a)); Secs. 106, 205(g), 205(j), 208, 319, 501(a), and 518 of the Clean Water Act, as amended (33 U.S.C. 1256, 1285(g), 1285(j), 1288, 1361(a) and 1377); secs. 1443, 1450, and 1451 of the Safe Drinking Water Act (42 U.S.C. 300j2, 300j-9 and 300j-11); secs. 2002(a) and 3011 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6912(a), 6931, 6947, and 6949); and secs. 4, 23, and 25(a) of the Federal Insecticide, Fungicide and Rodenticide Act, as amended (7 U.S.C. 136(b), 136(u) and 136w(a)).

SOURCE: 47 FR 44954, Oct. 12, 1982, unless otherwise noted.

$35.100 Purpose.

This subpart establishes in §§ 35.100 through 35.199 uniform administrative requirements and procedures for financial assistance to State, interstate, and local agencies for continuing environmental programs. Sections 35.200 through 35.899 establish the assistance requirements unique to each program and cross reference regulations containing substantive program requirements.

§ 35.105 Definitions.

Allotment. An amount representing a State's share of funds requested in the President's budget or appropriated by

Congress for an environmental program, as EPA determines after considering any factors indicated by this regulation. The allotment is not an entitlement but rather the objective basis for determining the range for a State's planning target.

Continuation award. Any assistance award after the first award to a State, interstate, or local agency for a continuing environmental program.

Those

Continuing environmental programs. pollution control programs which will not be completed within a definable time period.

Eligible Indian Tribe means:

(1) For purposes of the Clean Water Act, any federally recognized Indian Tribe that meets the requirements set forth at 40 CFR 130.6(d); and

(2) For purposes of the Clean Air Act, any federally recognized Indian Tribe that meets the requirements set forth at § 35.220.

Federal Indian reservation means for purposes of the Clean Water Act or the Clean Air Act, all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-ofway running through the reservation.

Indian Tribe means:

(1) Within the context of the Public Water System Supervision and Underground Water Source Protection grants, any Indian Tribe having a federally recognized governing body carrying out substantial governmental duties and powers over a defined area.

(2) For purposes of the Clean Water Act, any Indian Tribe, band, group, or community recognized by the Secretary of the Interior and exercising governmental authority over a Federal Indian reservation.

(3) For purposes of the Clean Air Act, any Indian Tribe, band, nation, or other organized group or community, including any Alaskan Native Village, which is federally recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

Output. An activity or product which the applicant agrees to complete during the budget period.

Planning target. The amount of Federal financial assistance which the Regional Administrator suggests that an applicant consider in developing its application and work program.

Program element. One of the major groupings of outputs of a continuing environmental program (e.g., administration, enforcement, monitoring).

Recurrent expenditures, except for the purposes of section 105 of the Clean Air Act (See §35.201), means those expenditures associated with the activities of a continuing environmental program. All expenditures, except those for equipment purchases with a unit acquisition cost of $5,000 or more, are considered recurrent unless justified by the applicant as unique and approved as such by the Regional Administrator in the assistance award.

Reserve. A portion of the State's construction grant allotment which the State proposes to set aside to use for construction or permit program management or water quality management planning activities.

State means within the context of Public Water Systems Supervision and Underground Water Source Protection grants or of financial assistance programs under the Clean Water Act, one of the States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, the Trust Territories of the Pacific Islands or an eligible Indian Tribe.

Work program. The document which identifies how and when the applicant will use program funds to produce specific outputs.

[47 FR 44954, Oct. 12, 1982, as amended at 53 FR 37408, Sept. 26, 1988; 54 FR 14357, Apr. 11, 1989; 59 FR 13817, Mar. 23, 1994; 60 FR 371, Jan. 4, 1995; 63 FR 7270, Feb. 12, 1998]

§35.110 Summary of annual process.

(a) EPA considers various factors to allot among the States the funds requested in the President's budget for each financial assistance program, except for those related to construction grants, for which Congress determines the allotments. From its construction grant allotment, the State proposes reserves for State administration and

water quality management planning. The Regional Administrator issues a planning target for each program to each applicant based on the reserves and allotments.

(b) Using the planning target and guidance provided by EPA, each applicant completes a standard EPA application including a proposed work program for each environmental program for which it expects to receive EPA funding. Alternatively, an applicant prepares a consolidated work program to support several individual applications or a single consolidated application. After the applicant submits its 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 its activities according to the approved application and assistance award. The Regional Administrator evaluates recipient performance to assure compliance with all conditions of the assistance award.

(d) Except for funds reserved under section 205 (g) and (j) of the Clean Water Act, the Administrator or Regional Administrator may use funds not awarded or committed to an applicant to supplement awards to other applicants for that program or to support a Federal program required in the absence of an acceptable State program. $35.115 State allotments and reserves. Allotments and reserves provide an objective basis for establishing planning targets and funding levels for work programs. Congress determines the construction grant allotment, from which the State proposes reserves for State administration and water quality management planning. EPA determines the allotments for the other financial assistance programs based on the President's budget request to Congress. The factors and limitations considered for each program are as follows:

(a) Air pollution control allotment (Clean Air Act, section 105): Population, the extent of actual or potential air pollution problems, and the finan

cial need of each agency to be funded with the State's allotment. However, no State shall have made available to it for application an allotment of less than one-half of 1 percent nor more than 10 percent of the annual appropriation for section 105 grants.

(b) Water pollution control allotment including ground-water protection allotments (Clean Water Act, section 106): The extent of the State's water pollution problem. In each fiscal year, the Administrator will reserve a percentage of the total available funds for eligible Indian Tribes,

(c) State administration reserve (Clean Water Act, section 205(g)): Up to four percent of the State's authorized construction grant allotment as determined by Congress or $400,000, whichever is greater.

(d) Water quality management planning reserve (Clean Water Act, section 205(j)(1)): Not less than $100,000 nor more than one percent of the State's construction grant allotment as determined by Congress. However, for Guam, the Virgin Islands, American Samoa, the Trust Territories of the Pacific Islands and the Northern Marina Islands, a reasonable amount shall be reserved for this purpose. Each fiscal year the Administrator may reserve a percentage of the sums appropriated under section 207 for water quality management planning assistance to eligible Indian Tribes,

(e) Public Water System Supervision Allotment (Safe Drinking Water Act, section 1443(a)): The State's population, geographic area, numbers of community and non-community water systems, and other relevant factors. However, no State, except American Samoa, Guam, the Northern Mariana Islands, the Virgin Islands, or the Trust Territory of the Pacific Islands may be allotted less than one percent of the total, except that for fiscal years beginning after fiscal year 1989, to the extent that fiscal year appropriations exceed the amount of fiscal year 1989 appropriations, States shall share in any excess based upon the grant formula in effect for such fiscal years.

(f) Ground-water Quality Protection Reserve (Clean Water Act, section 319(i)): Each fiscal year the Administrator may reserve for eligible Indian Tribes

one-third of one percent of the amount appropriated under section 319(j) for 319 (h) and (i).

(g) Public Water System Supervision allotment (Safe Drinking Water Act, section 1443(a)): Population, geographic area, numbers of community and noncommunity water systems and other relevant factors. All jurisdictions except American Samoa, Guam, the Northern Mariana Islands, the Virgin Islands or an individual eligible Indian Tribe shall be allotted at least one percent. Up to three percent of the Public Water System Supervision funds shall be reserved each year for use on Indian lands.

(h) Underground Water Source Protection allotment (Safe Drinking Water Act, section 1443(b)): Population, geographic area, extent of underground injection practices, and other relevant factors. Up to five percent of the Underground Water Source Protection funds shall be reserved each year for use on Indian lands.

(i) Hazardous waste management allotment (Solid Waste Disposal Act, as amended, section 3011): The extent to which hazardous waste is generated, transported, treated, stored, and disposed of in the State and the extent of exposure of human beings and the environment to such waste, and such other factors as the Administrator deems appropriate.

(j) Pesticide enforcement allotment (Federal Insecticide, Fungicide, and Rodenticide Act, section 23): The State's population, the numbers of pesticide-producing establishments and certified private and commercial applicators, and the number of farms and their acreage.

(k) Pesticide applicator certification and training allotment (Federal Insecticide, Fungicide, and Rodenticide Act, section 23): The number of farms and numbers of private and commercial applicators requiring certification or recertification.

[47 FR 44954, Oct. 12, 1982, as amended at 54 FR 14357, Apr. 11, 1989; 54 FR 40368, Sept. 29, 1989; 57 FR 8074, Mar. 6, 1992; 59 FR 13817, Mar. 23, 1994; 60 FR 371, Jan. 4, 1995]

§ 35.120 Planning targets.

The Regional Administrator develops planning targets to help each applicant

develop a work program. A planning target is the State's reserve or is based on the State's allotment and the Regional Administrator's evaluation of each applicant's ability to use allotted funds effectively.

$35.125 Program guidance.

Program guidance helps State and local agencies establish and maintain effective environmental programs which meet their particular needs and those of the national program. National program managers in Headquarters issue guidance to Regional Administrators, and Regional Administrators issue guidance to applicants.

(a) Headquarters guidance to Regional Administrators. Headquarters guidance is based on the President's annual budget submission to Congress and the statutory and regulatory requirements for each environmental program. The guidance contains a statement of national objectives and priorities, an explanation of the activities required of the regions, and a list of program elements and associated outputs recommended for State and local environmental programs.

(b) Regional guidance to applicants. Regional guidance is based on Headquarters guidance and the Regional Administrator's knowledge of environmental problems in each State in his region and evaluation of each applicant's ability to carry out the program. The guidance contains EPA's objectives and priorities, the applicant's planning target, the program elements EPA uses for budget justification and management, categories of outputs which should be part of the applicant's work program, and special conditions or limitations relevant to the applicant.

§ 35.130 Work program.

The work program is part of the application for financial assistance and is the basis for the management and evaluation of performance under the assistance award. The work program must specify the work years and amount and source of funding estimated to be needed for each program element, the outputs committed to under each program

element, including any outputs required under an authorization or delegation agreement, a schedule for accomplishment of outputs, and an identification of the agency responsible for each of the elements and outputs.

$35.135 Budget period.

An applicant may choose its budget period in consultation with and subject to the approval of the Regional Administrator.

$35.140 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 the requirements contained in part 30, a complete application must contain a discussion of performance to date under the existing award, the proposed work program, and a list of all applicable EPA-approved State strategies, program plans, and delegation or authorization agreements with a statement certifying that the proposed work program is consistent with them.

$35.141 EPA action on application.

The Regional Administrator will review each completed application and should approve, conditionally approve, or disapprove it 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 terms, conditions, and limitations of this subpart, 40 CFR part 30, and relevant statutes and program regulations; if the proposed outputs are consistent with EPA guidance or otherwise demonstrated to be necessary and appropriate; and if achievement of the proposed outputs is feasible, considering the applicant's existing problems, past performance, pro

(b) Conditional approval. The Regional Administrator may conditionally approve the application, after consulting with the applicant, if only minor changes are required. The Regional Administrator will include in the award the conditions which 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, to reduce the assistance amount, or to make any other changes necessary for approval. If negotiation fails, the Regional Administrator will disapprove the application in writing.

§35.143 Assistance amount.

(a) Determining the assistance amount. In determining the amount of assistance to an applicant, the Regional Administrator will consider the State's 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's evaluation of the applicant's work program indicates that the proposed outputs do not justify the level of funding requested, the Regional Administrator 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.

$35.145 Consolidated assistance.

Any applicant eligible to receive and administer funds from more than one assistance program may submit an application for consolidated assistance, following the process described in §35.140. For consolidated assistance, the applicant prepares a single budget and work program covering all programs included in the application. The consolidated budget must identify each assistance program's funds. The consolidated work program must identify