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C. Administrative, engineering and legal activities associated with the establishment of special departments, agencies, commissions, regions, districts or other units of government.

d. Approval, preparation, issuance and sale of bonds or other forms of indebtedness required to finance the project and the interest on them.

e. The costs of replacing, through reconstruction or substitution, a treatment works that was assisted under the Federal Water Pollution Control Act of 1956 (Pub. L. 84660), or its amendments, and that fails to meet its project performance standards. This provision applies to failures that occur either before or after the initiation of operation. This provision does not apply to an innovative and alternative treatment works eligible for funding under $ 35.2032(c) or a treatment works that fails at the end of its design life.

f. Personal injury compensation or damages arising out of the project.

g. Fines and penalties due to violations of, or failure to comply with, Federal, State or local laws, regulations or procedures.

h. Costs outside the scope of the approved project.

i. Costs for which grant payment has been or will be received from another Federal agency.

j. Costs of treatment works for control of pollutant discharges from a separate storm sewer system.

k. The cost of treatment works that would provide capacity for new habitation or other establishments to be located on environmentally sensitive land such as wetlands or floodplains.

1. The costs of preparing a corrective action report required by 8 35.2218(c). (49 FR 6234, Feb. 17, 1984, as amended at 50 FR 45896, Nov. 4, 1985)

4. The estimated and final allowance will be determined in accordance with this Appendix and Tables 1 and 2. Table 2 is to be used in the event that the grantee received a grant for facilities planning. The amount of the allowance is computed by applying the resulting allowance percentage to the initial allowable building cost.

5. The initial allowable building cost is the initial allowable cost of erecting, altering, remodeling, improving, or extending a treatment works, whether accomplished through subagreement or force account. Specifically, the initial allowable building cost is the allowable cost of the following:

a. The initial award amount of all prime subagreements for building the project.

b. The initial amounts approved for force account work performed in lieu of awarding a subagreement for building the project.

c. The purchase price of eligible real property.

6. The estimated allowance is to be based on the estimate of the initial allowable building cost.

7. The final allowance will be determined one time only for each project, based on the initial allowable building cost, and will not be adjusted for subsequent cost increases or decreases.

8. For a Step 3 project, the grantee may request payment of 50 percent of the Federal share of the estimated allowance immediately after grant award. Final payment of the Federal share of the allowance may be requested in the first payment after the grantee has awarded all prime subagreements for building the project, received the Regional Administrator's approval for force account work, and completed the acquisition of all eligible real property.

9. For a Step 2+3 project, if the grantee has not received a grant for facilities planning, the grantee may request payment of 30 percent of the Federal share of the estimated allowance immediately after the grant award. Half of the remaining estimated allowance may be requested when design of the project is 50 percent complete. If the grantee has received a grant for facilities planning, the grantee may request half of the Federal share of the estimated allowance when design of the project is 50 percent complete. Final payment of the Federal share of the allowance may be requested in the first payment after the grantee has awarded all prime subagreements for building the project, received the Regional Administrator's approval for force account work, and completed the acquisition of all eligible real property.

10. The allowance does not include architect or engineering services provided during the building of the project, e.g., reviewing bids, checking shop drawings, reviewing change orders, making periodic visits to job

APPENDIX B-ALLOWANCE FOR FACILITIES PLANNING AND DESIGN

1. This Appendix provides the method EPA will use to determine both the estimated and the final allowance under $ 35.2025 for facilities planning and design. The Step 2+3 and Step 3 grant agreement will include an estimate of the allowance.

2. The Federal share of the allowance is determined by applying the applicable grant percentage in 35.2152 to the allowance.

3. The allowance is not intended to reimburse the grantee for costs actually incurred for facilities planning or design. Rather, the allowance is intended to assist in defraying those costs. Under this procedure, questions of equity (i.e., reimbursement on a dollarfor-dollar basis) will not be appropriate.

*Interpolate between values.

TABLE 2—ALLOWANCE FOR DESIGN ONLY

sites, etc. Architect or engineering services during the building of the project are allowable costs subject to this regulation and 40 CFR Part 33.

11. The State will determine the amount and conditions of any advance under $ 35.2025(b), not to exceed the Federal share of the estimated allowance.

12. EPA will reduce the Federal share of the allowance by the amount of any advances the grantee received under $ 35.2025(b).

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TABLE 1-ALLOWANCE FOR FACILITIES

PLANNING AND DESIGN

$100,000 or less 120,000.. 150,000.. 175,000. 200,000. 250.000. 300,000. 350,000. 400,000. 500,000. 600,000. 700,000. 800,000 900,000. 1,000,000 1,200,000 1,500,000 1,750,000 2,000,000 2,500,000 3,000,000 3,500,000 4,000,000 5,000,000 6,000,000 7,000,000 8,000,000 9,000,000 10,000,000 12,000,000 15,000,000 17,500,000 20,000,000. 25,000,000 30,000,000 35,000,000 40,000,000 50,000,000 60,000,000 70,000,000 80,000,000 90,000,000 100,000,000 120,000,000 150,000,000 175,000,000 200,000,000

8.5683 8.3808 8.1570 8.0059 7.8772 7.6668 7.4991 7.3602 7 2419 7.0485 6.8943 6.7666 6.6578 6.5634 6.4300 6.3383 6.1690 6.0547 5.9574 5.7963 5.6714 5.5664 5.4769 5.3306 5.2140 5.1174 5.0352 4.9637 4.9007 4.7935 4.6655 4.5790 4.5054 4.3851 4.2892 4.2097 4.1421 4.0314 3.9432 3.8702 3.8080 3.7540 3.7063 3.6252 3.5284 3.4630 3.4074

NOTE: The allowance does not reimburse for costs in curred. Accordingly, the allowance Tables shall not be used to determine the compensation for facilities planning or design services. The compensation for facilities planning or design services should be based upon the nature, scope and complexity of the services required by the community.

'Interpolate between values.

Subpart J-Construction Grants Program Delegation to States

Building cost

Allowance as a
percentage of
building cost*

$100,000 or less
120,000..
150,000..
175,000..
200,000..
250,000.
300,000.
350,000..
400,000.
500,000..
600,000.
700,000.
800,000.
900,000..
1,000,000
1,200,000
1,500,000
1,750,000
2,000,000
2,500,000
3,000,000
3,500,000
4,000,000
5,000,000
6,000,000
7,000,000
8,000,000
9,000,000
10,000,000
12,000,000
15,000,000
17,500,000
20,000,000
25,000,000
30,000,000
35,000,000
40,000,000
50,000,000
60,000,000
70,000,000
80,000,000
90,000,000
100,000,000
120,000,000
150,000,000
175,000,000
200,000,000.

14.4945 14.1146 13.6631 13.3597 13.1023 12.6832 12.3507 12.0764 11.8438 11.4649 11.1644 10.9165 10.7062 10.5240 10.3637 10.0920 9.7692 9.5523 9.3682 9.0686 8.8309 8.6348 8.4684 8.1975 7.9827 7.8054 7.6550 7.5248 7.4101 7.2159 6.9851 6.8300 6.6984 6.4841 6.3142 6.1739 6.0550 5.8613 5.7077 5.5809 5.4734 5.3803 5.2983 5.1594 4.9944 4.8835 4.7894

NOTE: The allowance does not reimburse for costs incurred. Accordingly, the allowance Tables shall not be used to determine the compensation for facilities planning or design services. The compensation for facilities planning or design services should be based upon the nature, scope and complexity of the services required by the community.

AUTHORITY: Sec. 205(g) of the Clean Water Act, as amended, 33 U.S.C. 1251 et seq.

SOURCE: 48 FR 37818, Aug. 19, 1983, unless otherwise noted.

tive, fiscal, and program controls to guard against fraud, misuse, and mismanagement of public funds. Overview will also include review of the State management process to ensure it is efficient, effective and assures timely State reviews.

8 35.3000 Purpose.

This regulation establishes policies and procedures for the development, management, and EPA overview of State administration of the wastewater treatment works construction grants program under section 205(g) of the Clean Water Act, as amended. The delegation agreement between EPA and the State is a precondition for construction management assistance under section 205(g). Program requirements for other assistance agreements authorized by section 205(g) for activities under sections 402 and 404 and section 208(b)(4) are provided in Part 130. Administration of all section 205(g) assistance agreements follows the procedures established in Subpart A of this part. 8 35.3005 Policy.

(a) EPA's policy is to delegate management of the wastewater treatment works construction grant program to the maximum extent possible consistent with the objectives of the Act, prudent fiscal management, and EPA's overall national responsibility for the program. The policy is premised on an on-going partnership between EPA and the States that includes consultation with the States in formulation of policy and guidance by EPA. EPA expects States to undertake full delegation of all project level activities, including preliminary determinations of non-delegable requirements. The objective of delegation is to eliminate duplication of Federal and State effort in the management of the construction grant program, to increase State participation in the construction grant program, and to improve operating efficiency.

(b) Program delegation is to be accomplished through a formal delegation agreement between the Regional Administrator and the State. The delegation agreement will specify the functions which the State will perform and procedures for State certification to EPA.

(c) EPA will overview the performance of the program under delegation to ensure that progress is being made toward meeting the construction grant program objectives and that the State is continuing to employ administra

8 35.3010 Delegation agreement.

(a) Before execution of the delegation agreement, the Regional Administrator must determine that the unit of the State agency designated to implement the agreement is capable of carrying out the delegated functions. The Regional Administrator will evaluate those aspects of the unit which directly affect the State's capability to implement the agreement.

(b) In the delegation agreement, the State agency will assure the Regional Administrator that it will execute its responsibilities under the delegation agreement in conformance with all applicable Federal laws, regulations, orders, and policies.

(c) The delegation agreement will:

(1) Designate the organizational unit within the State responsible for the implementation of the delegation agreement;

(2) List the functions delegated and functions to be delegated, with a schedule for their assumption by the State;

(3) Identify procedures to be followed and records to be kept by the State and EPA in carrying out each delegated function;

(4) Identify the staffing, hiring, training, and funding necessary to carry out the delegated functions;

(5) Estimate program costs by year for the term of the delegation agreement;

(6) Identify an accounting system, acceptable to the Regional Administrator, which will properly identify and relate State costs to the conduct of delegated functions; and

(7) Identify the form and content of the system for EPA overview of State performance consistent with the requirements in $ 35.3025 of this subpart, including the frequency, method, and extent of monitoring, evaluation, and reporting.

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8 35.3015 Extent of State responsibilities.

(a) Except as provided in paragraph (c) of this section, the Regional Administrator may delegate to the State agency authority to review and certify all construction grant documents required before and after grant award and to perform all construction grant review and management activities necessary to administer the construction grants program.

(b) The State may also act as the manager of waste treatment construction grant projects for small communities. The State, with the approval of the community, may serve as the community contracting agent and undertake responsibilities such as negotiating subagreements, providing technical assistance, and assisting the community in exercising its resident engineering responsibility. In this capacity, the State is in the same position as a private entity and cannot require a small community to hold the State harmless from negligent acts or omissions. The State may also execute an agreement with any organization within the State government, other than the State agency, which is capable of performing these services. The terms of the agreement to provide these services to small communities must be approved by the Regional Administrator before execution of the agreement.

(c) The Regional Administrator shall retain overall responsibility for the construction grant program and exercise direct authority for the following:

(1) Construction grant assistance awards, grant amendments, payments, and terminations;

(2) Projects where an overriding Federal interest requires greater Fed. eral involvement;

(3) Final determinations under Federal statutes and Executive Orders (e.g., the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.), except for sections 201, 203, 204, and 212 of the Clean Water Act;

(4) Final resolution of construction grant audit exceptions; and

(5) Procurement determinations listed under 40 CFR 33.001(g). 8 35.3020 Certification procedures.

(a) The State will furnish a written certification to the Regional Administrator for each construction grant project application submitted to EPA for award. The certification must state that all Federal requirements, within the scope of authority delegated to the State under the delegation agreement, have been met. This certification must be supported by documentation specified in the delegation agreement. The documentation must be made available to the Regional Administrator upon request.

(b) Certification that a construction grant project application complies with all delegable pre-award requirements consists of certification of compliance with the following sections of Subpart I of this part: $ 35.2030 (Facilities planning); $ 35.2040 (a) and (b) (Grant application); $ 35.2042 (Review of grant applications); and $$ 35.2100 (Limitations on award) through and including 35.2125, except for $ 35.2101 (Advanced treatment reviews for projects with incremental capital advanced treatment costs of over $3 million), $35.2112 (Marine waiver discharge applicants), and g 35.2113 (final decisions under the National Environmental Policy Act).

8 35.3025 Overview of State performance

under delegation. The Regional Administrator will review the performance of a delegated State through an annual overview program, developed in accordance with procedures agreed to in the delegation agreement ($ 35.3010(c)(7)). The pur

pose of the overview program is to the plan for overview agreed to in adensure that both the delegated State vance, and should be appropriate to and EPA efficiently and effectively the delegation situation existing beexecute the fiscal and program respon- tween the Region and State. It should siblilities under the Clean Water Act take into account past performance of and related legislation. The overview the State and the extent of State exprogram is comprised of three steps:

perience in administering the delegat(a) Developing a plan for overview.

ed functions. An on-site evaluation will The plan for overview specifies priori

occur at least annually and will cover, ty objectives, key measures of per

at a minimum, negotiated annual outformance, and monitoring and evalua

puts, performance expected in the deltion activities (including State report

egation agreement and, where applicaing to EPA) for the upcoming year. EPA and the State should agree to a

ble, evaluation of performance under

the assistance agreement as provided plan for overview in advance of the upcoming year.

in 40 CFR 35.150. The evaluation will (1) Priority objectives will include

cover performance of both the Region both program and management objec

and the State. Upon completion of the tives. In developing the State priority

evaluation, the delegation agreement objectives, the national priorities iden

may be revised, if necessary, to reflect tified by the Administrator on

changes resulting from the evaluation.

an annual basis must, at a minimum, be

The Regional Administrator may teraddressed and applied as appropriate

minate or annul any section 205(g) fito each State. In addition, the Region

nancial assistance for cause in accordal Administrator and the State may

ance with the procedures in Subpart identify other objectives unique to the

A, $ 35.150, and Part 30. situation in the State.

(Approved by the Office of Management (2) For each priority objective, the

and Budget under control number 2000plan for overview will specify key 0417) measures of performance (both quantitative and qualitative), identify 8 35.3030 Right of review of State deci. which measures will require the nego- sion. tiation of outputs, and enumerate the

(a) Any construction grant applicaspecific monitoring and evaluation ac

tion or grantee who has been adversetivities and methods planned for the

ly affected by a State's action or omisupcoming year.

sion may request Regional review of (b) Negotiating annual outputs. An

such action or omission, but must first nually, the Region and delegated

submit a petition for review to the State will negotiate and agree upon

State agency that made the initial deoutputs, where required by the plan

cision. The State agency will make a for overview, to cover priority objec

final decision in accordance with protives for the upcoming year. This negotiation should also result in develop

cedures set forth in the delegation ment of the work program required

agreement. The State must provide, in for the section 205(g) assistance appli

writing, normally within 45 days of cation, pursuant to Subpart A, $ 35.130

the date it receives the petition, the of this part. Where the assistance ap

basis for its decision regarding the displication covers a budget period puted action or omission. The final beyond the annual overview program

State decision must be labeled as such period, the assistance award may be

and, if adverse to the applicant or made for the full budget period, con

grantee, must include notice of the tingent on future negotiation of right to request Regional review of the annual outputs under this paragraph

State decision under this section. A for subsequent years of the budget State's failure to address the disputed period.

action or omission in a timely fashion, (c) Monitoring and evaluating pro- or in writing, will not preclude Regiongram performance. Monitoring and al review. evaluation of program performance (b) Requests for Regional review (including State reporting) is based on must include:

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