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gram. If the Regional Administrator or State determines that significant interest and desire for a public meeting exist, the Region or State will hold one or more public meetings at least 30 days prior to execution.
Subparts K-L [Reserved)
Subpart M-Grants for Technical
(1) A copy of any written State deci. sion.
(2) A statement of the amount in dispute,
(3) A description of the issues involved, and
(4) A concise statement of the objections to the State decision. The request must be filed by registered mail, return receipt requested, within thirty days of the date of the State decision or within a reasonable time if the State fails to respond in writing to the request for review.
(c) The Region shall determine whether the State's review is comparable to a dispute decision official's (DDO) review pursuant to 40 CFR Part 30, Subpart L. If the State's review is comparable, Regional review of the State's decision will be conducted by the Regional Administrator. If the State's review is not comparable, the DDO will review the State's decision and issue a written decision. Review of either a Regional Administrator or DDO decision may be requested pursuant to Subpart L. (Approved by the Office of Management and Budget under control number 20400095) (50 FR 45896, Nov. 4, 1985)
AUTHORITY: 42 U.S.C. 9617(e); Sec. 9(g). E.O. 12580.
SOURCE: 53 FR 9748, Mar. 24, 1988, unless otherwise noted.
8 35.4000 Authority.
This regulation is issued under section 117(e) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended, 42 U.S.C. 9617(e). 8 35.4005 Purpose.
This regulation codifies policies and procedures for technical assistance grants awarded by EPA to groups of individuals. This regulation establishes the procedures for accepting and evaluating applications, and for awarding and managing technical assistance grants. These provisions supplement the EPA general assistance regulations and procedures at 40 CFR Part 30 and are applicable to all applicants/recipients of technical assistance grants.
8 35.3035 Public participation.
(a) Public participation during the development, review, approval, and substantial revision of the delegation agreement will be in accordance with the requirements of section 101(e) of the Act, Part 25 of this chapter, and this subpart.
(b) The Regional Administrator or the State, as mutually agreed, will make the draft delegation agreement, any proposed substantial amendment to the delegation agreement, and the proposed annual overview program, available to the public for comment, and provide notice of availability, sufficiently in advance ‘of execution to allow for timely comment.
(c) If, based on comments received, the Regional Administrator or State determines that significant interest exists, the State and EPA will consult with interested and affected groups and citizens prior to execution of the delegation agreement, substantial amendment, or annual overview pro
8 35.4010 Definitions.
As used in this regulation, the fol. lowing words and terms shall have the meaning set forth below:
"Affected" means subject to an actual or potential health, economic or environmental threat arising from a release or a threatened release at a fa. cility listed on the National Priorities List (NPL) or proposed for listing under the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) where a response action under CERCLA has begun. Examples of “affected” parties include individuals who live in areas adjacent to NPL facilities, who depend on water sources endangered by releases of hazardous substances at the facility, or whose
economic interests are directly threat- scription of the work to be accomened or harmed.
plished, and any special conditions. “Applicant” means any group of in- "In-kind contribution" means the dividuals that files an appplication for value of a non-cash contribution used a technical assistance grant.
to meet a recipient's matching funds “Application" means a completed requirement in accordance with 40 formal written request for a technical CFR 30.307(b). An in-kind contribuassistance grant that is submitted to tion may consist of charges for equipthe Agency on EPA Form 5700-33– ment or the value of goods and servState and Local Nonconstruction Pro- ices necessary to and directly benefitgram, or to a State on its appropriate ing the EPA-funded project. form.
"Matching funds” means the portion “Award" means the technical assist- of allowable project costs that a recipiance grant agreement signed by both ent contributes toward completing the EPA and the recipient.
technical assistance grant project “Award Official” means the official using non-Federal funds or Federal delegated the authority to sign grant funds if expressly authorized by statagreeraents.
ute. The match may include in-kind as "Budget" means the financial plan well as cash contributions. for the spending of all Federal and “Operable unit” means a response matching funds (including in-kind con- action taken as one part of an overall tributions) for a technical assistance site response. A number of operable grant project as proposed by the appli- units may occur in the course of a site cant, and negotiated with and ap- response. proved by the Award Official.
Party" "Budget period” mea:is the length of (PRP) means any individual(s) or time specified in a grant agreement company(ies) (such as owners, operaduring which the recipient may spend tors, transporters, or generators) poor obligate Federal funds. The budget tentially responsible under sections period may not exceed 3 years. A tech- 106 or 107 of CERCLA for the connical assistance grant project period tamiriation problems at a Supe:fund may be comprised of several budget site. periods.
“Recipient” means any group of in“Cash contribution" means actual dividuals that has been awarded a non-Federal dollars, or Federal dollars technical assistance grant. if expressly authorized by statute to “Recipient's project manager” do so, that a recipient spends for goods means the person legally authorized to and services and real or personal prop- obligate the organization to the terms erty used to satisfy the matching and conditions of EPA's regulations funds requirement.
and the grant agreement, and desig“Contractor" means any party (i.e., nated by the recipient to serve as its technical advisor) to whom a recipient principal contact with EPA. awards a subagreement.
“Response Action" means all activi“EPA” means the Environmental ties undertaken to address the probProtection Agency. Where a State ad- lems created by hazardous substances ministers the Technical Assistance at a National Priorities List site. Grant Program, the term "EPA” may "Start of Response Action" means mean a State agency.
the point in time when there is a guar"Federal facility" means a facility antee or set-aside of funding either by that is owned or operated by a depart- EPA, other Federal agencies, States, ment, agency, or instrumentalit of or PRPs in order to begin response acthe United States.
tivities at a site. The document which “Grant agreement” means the legal reflects the set-aside of, or formally document that transfers money, or guarantees, funding during the coming anything of value, to a recipient to ac- fiscal year, is EPA's annual Superfund complish the purpose of the technical Comprehensive Accomplishments Plan assistance grant project. It specifies (SCAP). budget and project periods, the Feder- "Subagreement" means a written al share of eligible project costs, a de- agreement between the technical as
sistance grant recipient and another party (a contractor other than a public agency) for services or supplies necessary to complete the technical assistance grant project. Subagreements include contracts and subcontracts for personal and professional services or supplies necessary to complete the technical assistance grant project, and agreements with consultants, and purchase orders.
8 35.4015 Administration of the Program.
(a) Upon publication of this regulation, the Agency will begin accepting applications for and awarding technical assistance grants in consultation with th es.
(b) The Technical Assistance Grant Program will be available at an NPL site where a State response action is scheduled to begin or is underway and a CERCLA-funded cooperative or other written agreement exists between the Agency and the State.
(c) States wishing to administer the Technical Assistance Grant Program must inform the appropriate EPA Regional administrator. If a State elects to administer the program, it must do so in conformity with this regulation. Where States administer the program, EPA will have an oversight role.
(d) A State that chooses to administer the Technical Assistance Grant Program will receive technical assistance funds plus administrative costs from the Agency under a cooperative agreement. A State will receive $10,000 for administrative costs for the first technical assistance grant. For each subsequent technical assistance grant, the State will receive an amount equal to 8 percent of the technical assistance grant. Using the criteria established under this regulation, the State may select a qualified recipient and provide assistance in either of two ways:
(1) A State will pass through technical assistance funds to a recipient group by way of a subgrant, and reimburse the recipient group for its expenditures as provided at $ 30.4080 of this regulation. A State that elects this option is also responsible for monitoring the subgrant to ensure that recipients comply with its terms and with 40 CFR Parts 30 and 33; or
(2) If a recipient group agrees, a State will use technical assistance grant funds to obtain the services of a technical advisor and provide those services to a grant recipient in lieu of cash. The recipient group may work closely with the State in advertising, reviewing bids and recommending a technical advisor, and managing the technical advisor. The State will make the final selection of the technical advisor. A State that elects this option becomes directly responsible awarding the technical assistance contracts, submitting financial and progress reports, and for disbursing all technical assistance grant funds in compliance with applicable EPA regulations and requirements. 8 35.4020 Responsibility requirements.
(a) An applicant must meet the minimum administrative and management capability requirements set forth at 40 CFR 30.301. Thus, each applicant must demonstrate that it has established reliable procedures or has plans for establishing reliable procedures for recordkeeping and financial accountability related to the management of the technical assistance grant. These procedures must be in effect before the recipient incurs any costs. If EPA concludes that the applicant is not capable of meeting the responsibility requirements, the application will be rejected.
(b) Each recipient of a technical assistance grant must be incorporated as a non-profit organization for the purpose of addressing the Superfund site for which the grant is provided in order to receive a grant. At the time of award, a recipient must either be incorporated or must demonstrate to EPA that the group has filed the necessary documents for incorporation with the appropriate State agency. No later than the time of the first request for reimbursement for costs incurred, a recipient must submit proof that the group has been incorporated by the State.
8 35.4025 Eligible applicants.
Eligible applicants, except as provided in § 35.4030, are any group of individuals that may be affected by a release or a threatened release at any facility that (a) is listed on the National Priorities List (NPL) under the National Contingency Plan (NCP) is proposed for listing and a response action has begun.
(b) The applicant best represents groups and individuals affected by the site (20 points);
(c) The identification of how the group plans to use the services of a technical advisor throughout the Superfund response action (20 points);
(d) The demonstrated intention and ability of the applicant to inform others in the community of the information provided by the technical advisor (20 points); and
(e) The presence of an actual or potential economic threat or threat of an impaired use or enjoyment of the environment to group members that is caused by the site. This criterion can be met by establishing a demonstrable economic or environmental threat to group members or a reasonable belief that the site poses a substantial economic or environmental threat. (10 points).
& 35.4030 Ineligible applicants.
(a) Groups and organizations which are ineligible to receive or to be represented in groups receiving technical assistance grants are:
(1) Potentially responsible parties (PRPs);
(2) Corporations that are not incorporated for the specific purpose of representing affected individuals at the site;
(3) Academic institutions;
(4) Political subdivisions (e.g., townships and municipalities); and
(5) Groups established and/or sustained by governmental entities (including emergency planning committees and some citizen advisory groups).
(b) This section shall not preclude any individual affected by a Superfund site from participating in a recipient group in his or her capacity as an individual. 8 35.4035 Evaluation criteria.
EPA will award a technical assistance grant only after it has determined that all eligibility and responsibility requirements listed in $$ 35.4020, 35.4025, and 35.4030 are met, and after review of the applicant's qualifications in the narrative section of the grant application. Each applicant will be required to provide information on liow it meets the eligibility criteria in the grant application. If the Agency is administering the technical assistance grant program, the “Applicant Qualifications" section is Part IV of EPA Form 5700.33, “State and Local Nonconstruction Programs.” The following factors will be evaluated and weighted as indicated:
(a) The presence of an actual or potential health threat posed to group members by the site. This criterion can be met by establishing a demonstrable threat to members' health or a reasonable belief that the site poses a substantial threat to their health. (30 points);
8 35.4040 Notification process.
(a) Groups wishing to apply for a technical assistance grant shall first submit a letter of intent to EPA. EPA will respond in writing to a letter of intent.
(b) Upon receipt of the first letter of intent, EPA will undertake certain activities depending on the schedule for work at the site:
(1) If commencement of the remedial investigation or a removal action is not underway or scheduled to begin, EPA will advise the group in writing that grant applications for the site are not yet being accepted. EPA may informally notify other interested groups that it has received a letter of intent; or
(2) If a response action is already underway or scheduled to begin, EPA will conduct one or more of the following activities-mailings, meetings, and public notices—to provide formal notice to other interested parties that a gran for the site soon may be awarded. These formal notification activities will generaily be conducted far enough in advance of the start of the response action to allow time for groups to consolidate, apply for and receive a grant award, and procure a technical advisor before work commences at the site.
nical Assistance Grant Program." Application kits are available from EPA Regional Offices upon request.
Instructions for filing an application with a State will be provided by the State.
8 35.4050 Timing of award.
An award of a technical assistance grant will be made no earlier than the start of the response action. Grants to qualified applicants could be delayed depending upon the availability of funds for the Superfund program.
(c) Other potential applicants will have 30 days to contact the original applicant to form a coalition. If the community groups are unable to form a coalition, they must notify EPA within the 30 days. EPA will then accept separate applications rom all interested groups for an additional 30day period. EPA may consider written requests for extensions of this time. If there is a qualified applicant, a grant will be awarded from among the competing applications based on the evaluation criteria described in § 35.4035 of this regulation. The schedule for response activities at a site will not be affected by the technical assistance grant application process.
(d) A formal grant application from a group which has not first submitted a letter of intent to EPA will be considered a letter of intent for the purposes of this subsection. 8 35.4045 Submission of application.
(a) After an applicant submits a letter of intent, it must submit to the Agency its request for a technical assistance grant on EPA Form 5700-33, “State and Local Nonconstruction Programs." Each applicant must submit the original and two copies of the application to the Agency. At least one application must have the original signature (i.e., not a photocopy of the signature) of the Recipient's Project Manager. If the State is administering the program, applicant must submit a request for a technical assistance grant a State on the appropriate State form;
(b) An applicant must submit a proposed budget clearly showing the proposed expenditure of funds, how it will provide the cash and/or in-kind contributions to meet the "match” requirement, and how the funds and other resources, including the “match,” will be used to complete the technical assistance grant project;
(c) An applicant must submit to the Agency or the State on the appropriate form a short narrative justification to show compliance with the evaluation criteria in $ 35.4035. Instructions for filing an application with the Agency are contained in the application kit and explained in EPA's “Citizens' Guidance Manual for the Tech
8 35.4055 Ineligible activities.
(a) The following activities are ineligible for assistance under this program:
(1) Litigation or underwriting legal actions such as paying for attorney fees or paying for the time of the technical advisor to assist an attorney in preparing a legal action or preparing for and serving as an expert witness at any legal proceeding;
(2) Political activity and lobbying in accordance with 40 CFR 30.601 which incorporates OMB Circular A-122;
(3) Other activities inconsistent with the cost principles stated in OMB Circular A-122, “Cost Principles for NonProfit Organizations";
(4) Tuition or other expenses for recipient group members or technical advisors to attend training, seminars or courses;
(5) Any activities or expenditures for recipient group members' travel;
(6) Generation of new primary data such as well drilling and testing, including split sampling; and (7) Reopening final Agency decisions
conducting disputes with the Agency.
§ 35.4060 Eligible activities.
Technical assistance grants may be used to obtain technical assistance in interpreting information with regard to the nature of the hazard, remedial investigation and feasibility study, record of decision, remedial design, selection and construction of remedial action, operation and maintenance, or a significant removal action at a facility that is (a) listed on the NPL or (b) proposed for listing and at which a re