(5) Financial burden. Whether the municipality can demonstrate that the construction of sewage treatment works involves an extraordinary and excessive financial burden in relation to the municipality's economic resources.

(6) Enforcement recommendations. Whether the construction of the sewage treatment plant is recommended or required by Federal or State water pollution control enforcement authorities.

(c) The public benefits to be derived by the construction of the project;

(d) The related projects requiring completion before full benefit can be derived from the project for which the application is made and the degree to which the completion of the related projects in the near future is assured;

(e) The feasibility of utilizing available facilities; and,

(f) The probability that the project will be constructed and put into operation within a reasonable time. § 35.835 Criteria for award.

In addition to the evaluation required pursuant to § 35.830, the Regional Administrator shall determine whether the following criteria are met, prior to the award of the grant:

§ 35.835-1 State plan and priority.

The project must be in conformity with the State water pollution control plan submitted pursuant to the provisions of section 7 of the Federal Water Pollution Control Act and must be certified by the State Water Pollution Control Agency as entitled to priority over other eligible projects on the basis of financial as well as water pollution control needs; except that in the case of additional grants as provided for in the case of impact grants (see § 35.815-2(b)) and for conformity with metropolitan plans (see § 35.820–1(c)), no additional State certification of priority shall be required for the project receiving such an additional grant.

§ 35.835-2 Basin control.

No grant may be awarded unless the Regional Administrator determines, based on information furnished to him by the appropriate State or interstate agency having jurisdictional responsibilities for the area of concern, that the project is included in an effective current basinwide plan for pollution abatement in accordance with applicable water

No grant may be awarded unless the Regional Administrator determines that the project is included in an effective metropolitan or regional plan developed or in the process of development, and certified by the Governor or his designee as being the official pollution abatement plan developed or in the process of development for the metropolitan area or region within which the project is proposed to be constructed. In the case of an interstate metropolitan or regional area, the plan shall be certified by the respective Governors or their designees. Such plan must meet the requirements set forth in § 35.105-2.

§ 35.835-4 Adequacy of treatment.

No grant may be awarded unless the applicant provides assurance satisfactory to the Regional Administrator that the proposed project is designed to result in an operable treatment works, or part thereof, which will adequately treat sewage or industrial wastes of a liquid nature in order to abate, control, or prevent water pollution. Such assurance must certify that the treatment works or part thereof, if constructed, operated, and maintained in accordance with plans, designs, and specifications will result in: (a) Substantially complete removal of all floatable and settleable materials; (b) removal of not less than 85 percent of 5-day biochemical oxygen demand of equivalent; (c) substantially complete reduction of pathogenic microorganisms on a continuous basis; and (d) such additional treatment as may be necessary to meet applicable water quality standards, recommendations of the Administrator, or order of a court pursuant to section 10 of the Federal Water Pollution Control Act: Provided, That in the case of a project which will discharge wastes into open ocean waters through an ocean outfall, the Administrator may waive the requirements of subparagraph (b) of this paragraph if he determines that such discharges will not adversely affect the open ocean environment and adjoining shores: Provided further, That in the case of a project designed solely to treat or control wet weather combined sewer overflows, the Administra

tor may waive the requirements of subparagraphs (b) and (c) of this section if he finds such project to be consistent with river basin and regional or metropolitan plans to meet approved water quality standards.

§ 35.835-5 Industrial waste treatment.

(a) Where a project will treat industrial wastes, a grant may be awarded at the discretion of the Regional Administrator: Provided, That such project is included in a waste treatment system treating the wastes of the entire community, metropolitan area, or region concerned. For the purposes of this section, "waste treatment system" means one or more treatment works which provide integrated, but not necessarily interconnected, waste disposal for a community, metropolitan area or region.

(b) Where industrial wastes are to be treated by the proposed project, no grant may be awarded unless the applicant provides assurance satisfactory to the Regional Administrator that such applicant will require pretreatment of any industrial waste which would otherwise be detrimental to the treatment works or its proper and efficient operation and maintenance, or will otherwise prevent the entry of such waste into the treatment plant.

(c) Where industrial wastes are to be treated by the proposed project, no grant may be awarded unless the applicant provides assurance satisfactory to the Regional Administrator that the applicant has, or will have in effect when the project will be operated, an equitable system of cost recovery. Such system of cost recovery may include user charges, connection fees, or such other techniques as may be available under State and local law. Such system shall provide for an equitable assessment of costs whereby such assessments upon dischargers of industrial wastes correspond to the cost of the waste treatment, taking into account the volume and strength of the industrial, domestic, commercial wastes, and all other waste discharges treated, and techniques of treatment required. Such cost recovery system shall produce revenues, in proportion to the percentage of industrial wastes, proportionately, relative to the total waste load to be treated by the project, for the operation and maintenance of the treatment works, for the amortization of the applicant's indebtedness for the cost of such treatment works, and for such additional

costs as may be necessary to assure adequate waste treatment on a continuing basis. For purposes of this section "industrial waste" shall mean the waste discharges (other than domestic sewage) of industries identified in the "Standard Industrial Classification Manual," Bureau of the Budget, 1967, as amended and supplemented, under the category "Division D-Manufacturing," and such other wastes as the Regional Administrator deems appropriate for purposes of this section.

§ 35.835-6 Design.

No grant may be awarded unless the Regional Administrator determines that the proposed treatment works is designed so as to achieve economy, efficiency, and effectivenes in the prevention or abatement of pollution or enhancement of the quality of the water into which such treatment works effluent will discharge and meet such requirements as the Administrator may publish from time to time concerning treatment works design. § 35.835-7 Operation and maintenance.

No grant may be awarded unless the applicant has made provision satisfactory to the Regional Administrator that the treatment works will be maintained and operated in accordance with such requirements as the Administrator may publish from time to time concerning methods, techniques and practices for economic, and efficient, effective operation and maintenance of treatment works. Such provision shall include, but not be limited to, (a) an operation and maintenance manual, including emergency readiness plan, (b) properly trained personnel, and (c) operational reports.

$35.835-8 Operation during construc

tion.

will inspect the treatment works not less frequently than annually for the 3 years after such treatment works is constructed and periodically thereafter to determine whether such treatment works is operated and maintained in an efficient, economic, and effective manner. § 35.840 Supplemental grant conditions.

In addition to the EPA general grant conditions (Appendix A to this subchapter), each wastewater treatment works construction grant shall be subject to the following conditions:

(a) All measures required to minimize water pollution to affected waters shall be undertaken in the planning and construction processes of the treatment plant to be financed in part by the Federal grant. To achieve this end, regard shall be given to the selection of a plant. site compatible with the protection of the natural environment and the watershed natural cover, engineering and work measures to assure minimal siltation and bank erosion from the construction process, and other measures which reduce water pollution to a minimum.

(b) Construction work will be performed by the lump sum (fixed) price or unit price contract method; adequate methods of advertising for and obtaining sealed competitive bids will be employed prior to award of the construction contract; and the award of the contract will be made to the responsible bidder submitting the lowest responsive bid, which shall be determined without regard to State or local law whereby preference is given on factors other than the amount of the bid.

(c) The project will not be advertised or placed on the market for bidding until the final plans and specifications have been approved by the Regional Administrator, and the appropriate State water pollution control agency and the applicant has been so notified.

(d) On construction contracts exceeding $100,000, the contractor must furnish performance and payment bonds, each of which shall be in an amount not less than 100 per centum of the contract price. Construction contracts less than $100,000 shall follow the State or local requirements relating to bid guarantees, performance bonds, and payment bonds. In all cases, the contractor must maintain during the construction phase of the contract adequate fire and extended coverage, work

men's compensation, public liability and property damage insurance. Proceeds of the performance and payment bonds and fire and extended coverage insurance shall, in the discretion of the Regional Administrator, be applied to meet the cost of construction of the project.

(e) The construction of the project, including the letting of contracts in connection therewith, shall conform to the applicable requirements of State, territorial, and local laws and ordinances except as provided in § 35.840 (b) and (d).

(f) Any construction contract must provide that representatives of the Environmental Protection Agency and the State will have access to the work whenever it is in preparation or progress and that the contractor will provide proper facilities for such access and inspection. The contract must also provide that the Grants Officer, the Comptroller General of the United States, or any authorized representative shall have access to any books, documents, papers, and records of the contractor which are pertinent to the project for the purpose of making audit, examination, excerpts, and transscriptions thereof.

(g) The grantee will provide and maintain competent and adequate engineering supervision and inspection for the project to insure that the construction conforms with the approved plans and specifications.

(h) The applicant will demonstrate to the satisfaction of the Regional Administrator that he has or will have a fee simple or such other estate or interest in the site of the project, and rights of access, as the Regional Administrator finds sufficient to assure undisturbed use and possession for the purpose of construction and operation for the estimated life of the project; and in the case of projects serving more than one municipality, that the participating communities have such interests or rights as the Regional Administrator finds sufficient to assure their undisturbed utilization of the project for the estimated life of the project.

(i) The grantee agrees to construct the project or cause it to be constructed in accordance with the application and plans and specifications approved by the Regional Administrator.

(j) In addition to the notification of project changes pursuant to 40 CFR 30.900-1, a copy of any construction contract, or modifications thereof, and of

revisions to plans and specifications must be submitted to the Regional Administrator through the State water pollution control agency.

(k) In addition to the notification of project changes required pursuant to 40 CFR 30.900-1, prior approval by the Regional Administrator and the State water pollution control agency is required for project changes which (i) substantially alter the design and scope of the project, (ii) alter the type of treatment to be provided, (iii) substantially alter the location, size, capacity, or quality of any major items of equipment; or (iv) increase the amount of Federal funds needed to complete the project: Provided, That prior EPA approval is not required for changes to correct errors, minor changes, or emergency changes. No approval or disapproval of a project change pursuant to 40 CFR 30.900 or this section shall commit or obligate the United States to any increase in the amount of the grant or payments thereunder, but shall not preclude submission or consideration of a request for a grant amendment pursuant to 40 CFR 30.901. § 35.845 Payments.

Installment payments of the Federal grant shall be made upon request of the applicant and shall be based on the cost of the work performed, materials and equipment furnished, and services rendered in connection with an approved project. Payments will generally be made in four installments, except as the Regional Administrator may otherwise direct. Final payment will be made only after a final inspection by an EPA representative upon completion of the project. § 35.850 Reimbursement [Reserved].

Subpart D [Reserved]

Subpart E-Grants for Construction of Treatment Works-Federal Water Pollution Control Act Amendments of 1972 AUTHORITY: Secs. 201 through 205, 207, 210 through 212, and 501(a) of the Act.

SOURCE: 38 FR 5329, Feb. 28, 1973, unless otherwise noted.

compliance with the Federal Water Pollution Control Act.

§ 35.901 Authority.

This subpart is promulgated pursuant to sections 201 through 205, 207, 210 through 212, and 501 (a) of the Act. § 35.903 Summary of construction grant

program.

(a) The construction of federally financed waste treatment works generally is accomplished in three steps-(1) preliminary plans and studies, (2) preparation of construction drawings and specifications, and (3) fabrication and building of a complete and operable treatment works. Although in most cases completion of preliminary plans and studies will be a prerequisite to award of a grant, in order to allow State and Federal officials an adequate basis to determine the merits of proposed projects, the EPA Regional Administrator may award a grant for completion of preliminary plans and studies (the first step). A grant for a project will include an initial payment for the Federal share of the unreimbursed allowable costs of completed work (e.g. preliminary plans and studies, preparation of final construction drawings and specifications), if such prior costs are within the scope of the proposed project and the grant amount certified by the State agency. In no case may a grant be awarded unless the proposed project has received a priority certification which accords with an approved State system for determining the priority of needed treatment works.

(b) The scope of a project may include one or more construction steps and will be determined by the definition of the project in the grant application submitted to the State agency, by the scope of the project for which State priority certification is given, and finally by the scope of the project for which the Regional Administrator awards a grant. Funding of a complete treatment works may (but need not) be "split" into a project or grant for each step. The State is responsible for determining the amount and timing of Federal assistance to each municipality for which treatment works funding is needed.

(c) Upon award of a grant under this subpart, the grantee may submit a request for payment for the unpaid Federal share of allowable project costs incurred prior to the award, and the grant shall

constitute a contractual obligation of the United States to pay the Federal share of allowable project costs up to the amount approved in the grant agreement (including amendments).

(d) No grant may be awarded under this subpart for a project for the building and erection of a treatment works (Step 3) if initiation of the project construction has occurred, that is, if a notice to proceed has been issued under a construction contract for any portion of the project work or, if notice to proceed is not required, if the construction contract has been executed.

(e) Applications for grants and grant amendments must first be submitted to the State agency, and the State agency may then forward to the appropriate EPA Regional Administrator complete project applications or grant amendments which have been certified by the State agency as entitled to priority.

(f) Sewage collection systems for new communities, new subdivisions, or newly developed urban areas must be addressed in the planning of such areas and must be included as a part of the development costs of the new construction in these areas; they are not to be covered under the construction grant program. § 35.905

Definitions.

as used in this subpart, means the issuance of a notice to proceed, or, if none is required, the execution of a construction contract.

§ 35.905-4 Excessive infiltration/inflow.

The quantities of infiltration/inflow which can be economically eliminated from a sewer system by rehabilitation, as determined by a cost-effectiveness analysis that (for the design life of the treatment works) compares correcting the infiltration/inflow conditions with increasing the treatment works capacity to provide the required waste water treatment for the quantities of infiltration/inflow.

§ 35.905-5 Infiltration.

The water entering a sewer system and service connections from the ground, through such means as, but not limited to, defective pipes, pipe joints, connections, or manhole walls. Infiltration does not include, and is distinguished from, inflow.

§ 35.905-6 Inflow.

The water discharged into a sewer system and service connections from such sources as, but not limited to, roof leaders, cellar, yard, and area drains, foundation drains, cooling water discharges, drains from springs and swampy areas, manhole covers, cross connections from storm sewers and combined sewers, catch basins, storm waters, surface run-off, street wash waters, or drainage. Inflow does not include, and is distinguished from, infiltration.

§ 35.905-7 Infiltration/inflow.

The total quantity of water from both infiltration and inflow without distinguishing the source.

§ 35.905-8 Interstate agency.

An agency of two or more States established by or pursuant to an agreement or compact approved by the Congress, or any other agency of two or more States, having substantial powers or duties pertaining to the control of water pollution. § 35.905-9 Municipality.

A city, town, borough, county, parish, district (but excluding a school district), association, or other public body (including an intermunicipal agency of two or more of the foregoing entities) created