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the plan for overview agreed to in advance, and should be appropriate to the delegation situation existing between the Region and State. It should take into account past performance of the State and the extent of State experience in administering the delegated functions. An on-site evaluation will occur at least annually and will cover, at a minimum, negotiated annual outputs, performance expected in the delegation agreement and, where applicable, evaluation of performance under the assistance agreement as provided in 40 CFR 35.150. The evaluation will cover performance of both the Region and the State. Upon completion of the evaluation, the delegation agreement may be revised, if necessary, to reflect changes resulting from the evaluation. The Regional Administrator may terminate or annul any section 205(g) financial assistance for cause in accordance with the procedures in Subpart A, $ 35.150, and Part 30. (Approved by the Office of Management and Budget under control number 20000417)

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pose of the overview program is to ensure that both the delegated State and EPA efficiently and effectively execute the fiscal and program respon. siblilities under the Clean Water Act and related legislation. The overview program is comprised of three steps:

(a) Developing a plan for overview. The plan for overview specifies priori. ty objectives, key measures of performance, and monitoring and evaluation activities (including State reporting to EPA) for the upcoming year. EPA and the State should agree to a plan for overview in advance of the upcoming year.

(1) Priority objectives will include both program and management objectives. In developing the State priority objectives, the national priorities identified by the Administrator on annual basis must, at a minimum, be addressed and applied as appropriate to each State. In addition, the Regional Administrator and the State may identify other objectives unique to the situation in the State.

(2) For each priority objective, the plan for overview will specify key measures of performance (both quantitative

and qualitative), identify which measures will require the negotiation of outputs, and enumerate the specific monitoring and evaluation activities and methods planned for the upcoming year.

(b) Negotiating annual outputs. Annually, the Region and delegated State will negotiate and agree upon outputs, where required by the plan for overview, to cover priority objectives for the upcoming year. This negotiation should also result in develonment of the work program required for the section 205(g) assistance application, pursuant to Subpart A, $ 35.130 of this part. Where the assistance application covers a budget period beyond the annual overview program period, the assistance award may be made for the full budget period, contingent on future negotiation of annual outputs under this paragraph for subsequent years of the budget period.

(c) Monitoring and evaluating program performance. Monitoring and evaluation of program performance (including State reporting) is based on

8 35.3030 Right of review of State deci.

sion. (a) Any construction grant application or grantee who has been adversely affected by a State's action or omission may request Regional review of such action or omission, but must first submit a petition for review to the State agency that made the initial decision. The State agency will make a final decision in accordance with procedures set forth in the delegation agreement. The State must provide, in writing, normally within 45 days of the date it receives the petition, the basis for its decision regarding the disputed action or omission. The final State decision must be labeled as such and, if adverse to the applicant or grantee, must include notice of the right to request Regional review of the State decision under this section. A State's failure to address the disputed action or omission in a timely fashion, or in writing, will not preclude Regional review.

(b) Requests for Regional review must include:

(1) A copy of any written State deci. gram. If the Regional Administrator sion.

or State determines that significant (2) A statement of the amount in interest and desire for a public meetdispute,

ing exist, the Region or State will hold (3) A description of the issues in- one or more public meetings at least volved, and

30 days prior to execution. (4) A concise statement of the objections to the State decision.

Subparts K-L (Reserved) The request must be filed by registered mail, return receipt requested, within thirty days of the date of the Subpart M-Grants for Technical State decision or within a reasonable

Assistance time if the State fails to respond in writing to the request for review.

AUTHORITY: 42 U.S.C. 9617(e); Sec. 9(8),

E.O. 12580. (c) The Region shall determine whether the State's review is compara

SOURCE: 53 FR 9748, Mar. 24, 1988, unless

otherwise noted. ble to a dispute decision official's (DDO) review pursuant to 40 CFR

8 35.4000 Authority. Part 30, Subpart L. If the State's review is comparable, Regional review This regulation is issued under secof the State's decision will be conduct- tion 117(e) of the Comprehensive Ened by the Regional Administrator. If vironmental Response, Compensation, the State's review is not comparable, and Liability Act of 1980 (CERCLA), the DDO will review the State's deci- as amended, 42 U.S.C. 9617(e). sion and issue a written decision. Review of either a Regional Adminis

8 35.4005 Purpose. trator or DDO decision may be re- This regulation codifies policies and quested pursuant to Subpart L.

procedures for technical assistance (Approved by the Office of Management

grants awarded by EPA to groups of and Budget under control number 2040

individuals. This regulation estab0095)

lishes the procedures for accepting (50 FR 45896, Nov. 4, 1985)

and evaluating applications, and for

awarding and managing technical as8 35.3035 Public participation.

sistance grants. These provisions sup(a) Public participation during the

plement the EPA general assistance development, review, approval, and regulations and procedures at 40 CFR substantial revision of the delegation

Part 30 and are applicable to all appliagreement will be in accordance with cants/recipients of technical assistthe requirements of section 101(e) of

ance grants. the Act, Part 25 of this chapter, and this subpart.

8 35.4010 Definitions. (b) The Regional Administrator or As used in this regulation, the fol. the State, as mutually agreed, will lowing words and terms shall have the make the draft delegation agreement, meaning set forth below: any proposed substantial amendment "Affected" means subject to en to the delegation agreement, and the actual or potential health, economic or proposed annual overview program, environmental threat arising from a available to the public for comment, release or a threatened release at a faand provide notice of availability, suf- cility listed on the National Priorities ficiently in advance of execution to List (NPL) or proposed for listing allow for timely comment.

under the National Oil and Hazardous (c) If, based on comments received, Substances Pollution Contingency the Regional Administrator or State Plan (NCP) where a response action determines that significant interest under CERCLA has begun. Examples exists, the State and EPA will consult of "affected" parties include individwith interested and affected groups uals who live in areas adjacent to NPL and citizens prior to execution of the facilities, who depend on water sources delegation agreement, substantial endangered by releases of hazardous amendment, or annual overview pro- substances at the facility, or whose

means

economic interests are directly threatened or harmed.

“Applicant” means any group of individuals that files an appplication for a technical assistance grant.

“Application" means a completed formal written request for a technical assistance grant that is submitted to the Agency on EPA Form 5700-334 State and Local Nonconstruction Program, or to a State on its appropriate form.

“Award” means the technical assistance grant agreement signed by both EPA and the recipient.

“Award Official” means the official delegated the authority to sign grant agreements.

“Budget" means the financial plan for the spending of all Federal and matching funds (including in-kind contributions) for a technical assistance grant project as proposed by the applicant, and negotiated with and approved by the Award Official.

"Budget period” mea:is the length of time specified in a grant agreement during which the recipient may spend or obligate Federal funds. The budget period may not exceed 3 years. A technical assistance grant project period may be comprised of several budget periods.

“Cash contribution" means actual non-Federal dollars, or Federal dollars if expressly authorized by statute to do so, that a recipient spends for goods and services and real or personal property used to satisfy the matching funds requirement.

“Contractor” means any party (i.e., technical advisor) to whom a recipient awards a subagreement.

“EPA” means the Environmental Protection Agency. Where a State administers the Technical Assistance Grant Program, the term "EPA” may mean a State agency.

"Federal facility" means a facility that is owned or operated by a department, agency, or instrumentality of the United States.

Grant agreement” means the legal document that transfers money, or anything of value, to a recipient to accomplish the purpose of the technical assistance grant project. It specifies budget and project periods, the Federal share of eligible project costs, a de

scription of the work to be accomplished, and any special conditions.

"In-kind contribution" means the value of a non-cash contribution used to meet a recipient's matching funds requirement in accordance with 40 CFR 30.307(b). An in-kind contribution may consist of charges for equipment or the value of goods and services necessary to and directly benefiting the EPA-funded project.

“Matching funds” means the portion of allowable project costs that a recipi. ent contributes toward completing the technical assistance grant project using non-Federal funds or Federal funds if expressly authorized by statute. The match may include in-kind as well as cash contributions.

“Operable unit” means a response action taken as one part of an overall site response. A number of operable units may occur in the course of a site response.

Potentially Responsible Party" (PRP)

any individual(s) or company(ies) (such as owners, operators, transporters, or generators) potentially responsible under sections 106 or 107 of CERCLA for the contamir:ation problems at a Superfund site.

“Recipient” means any group of individuals that has been awarded a technical assistance grant.

“Recipient's project manager" means the person legally authorized to obligate the organization to the terms and conditions of EPA's regulations and the grant agreement, and desig nated by the recipient to serve as its principal contact with EPA.

“Response Action” means all activities undertaken to address the problems created by hazardous substances at a National Priorities List site.

“Start of Response Action” means the point in time when there is a guarantee or set-aside of funding either by EPA, other Federal agencies, States, or PRPs in order to begin response activities at a site. The document which reflects the set-aside of, or formally guarantees, funding during the coming fiscal year, is EPA's annual Superfund Comprehensive Accomplishments Plan (SCAP).

“Subagreement” means a written agreement between the technical assistance 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 the States.

(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 for 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. $ 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 account. ability 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 re

lease or a threatened release at any fa- (b) The applicant best represents cility that (a) is listed on the National groups and individuals affected by the Priorities List (NPL) under the Na- site (20 points); tional Contingency Plan (NCP) is pro- (c) The identification of how the posed for listing and a response action group plans to use the services of a has begun.

technical advisor throughout the Su

perfund response action (20 points); 8 35.4030 Ineligible applicants.

(d) The demonstrated intention and (a) Groups and organizations which ability of the applicant to inform are ineligible to receive or to be repre- others in the community of the inforsented in groups receiving technical mation provided by the technical adviassistance grants are:

sor (20 points); and (1) Potentially responsible parties (e) The presence of an actual or po(PRPs);

tential economic threat or threat of an (2) Corporations that are not incor- impaired use or enjoyment of the enviporated for the specific purpose of ronment to group members that is representing affected individuals at caused by the site. This criterion can the site;

be met by establishing a demonstrable (3) Academic institutions;

economic or environmental threat to (4) Political subdivisions (e.g., town- group members or a reasonable belief ships and municipalities); and

that the site poses a substantial eco(5) Groups established and/or sus- nomic or environmental threat. (10 tained by governmental entities (in- points). cluding emergency planning committees and some citizen advisory groups).

8 35.4040 Notification process. (b) This section shall not preclude (a) Groups wishing to apply for a any individual affected by a Super- technical assistance grant shall first fund site from participating in a recip- submit a letter of intent to EPA. EPA ient group in his or her capacity as an will respond in writing to a letter of individual.

intent.

(b) Upon receipt of the first letter of 8 35.4035 Evaluation criteria.

intent, EPA will undertake certain acEPA will award a technical assist- tivities depending on the schedule for ance grant only after it has deter- work at the site: mined that all eligibility and responsi- (1) If commencement of the remedi. bility requirements listed in $$ 35.4020, al investigation or a removal action is 35.4025, and 35.4030 are met, and after not underway or scheduled to begin, review of the applicant's qualifications EPA will advise the group in writing in the narrative section of the grant that grant applications for the site are application. Each applicant will be re- not yet being accepted. EPA may inquired to provide information on liow formally notify other interested it meets the eligibility criteria in the groups that it has received a letter of grant application. If the Agency is ad- intent; or ministering the technical assistance (2) If a response action is already ungrant program, the “Applicant Qualifi- derway or scheduled to begin, EPA cations" section is Part IV of EPA will conduct one or more of the followForm 5700.33, “State and Local Non- ing activities-mailings, meetings, and construction Programs." The follow- public notices—to provide formal ing factors will be evaluated and notice to other interested parties that weighted as indicated:

a gr for the site soon may be (a) The presence of an actual or po- awarded. These formal notification astential health threat posed to group tivities will generally be conducted far members by the site. This criterion enough in advance of the start of the can be met by establishing a demon- response action to allow time for strable threat to members' health or a groups to consolidate, apply for and reasonable belief that the site poses a receive a grant award, and procure a substantial threat to their health. (30 technical advisor before work compoints);

mences at the site.

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