[Federal Register Volume 64, Number 141 (Friday, July 23, 1999)]
[Proposed Rules]
[Pages 40064-40081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17341]
[[Page 40063]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 35 and 745
Environmental Program Grants--State, Interstate, and Local Government
Agencies; Proposed Rule
Federal Register / Vol. 64, No. 141 / Friday, July 23, 1999 /
Proposed Rules
[[Page 40064]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 35 and 745
[FRL-6373-1]
RIN 2030-AA55
Environmental Program Grants--State, Interstate, and Local
Government Agencies
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: This regulation proposes to revise and update requirements in
several Environmental Protection Agency regulations, particularly
subpart A of part 35, governing grants to State, interstate and local
government agencies from EPA under several environmental programs. The
regulation advances ongoing efforts to build more effective State-EPA
partnerships and to improve environmental conditions by providing
States with increased flexibility to direct resources where they are
needed most to address environmental and public health needs. This
regulation: updates, clarifies, and streamlines requirements governing
environmental program grants; establishes requirements for the new
Performance Partnership Grant (PPG) program; and establishes
requirements for grant programs that began after the original rule was
published. (A regulation governing environmental program grants to
Indian Tribes and Tribal Consortia is published elsewhere in this issue
of the Federal Register.)
DATES: Please submit comments on this proposed rule by September 7,
1999.
ADDRESSES: Written comments should be submitted to: Performance
Partnership Grants--State Comment Clerk (Docket #WD-98-9); Water Docket
(MC-4104); U.S. Environmental Protection Agency; 401 M Street, SW;
Washington, DC 20460. Comments may be hand-delivered to the Water
Docket; U.S. Environmental Protection Agency; 401 M Street, SW; East
Tower Basement; Washington, DC 20460. Comments may be submitted
electronically to owdocket@epamail.epa.gov.
FOR FURTHER INFORMATION CONTACT: W. Scott McMoran, Grants Operations
Branch B (3903R), United States Environmental Protection Agency, 401 M
Street, SW, Washington, DC 20460, (202) 564-5376.
SUPPLEMENTARY INFORMATION:
I. Regulated Entities
Entities eligible to receive the environmental grants listed in 40
CFR 35.100 are regulated by this rule. Regulated categories and
entities include:
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Category Regulated entities
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Government.................................................................... State Governments/Agencies.
Local Governments/Agencies.
Interstate Agencies.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities eligible under EPA's authorizing
and appropriations statutes that EPA is now aware could potentially be
regulated by this action. Other types of entities could also be
regulated. To determine whether your organization is regulated by this
action, you should carefully examine the applicability criteria in
Sec. 35.134 and the program-specific provision in Secs. 35.140 through
35.418 of the rule. If you have questions regarding the applicability
of this action to a particular entity, consult the person listed in the
FOR FURTHER INFORMATION CONTACT section.
II. Comments and Record
Please submit an original and three copies of your comments and
enclosures (including references). The Agency requests that commenters
follow the following format: Type or print comments in ink, and cite,
where possible, the paragraphs in this notice to which each comment
refers. Electronic comments must be submitted as a WP5.1 or WP6.1 file
or as an ASCII file avoiding the use of special characters. Comments
and data will also be accepted on disks in the formats above.
Electronic comments may be filed online at many Federal Depository
Libraries. Commenters who want EPA to acknowledge receipt of their
comments should include a self-addressed, stamped envelope. No
facsimiles (faxes) will be accepted.
Availability of Record: The record for this Notice, which includes
supporting documentation as well as printed, paper versions of
electronic comments, is available for inspection from 9 a.m. to 4 p.m.
(Eastern Time), Monday through Friday, excluding legal holidays, at the
Water Docket, U.S. EPA Headquarters, 401 M Street, SW; East Tower
Basement; Washington, DC 20460. For access to docket materials, please
call (202) 260-3027 to schedule an appointment.
III. Background
Since EPA was formed in 1970, State capacity and responsibility for
implementing environmental and public health protection programs has
grown steadily. Meanwhile, environmental problems and their solutions
have grown more complex. In light of these changes, State and EPA
leaders recognized that continued environmental progress could be best
achieved if EPA and States worked together more effectively--as
partners.
In 1995, they agreed to develop and implement the National
Environmental Performance Partnership System (NEPPS). NEPPS is designed
to: promote joint planning and priority setting by EPA and the States;
provide States with greater flexibility to direct resources where they
are needed most; foster use of integrated and innovative strategies for
solving water, air, and waste problems; achieve a better balance in the
use of environmental indicators and traditional activity measures for
managing programs; and improve public understanding of environmental
conditions and the strategies being used to address them.
The changes proposed in this rule are intended to promote State-EPA
collaboration; provide opportunities for innovation; and reduce
paperwork--while ensuring sound fiscal management and accountability
for environmental performance--in a manner consistent with NEPPS. For
example, EPA hopes to foster joint planning and priority-setting by
explicitly requiring that State priorities and needs be considered,
along with national and regional guidance, in negotiating grant work
plans. Under this rule, a State can choose to organize its grant work
plans in accordance with environmental goals and objectives or in other
new ways rather than using categories pre-defined by EPA. The length of
a grant budget period will be negotiable. These flexibilities are
available to all States, regardless of whether they are actively
participating in other aspects of NEPPS.
More than half of the States have elected to negotiate and enter
into
[[Page 40065]]
Performance Partnership Agreements (PPAs) with EPA as the primary
mechanism for implementing NEPPS. Although each PPA is different, PPAs
typically set out jointly developed goals, objectives, and priorities;
the strategies to be used in meeting them; the roles and
responsibilities of the State and EPA; and the measures to be used in
assessing progress. (In some cases, comparable negotiated agreements
are given a different name, such as Environmental Performance
Agreements.) A PPA is generally based on information about the
environmental and program conditions of the State as well as national
and regional priorities and concerns. A State may apply for and receive
any grant, including a PPG, without negotiating a PPA. However, a PPA
can provide the strategic underpinning for the work a State plans to
carry out with EPA financial assistance and the PPA can serve as a
grant work plan if it meets other grant-related statutory and
regulatory requirements.
Recognizing the limitations of traditional categorical grants to
allow full achievement of the NEPPS goals, EPA asked Congress for new
authority that would give States greater flexibility in the use of
federal grant funds. In the Omnibus Consolidated Rescissions and
Appropriations Act of 1996 (Pub. L. 104-134) and EPA's FY 1998
Appropriation Act (Pub. L. 105-65), Congress authorized the award of
Performance Partnership Grants (PPGs), in which State and interstate
agencies (and Tribes and Intertribal Consortia) can choose to combine
two or more environmental program grants.
Under a PPG, a recipient can achieve cost and administrative
savings by reductions in the amount of grant paperwork as well as
simplified accounting requirements that do not require the recipient to
account for expenditures in accordance with their original funding
sources. With PPGs, recipients can negotiate work plans with EPA that
direct federal funds where the recipients need them most to address
environmental and public health problems. Recipients can also try new
multi-media approaches and initiatives, such as children's health
protection programs, multi-media inspections, compliance assistance
programs, and ecosystem management, that were difficult to fund under
traditional categorical grants.
This rule is designed to accommodate all potential variations in
how EPA and individual States may work to build partnerships. The rule
is also designed to minimize duplicative effort by allowing for
multiple uses of information or processes wherever appropriate. A State
may choose to negotiate a PPA or comparable strategic agreement with
EPA. Where a State negotiates both a PPA and PPG, the processes and
documentation can be integrated and, if appropriate, identical. Also, a
State can receive a separate categorical grant for each environmental
program, a PPG covering all programs eligible for inclusion, or a
combination of separate categorical grants and PPGs covering only some
programs.
These regulations will be codified in 40 CFR part 35 as EPA's
Environmental Program Grant regulations. Subpart A applies to State,
interstate, and local agencies. EPA is proposing to add to the existing
subpart A provisions for the following programs: Performance
Partnership Grants, Lead-Based Paint Grant Program; State Indoor Radon
Grants; Toxic Substances Enforcement Grants; State Underground Storage
Tank Grants; Pollution Prevention Incentives Grants for States; Water
Quality Cooperative Agreements; and Wetlands Development Grant Program.
EPA is also publishing subpart B in this issue of the Federal Register,
which applies to Tribes and Intertribal Consortia.
These regulations supplement EPA's Grants and Cooperative
Agreements to State and Local Governments regulations (40 CFR part 31).
Part 31 applies to grants and subawards to State governments,
interstate agencies, and local governments, including a council of
governments (whether or not incorporated as a nonprofit under State
law), and any other regional or interstate government entity.
This rule proposes to delete 40 CFR 745.330, which authorizes EPA
to make grants to States and Indian Tribes under section 404(g) of the
Toxic Substances Control Act for lead-based paint programs. Provisions
governing those grants are included in this proposed subpart A and in
proposed subpart B of 40 CFR part 35.
IV. Requirements for Environmental Program Grants
Sections 35.100 through 35.118 of the proposed rule apply to all
environmental program grants covered by subpart A of part 35, including
PPGs. This rule contains changes to foster State-EPA partnerships,
improve accountability for environmental and program performance, and
streamline administrative requirements. Some of the proposed rule's key
features are discussed below.
State-EPA Partnerships
To foster joint planning and priority setting, the rule explicitly
requires consideration of State priorities along with national and
regional guidance in negotiating grants. However, the EPA Regional
Administrator must consult with the National Program Manager before
agreeing to a State work plan that differs substantially from national
guidance. A State is provided flexibility through the work plan
negotiation process, and in particular through its ability to organize
work plan components in whatever way fits best. States applying for
PPGs will have still greater flexibility as described in the PPG
discussion below. Where appropriate, the grant work plan will reflect
both EPA and State roles and responsibilities and there will be a
negotiated joint performance evaluation process.
Accountability
The rule has been updated to accommodate results-oriented
approaches to planning and managing environmental programs. Definitions
and other aspects of the rule dovetail with the new Government
Performance and Results Act (GPRA) and reflect efforts to establish
goals and objectives as well as environmental and program performance
measures at both the national and State levels. The rule recognizes the
need for a mix of outcome (results) and output (activity) measures for
management purposes. While the revised rule encourages States to
organize their work plans around goals and objectives, States may
continue to use existing structures if they wish.
Administrative Changes
Under the rule, States can negotiate budget periods of one or more
years with EPA. EPA recommends, however, that budget periods not exceed
five years because it is difficult to account for funds and maintain
records for longer periods.
The rule streamlines some requirements and eliminates other
requirements associated with changes made to grant work plan
commitments and budgets. These requirements replace those found in 40
CFR 31.30. Prior written approval from EPA is still required for
significant changes in a grantee's work plan commitments. Written, but
not prior, approval is required for changes requiring increases in
grant amounts and extensions of the budget period. EPA approval is no
longer required for other changes in the work plan or budget, changes
in key persons or decisions to carry out portions of the work through
subgrants or contracts unless the Regional Administrator determines, on
a case-by-
[[Page 40066]]
case basis, that circumstances warrant imposing additional approval
requirements on a particular recipient.
Pre-award Costs
Pre-award costs may be reimbursed under the grants without prior
approval so long as they are incurred within the budget period,
identified in the approved grant application, and would have been
allowable if incurred after the award.
Insular Areas
EPA is proposing conforming changes in the rule to reflect the
change in status of the Marshall Islands, the Federated States of
Micronesia, and Palau. They were previously entities within the Trust
Territory of the Pacific Islands, but they have entered into Compacts
of Free Association with the Government of the United States. As a
result, each is now a sovereign, self-governing State and as such is no
longer eligible to receive grants as a territory or possession of the
United States. Because the Trust Territory of the Pacific Islands no
longer exists, the rule's provisions regarding allotments omit any
reference to the Trust Territory and references to the Trust Territory
in environmental program grant statutes, including the references in
the definitions of ``State,'' no longer have legal effect.
The Administrator of EPA is authorized to consolidate grants and
waive administrative requirements for grants made to certain insular
areas. 48 U.S. C. 1469a. Through this regulation that authority is
delegated to the Regional Administrators.
V. Performance Partnership Grants
Sections 35.130 through 35.138 contain requirements that apply only
to Performance Partnership Grant (PPGs). In a Performance Partnership
Grant, the recipient can combine funds from two or more environmental
program grants into a single grant under streamlined administrative
requirements. Funds may be used for eligible cross-media activities or
strategies and do not need to be accounted for in accordance with their
original program sources. Key features of the PPG rule are discussed
below.
Funds and Activities Eligible for Inclusion in a PPG
Funds for any particular environmental program grant may be
included in a PPG only if the funds for that grant are appropriated in
the same specific appropriation (earmark) as the funds for PPGs. EPA
will announce any changes in its appropriation acts that affect the
list of programs in Sec. 35.101. Currently, funds from all but two of
the environmental program grants listed in Sec. 35.101 are eligible for
inclusion in a PPG. Funds for Water Quality Management Planning grants
under section 205(j)(2) of the Clean Water Act are not available for
inclusion in PPGs because funds for these grants are reserved from a
different earmark in the Agency's appropriation act. In addition, there
are no funds appropriated for State Administration grants under section
205(g) of the Clean Water Act.
A PPG recipient may use PPG funds to carry out any activity that
would be authorized under at least one of the environmental program
grants from which funds are combined in the PPG. This means that a PPG
recipient may not spend PPG funds on an activity unless the PPG
includes some funds from an environmental program grant under which
that activity would be eligible. For example, a PPG recipient could not
use PPG funds for an activity that is authorized only under sections
205(g) or 205(j)(2) of the Clean Water Act because no section 205(g) or
205(j)(2) funds will have been included in the PPG. On the other hand,
if an activity would be authorized under section 106 of the Clean Water
Act, and the PPG includes section 106 funds, then the activity may be
funded by the PPG.
A State or interstate agency must meet the requirements for award
of each of the environmental programs from which funds are combined in
the PPG, with a few specified exceptions. The exceptions are
requirements that restrict how a specific environmental program grant
can be used after award. These requirements are not appropriate to be
carried over to Performance Partnership Grants because after funds are
awarded in a Performance Partnership Grant they may be used for cross-
media purposes and States interstate agencies do not need to account
for the funds in accordance with their original program sources.
Entities Eligible for PPGs
The types of organizations eligible for PPGs are determined by the
authorizing statutes for the PPG program, which are EPA's FY 1996 and
1998 appropriation acts, (Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Public Law 104-134, 110 Stat. 1321, 1321-
299 (1996); Departments of Veterans Affairs and Housing and Urban
Development, and Independent Agencies Appropriations Act, 1998, Pubic
Law 105-65, 111 Stat. 1344, 1373 (1997)). Consistent with those
statutes, only States and interstate agencies will be eligible for PPGs
under this proposed rule. Interstate agencies are only eligible for
PPGs that combine funds from a few existing grant programs because
interstate agencies are only authorized to receive grants under those
few environmental programs. Specifically, interstate agencies are
eligible for PPGs that include funds from the following programs: Air
Pollution Control (section 105 of the Clean Air Act); Water Pollution
Control (section 106 of the Clean Water Act); Wetlands Development
Grants (section 104(b)(3) of the Clean Water Act); and Water Quality
Cooperative Agreements (section 104(b)(3) of the Clean Water Act).
Recipients must be interstate agencies as defined by either the Clean
Water Act, the Clean Air Act, or both, depending on which funds are
included in the PPG. Congress authorized EPA to award PPGs to
interstate agencies, but only as provided in authorizing statutes;
Congress did not intend to change any of the existing program grant
eligibility requirements, including the definition of interstate
agency. The ability of recipients to make subgrants will not be
affected by combining funds into a PPG.
Competitive Grants and PPGs
States must compete for some of the environmental programs eligible
for a PPG (e.g., pollution prevention incentives for States, wetlands
program development, and water quality cooperative agreements). States
must first be selected in the competitive process in order to include
these competitive grants in a PPG. In some programs, this process may
include the awarding of funds to a State agency through decisions made
during a joint planning process. To maintain the integrity of the
competitive process and ensure that the work that was the basis for
EPA's selection of the proposal is performed, the State must include
the work plan commitments proposed in the competitive grant application
in the PPG work plan. However, as with other program funds included in
a PPG, the State does not need to account for these funds in accordance
with the funds' original environmental program source. Although a State
must agree to complete the work plan commitments proposed in the
competitive work plan, it need not account for the funds spent on a
specific environmental program or activity. Also, if the time required
to complete work under the competitive program is longer than the
budget period for the States' PPG, States must make provisions to carry
the activities (and funds, if appropriate) to subsequent PPG budget
periods to complete them.
[[Page 40067]]
Administrative Flexibility
A primary advantage of PPGs is the administrative flexibility
provided to all PPG recipients. A PPG requires only a single
application, work plan, and budget regardless of how many environmental
programs provide the funds for the PPG. Once funds are awarded in a
PPG, recipients can direct the funds as needed to achieve work plan
commitments and need not account for funds in accordance with their
original funding program sources. The minimum cost share required for a
PPG is the sum of the cost share amounts required for each of the
environmental program grants combined in the PPG. If a program has both
a match and a maintenance of effort requirement, the greater of the two
amounts will be used to calculate the minimum cost share attributed to
that program. Just as federal funds in the PPG do not need to be
accounted for on the basis of their original program source, the non-
federal share of a PPG may be expended on work plan commitments without
regard to the original source of the cost share requirement. These
administrative features also make it possible for States to negotiate a
work plan that includes cross-media or innovative strategies for
addressing environmental problems.
Programmatic Flexibility
If approved by the EPA Regional Administrator, a PPG can also
provide the State with programmatic flexibility to increase efforts in
some program areas where the State's needs are greater and decrease
them in others where the State's needs are less. In applying for
programmatic flexibility, the State agency must provide a rationale
commensurate with the type and amount of flexibility being proposed,
explaining the basis for the State's priorities and the environmental
or other benefits it expects to achieve. The State must also assure
that basic programs are maintained for all programs combined in the
grant. The Regional Administrator and State agency will negotiate
regarding the environmental and other information that EPA needs to
make a decision regarding the application for flexibility. Information
useful in supporting a State's proposal for programmatic flexibility
may already exist, such as in a PPA, a recent water quality report, or
a previous grant evaluation. Such information should be used to the
extent possible to minimize duplication of effort.
Performance Incentives
One goal of the performance partnership grant program is to find
ways to encourage and reward outstanding State recipient performance.
EPA believes this regulation will establish the foundation for such an
incentive program by assuring--
States and EPA's regions agree to measurable outcomes and
outputs when awards are signed in accordance with the agreement on core
measures.
Outcome and output accomplishments are measured and
documented through the joint evaluation process developed and agreed to
by the States and EPA under the rule.
We would expect such a program to be based on each year's
performance evaluation. We are considering incentive approaches such
as--
Using a part of each year's funds to provide incentive
bonuses to States which are most successful in meeting commitments, and
Using a part of each year's funds to provide bonuses to
States which assume primacy/authorization for programs such as drinking
water and hazardous waste.
There may be many other possible incentive approaches and we are
soliciting recommendations for them. We also request your comments on
the options suggested above.
VI. Implementing GPRA
The Agency has developed an approach toward the integrated
implementation of GPRA, the Chief Financial Officers Act (CFOA), and
the Federal Financial Management Improvement Act of 1996 (FFMIA). These
laws provide EPA with a framework to demonstrate to Congress and the
taxpayers the costs to the federal government of EPA's program goals
and objectives. The States, by virtue of delegated program authorities
and as recipients of EPA grant funds, play an integral part in
achieving those goals and objectives. Thus EPA's reports of Agency
resources associated with outcomes and outputs will incorporate--at
some level--expenditures incurred in the form of payments under grants
and cooperative agreements . In order to comply with the Paperwork
Reduction Act and the federal government's general grant regulations,
EPA also has a responsibility to minimize additional administrative
reporting requirements and costs borne by the States. In addition,
under current regulations EPA generally may not impose accounting
requirements on States beyond those currently required by 40 CFR part
31.
EPA will therefore use the budget information that States provide
in grant applications as a basis for linking the Agency's actual
expenditures with outcomes. EPA will be able to rely on State budget
information to determine the costs of EPA's outcomes, as long as the
following three conditions exist, which are all required by the
proposed regulation:
(1) States provide the program budget information required as part
of the application;
(2) EPA and the States explicitly define work plan activities,
outcomes, and outputs, as well as the program flexibility contained in
the work plan; and
(3) States report back on work plan accomplishments.
The proposed rule ensures that States will meet these three
conditions, thus providing a reasonable basis for using State grant
program budgets to estimate State contributions to the costs of
achieving EPA's outcomes.
EPA's regional offices, with necessary consultation with
recipients, will be responsible for cross-walking the State budget
information (grant application and work plan data) into the GPRA goals
and objectives architecture. If a grant is subsequently amended to
reflect significant adjustments to work plan commitments, the region
will consult with the State to develop an estimate of the budget
associated with the revision so that it can be reflected in regional
GPRA reporting. The Office of the Chief Financial Officer will provide
regions with guidance on the approach to use for the cross-walk process
to ensure that the results achieved by States with EPA funds are
captured in the Agency's Annual Performance Reports.
VII. Program Specific Provisions
Requirements applicable to each environmental grant program are
located in Secs. 35.140 through 35.418.
Eligibility
The requirements that recipients must meet to qualify to receive
funds under specific environmental programs are included in the
program-specific provisions (see Secs. 35.140 through 35.418).
Cost Share
The required cost share for each environmental program is
identified in the program specific sections. Some programs do not have
cost share requirements, while others have percentage matching share
[[Page 40068]]
requirements, level of effort requirements, or both.
VIII. Conclusion
This regulation will be the foundation for continuing efforts to
improve partnerships between EPA and its State, interstate, and local
environmental protection partners. All recipients will benefit from the
streamlined and simplified requirements of the regulation. In addition,
it will provide recipients choosing to participate in the PPG program
with programmatic flexibility to better use funds to address
environmental priorities.
Regulatory Flexibility Act
The Agency has determined that the requirement in the Regulatory
Flexibility Act (RFA) to prepare a regulatory flexibility analysis does
not apply to this rule. A regulatory flexibility analysis must be
prepared only where the Agency is required by Administrative Procedure
Act (APA) or another statute to publish a general notice of proposed
rulemaking. 5 U.S.C. 603. Grant making matters, such this rule, are not
subject to the notice and comment requirements of the APA (5 U.S.C.
553(a)(1)). Nor is this rule required to undergo notice and comment
rulemaking under any other statute.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, 2 U.S.C. 1501 et seq., 109 Stat. 48 (1995), establishes
requirements for federal agencies to assess the effects of their
regulatory actions on State, local, and Tribal governments and the
private sector. Under section 202 of the UMRA, EPA generally must
prepare a written statement, including a cost-benefit analysis, for
proposed and final rules with ``federal mandates'' that may result in
expenditures by State, local, and Tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any one year. This
regulation contains no federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or Tribal
governments or the private sector. The UMRA excludes from the
definitions of ``federal intergovernmental mandate'' and ``federal
private sector mandates'' duties that arise from conditions of federal
assistance.
National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act (NTTAA), EPA is required to use voluntary consensus
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impracticable. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, business practices,
etc.) that are developed or adopted by voluntary consensus standards
bodies. Where available and potentially applicable voluntary consensus
standards are not used, the Act requires EPA to provide Congress,
through the Office of Management and Budget, an explanation of the
reasons for not using such standards.
This proposed rule does not involve any technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards. Commenters who disagree with this conclusion should indicate
how the Notice is subject to the Act and identify any potentially
applicable voluntary consensus standards.
Executive Order 13045
Executive Order 13045 applies to any rule that is determined to be:
(1) ``economically significant'' as defined under Executive Order
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, EPA must evaluate the
environmental health or safety effects of the planned rule on children;
and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
EPA has determined that the proposed rule is not a covered
regulatory action because it is not economically significant and it
does not involve decisions based on environmental health or safety
risks. As a result, the proposed rule is not subject to the
requirements of the Executive Order.
Executive Order 12866
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) a
significant regulatory action is subject to OMB review and the
requirements of the Executive Order. The Order defines ``significant
regulatory action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is a ``significant regulatory
action'' under the terms of Executive Order 12866 because the
Performance Partnership Grant authority is a new type of grant
authority and therefore raises novel policy issues. As such, this
action was submitted to the Office of Management and Budget (OMB) for
review. Changes made in response to OMB suggestions and recommendations
are documented in the public record.
Paperwork Reduction Act
In keeping with the requirements of the Paperwork Reduction Act
(PRA), as amended, 44 U.S.C. 3501 et seq., the information collection
requirements contained in this rule have been approved by OMB under
information collection request number 0938.06 (OMB Control Number 2030-
0020) and Quality Assurance Specifications and Requirements information
request number 0866.05 (OMB Control Number 2080-033). This rule does
not contain any collection of information requirements beyond those
already approved. Since this action imposes no new or additional
information collection, reporting or record-keeping requirements
subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., no
information request will be submitted to the Office of Management and
Budget for review.
Executive Order 12875
Under Executive Order 12875, Enhancing Intergovernmental
Partnerships, EPA may not issue a regulation that is not required by
statute and that creates a mandate upon a State, local or tribal
government, unless the federal government provides the funds necessary
to pay the direct compliance costs incurred by those governments or EPA
consults with those governments. If EPA complies by consulting,
Executive Order 12875 requires EPA to provide to the Office of
Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and Tribal
governments, the nature of their concerns, any written communications
[[Page 40069]]
from the governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of State, local and Tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
This proposed rule does not create a mandate on State, local or
Tribal governments nor does it impose any enforceable duties on these
entities as it governs the award of financial assistance. Instead, this
proposed rule is designed to reduce the administrative burden
associated with grants for environmental programs. Accordingly, the
requirements of section 1(a) of Executive Order 12875 do not apply.
Executive Order 13084
Under Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian Tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the federal
government provides the funds necessary to pay the direct compliance
costs incurred by the Tribal governments. If a regulatory mandate is
necessary, EPA must provide to the Office of Management and Budget, in
a separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected Tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian Tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.''
This proposed rule does not affect the communities of Indian Tribal
governments, because environmental program grants to Tribes and
intertribal consortia are not covered in this rule; they are covered
under 40 CFR part 35, subpart B, published elsewhere in this Federal
Register. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply.
List of Subjects
40 CFR Part 35
Environmental protection, Administrative practice and procedures,
Evaluation of performance, Performance partnership grants, Requirements
for specific grant programs, Work plan requirements.
40 CFR Part 745
Environmental protection, Administrative practice and procedures,
Hazardous substances.
Dated: June 30, 1999.
Carol M. Browner,
Administrator.
For the reasons set forth in this preamble, title 40, chapter I of
the Code of Federal Regulations is proposed to be amended as follows:
PART 35--[AMENDED]
1. The authority citation for Part 35 is revised to read as
follows:
Authority: 42 U.S.C. 4368b unless otherwise noted.
2. Revise Sec. 35.001 to read as follows:
Sec. 35.001 Applicability.
This part codifies policies and procedures for financial assistance
awarded by the Environmental Protection Agency (EPA) to State,
interstate, and local agencies, Indian Tribes and Intertribal Consortia
for pollution abatement and control programs. These provisions
supplement the EPA general assistance regulations in 40 CFR part 31.
3. Revise Subpart A to read as follows:
Subpart A--Environmental Program Grants
All Grants--General
Sec.
35.100 Purpose of the subpart.
35.101 Environmental programs covered by the subpart.
35.102 Definition of terms.
Preparing an Application
35.104 Components of a complete application.
35.105 Time frame for submitting an application.
35.107 Work plans.
35.108 Budget period.
35.109 Consolidated grants.
EPA Action on Application
35.110 Time frame for EPA action.
35.111 Criteria for approving an application.
35.112 Factors considered in determining award amount.
35.113 Reimbursement for pre-award costs.
Post-Award Requirements
35.114 Amendments and other changes.
35.115 Evaluation of performance.
35.116 Direct implementation.
35.117 Unused funds.
35.118 Unexpended balances.
Performance Partnership Grants
35.130 Purpose of Performance Partnership Grants.
35.132 Requirements summary.
35.133 Programs eligible for inclusion.
35.134 Eligible recipients.
35.135 Activities eligible for funding.
5.136 Cost share requirements.
35.137 Application requirements.
35.138 Competitive grants.
Air Pollution Control (Section 105)
35.140 Purpose.
35.141 Definitions.
35.143 Allotment.
35.145 Maximum Federal share.
35.146 Maintenance of effort.
35.147 Minimum cost share for a Performance Partnership Grant.
35.148 Award limitations.
Water Pollution Control (Section 106)
35.160 Purpose.
35.161 Definition.
35.162 Basis for allotment.
35.165 Maintenance of effort.
35.168 Award limitations.
Public Water System Supervision (Section 1443(a))
35.170 Purpose.
35.172 Allotment.
35.175 Maximum Federal share.
35.178 Award limitations.
Underground Water Source Protection (Section 1443(b))
35.190 Purpose.
35.192 Basis for allotment.
35.195 Maximum Federal share.
35.198 Award limitation.
Hazardous Waste Management (Section 3011(a))
35.210 Purpose.
35.212 Basis for allotment.
35.215 Maximum Federal share.
35.218 Award limitation.
Pesticide Cooperative Enforcement (Section 23(a)(1))
35.230 Purpose.
35.232 Basis for allotment.
35.235 Maximum Federal share.
Pesticide Applicator Certification and Training (Section 23(a)(2))
35.240 Purpose.
35.242 Basis for allotment.
35.245 Maximum Federal share.
Pesticide Program Implementation (Section 23(a)(1))
35.250 Purpose.
35.251 Basis for allotment.
35.252 Maximum Federal share.
Nonpoint Source Management (Section 319(h))
35.260 Purpose.
35.265 Maximum Federal share.
35.266 Maintenance of effort.
35.268 Award limitations.
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Lead-Based Paint Program (Section 404(g))
35.270 Purpose.
35.272 Funding coordination.
State Indoor Radon Grants (Section 306)
35.290 Purpose.
35.292 Basis for allotment.
35.295 Maximum Federal share.
35.298 Award limitations.
Toxic Substances Compliance Monitoring (Section 28)
35.310 Purpose.
35.312 Competitive process.
35.315 Maximum Federal share.
35.318 Award limitation.
State Underground Storage Tanks (Section 2007(f)(2))
35.330 Purpose.
35.332 Basis for allotment.
35.335 Maximum Federal share.
Pollution Prevention Incentives for States (Section 6605)
35.340 Purpose.
35.342 Competitive process.
35.343 Definitions.
35.345 Eligible applicants.
35.348 Award limitation.
35.349 Maximum Federal share.
Water Quality Cooperative Agreements (Section 104(b)(3))
35.360 Purpose.
35.362 Competitive process.
35.364 Maximum Federal share.
Wetlands Development Grant Program (Section 104(b)(3))
35.380 Purpose.
35.382 Competitive process.
35.385 Maximum Federal share.
State Administration (Section 205(g))
35.400 Purpose.
35.402 Allotment.
35.405 Maintenance of effort.
35.408 Award limitations.
Water Quality Management Planning (Section 205(j)(2))
35.410 Purpose.
35.412 Allotment.
35.415 Maximum Federal share.
35.418 Award limitations.
Subpart A--Environmental Program Grants
Authority: 42 U.S.C. 7401 et seq.; 33 U.S.C. 1251 et seq.; 42
U.S.C. 300f et seq.; 42 U.S.C. 6901 et seq.; 7 U.S.C. 136 et seq.;
15 U.S.C. 2601 et seq.; 42 U.S.C. 13101 et seq.; Pub. L. 104-134,
110 Stat. 1321, 1321-299 (1996); Pub. L. 105-65, 111 Stat. 1344,
1373 (1997).
All Grants--General
Sec. 35.100 Purpose of the subpart.
This subpart establishes administrative requirements for grants
awarded to State, interstate, and local agencies and other entities for
the environmental programs listed in Sec. 35.101. This subpart
supplements requirements in EPA's general grant regulations found at 40
CFR part 31. Sections 35.100-35.118 contain administrative requirements
that apply to all environmental program grants included in this
subpart. Sections 35.130 through 35.418 contain requirements that apply
to specified environmental program grants. Many of these environmental
programs also have programmatic and technical requirements that are
published elsewhere in the Code of Federal Regulations.
Sec. 35.101 Environmental programs covered by the subpart.
(a) The requirements in this subpart apply to grants awarded for
the following programs:
(1) Performance partnership grants (Omnibus Consolidated
Rescissions and Appropriations Act of 1996, Public Law 104-134, 110
Stat. 1321, 1321-299 (1996) and Departments of Veterans Affairs and
Housing and Urban Development, and Independent Agencies Appropriations
Act, 1998, Public Law 105-65, 111 Stat. 1344, 1373 (1997)).
(2) Air pollution control (section 105 of the Clean Air Act).
(3) Water pollution control (section 106 of the Clean Water Act).
(4) Public water system supervision (section 1443(a) of the Safe
Drinking Water Act).
(5) Underground water source protection (section 1443(b) of the
Safe Drinking Water Act).
(6) Hazardous waste management (section 3011(a) of the Solid Waste
Disposal Act).
(7) Pesticide cooperative enforcement (section 23(a)(1) of the
Federal Insecticide, Fungicide, and Rodenticide Act).
(8) Pesticide applicator certification and training (section
23(a)(2) of the Federal Insecticide, Fungicide, and Rodenticide Act).
(9) Pesticide program implementation (section 23(a)(1) of the
Federal Insecticide, Fungicide, and Rodenticide Act).
(10) Nonpoint source management (sections 205(j)(5) and 319(h) of
the Clean Water Act).
(11) Lead-based paint program (section 404(g) of the Toxic
Substances Control Act).
(12) State indoor radon grants (section 306 of the Toxic Substances
Control Act).
(13) Toxic substances compliance monitoring (section 28 of the
Toxic Substances Control Act).
(14) State underground storage tanks (section 2007(f)(2) of the
Solid Waste Disposal Act).
(15) Pollution prevention incentives for states (section 6605 of
the Pollution Prevention Act of 1990).
(16) Water quality cooperative agreements (section 104(b)(3) of the
Clean Water Act).
(17) Wetlands development grants program (section 104(b)(3) of the
Clean Water Act).
(18) State administration of construction grant, permit, and
planning programs (section 205(g) of the Clean Water Act).
(19) Water quality management planning (section 205(j)(2) of the
Clean Water Act).
(b) Unless otherwise prohibited by statute or regulation, the
requirements in Sec. 35.100 through Sec. 35.118 of this subpart also
apply to grants under environmental programs established after this
subpart becomes effective if specified in Agency guidance for such
programs.
Sec. 35.102 Definitions of terms.
Terms are defined as follows when they are used in this subpart.
Allotment. EPA's calculation of the funds that may be available to
an eligible recipient for an environmental program grant. An allotment
is not an entitlement.
Budget period. The period specified in the grant agreement during
which the recipient may expend or obligate funds for the purposes
specified in the agreement.
Consolidated grant. A single grant made to a recipient
consolidating funds from more than one environmental grant program.
After the award is made, recipients must account for grant funds in
accordance with the funds' original environmental program sources.
Consolidated grants are not Performance Partnership Grants.
Environmental program. A program for which EPA awards grants under
the authorities listed in Sec. 35.101. The grants are subject to the
requirements of this subpart.
National program guidance. Guidance issued by EPA's National
Program Managers for establishing and maintaining effective
environmental programs. This guidance establishes national goals,
objectives, and priorities as well as the core performance measures and
other information to be used in monitoring progress. The guidance may
also set out specific environmental strategies, criteria for evaluating
programs, and other elements of program implementation.
Outcome. The environmental result, effect, or consequence that will
occur from carrying out an environmental program or activity that is
related to an
[[Page 40071]]
environmental or programmatic goal or objective. Outcomes must be
quantitative, and they may not necessarily be achievable during a grant
budget period. See ``output.''
Output. An environmental activity or effort and associated work
products related to an environmental goal or objective that will be
produced or provided over a period of time or by a specified date.
Outputs may be quantitative or qualitative but must be measurable
during a grant budget period. See ``outcome.''
Performance Partnership Agreement. A negotiated agreement signed by
the EPA Regional Administrator and an appropriate official of a State
agency and designated as a Performance Partnership Agreement. Such
agreements typically set out jointly developed goals, objectives, and
priorities; the strategies to be used in meeting them; the roles and
responsibilities of the State and EPA; and the measures to be used in
assessing progress. A Performance Partnership Agreement may be used as
all or part of a work plan for a grant if it meets the requirements for
a work plan set out in Sec. 35.107.
Performance Partnership Grant. A single grant combining funds from
more than one environmental program. A Performance Partnership Grant
may provide for administrative savings or programmatic flexibility to
direct grant resources where they are most needed to address public
health and environmental priorities (see also Sec. 35.130). Each
Performance Partnership Grant has a single, integrated budget and
recipients do not need to account for grant funds in accordance with
the funds' original environmental program sources.
Planning target. The amount of funds that the Regional
Administrator suggests a grant applicant consider in developing its
application, including the work plan, for an environmental program.
Regional supplemental guidance. Guidance to environmental program
applicants prepared by the Regional Administrator, based on the
national program guidance and specific regional and applicant
circumstances, for use in preparing a grant application.
Work plan commitments. The outputs and outcomes associated with
each work plan component, as established in the grant agreement.
Work plan component. A negotiated set or group of work plan
commitments established in the grant agreement. A work plan may have
one or more work plan components.
Preparing an Application
Sec. 35.104 Components of a complete application.
A complete application for an environmental program must:
(a) Meet the requirements in 40 CFR part 31, subpart B;
(b) Include a proposed work plan (Sec. 35.107); and
(c) Specify the environmental program and the amount of funds
requested.
Sec. 35.105 Time frame for submitting an application.
An applicant should submit a complete application to EPA at least
60 days before the beginning of the proposed budget period.
Sec. 35.107 Work plans.
(a) Bases for negotiating work plans. The work plan is negotiated
between the applicant and the Regional Administrator and reflects
consideration of national, regional, and State environmental and
programmatic needs and priorities.
(1) Negotiation considerations. In negotiating the work plan, the
Regional Administrator and applicant will consider such factors as
national program guidance; any regional supplemental guidance; goals,
objectives, and priorities proposed by the applicant; other jointly
identified needs or priorities; and the planning target.
(2) National program guidance. If an applicant proposes a work plan
that differs significantly from the goals and objectives, priorities,
or core performance measures in the national program guidance
associated with the proposed activities, the Regional Administrator
must consult with the appropriate National Program Manager before
agreeing to the work plan.
(3) Use of existing guidance. An applicant should base the grant
application on the national program guidance in place at the time the
application is being prepared.
(b) Work plan requirements.
(1) The work plan is the basis for the management and evaluation of
performance under the grant agreement.
(2) An approvable work plan must specify:
(i) The work plan components to be funded under the grant;
(ii) The estimated work years and funding amounts for each work
plan component;
(iii) The work plan commitments for each work plan component and a
time frame for their accomplishment;
(iv) A performance evaluation process and reporting schedule in
accordance with Sec. 35.115 of this subpart; and
(v) The roles and responsibilities of the recipient and EPA in
carrying out the work plan commitments.
(3) The work plan must be consistent with applicable federal
statutes, regulations, circulars, executive orders, and delegation or
authorization agreements.
(c) Performance Partnership Agreement as work plan. An applicant
may use a Performance Partnership Agreement or a portion of a
Performance Partnership Agreement as the work plan for an environmental
program grant if the portions of the Performance Partnership Agreement
that can serve as all or part of the grant work plan:
(1) Are clearly identified and distinguished from other portions of
the Performance Partnership Agreement; and
(2) Meet the requirements in Sec. 35.107(b).
Sec. 35.108 Budget period.
The Regional Administrator and applicant may negotiate the length
of the budget period for environmental program grants, subject to
limitations in appropriations acts.
Sec. 35.109 Consolidated grants.
(a) Any applicant eligible to receive funds from more than one
environmental program may submit an application for a consolidated
grant. For consolidated grants, an applicant prepares a single budget
and work plan covering all of the environmental programs included in
the application. The consolidated budget must identify each
environmental program to be included, the amount of each program's
funds, and the extent to which each program's funds support each work
plan component. Recipients of consolidated grants must account for
grant funds in accordance with the funds' environmental program
sources; funds included in a consolidated grant from a particular
environmental program may be used only for that program.
(b) Insular areas that choose to consolidate environmental program
grants may be exempted by the Regional Administrator from requirements
of this subpart in accordance with 48 U.S.C. 1469a.
EPA Action on Application
Sec. 35.110 Time frame for EPA action.
The Regional Administrator will review a complete application and
either approve, conditionally approve, or disapprove it within 60 days
of receipt. This period may be extended by
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mutual agreement between EPA and the applicant. The Regional
Administrator will award the funds for approved or conditionally
approved applications when the funds are available.
Sec. 35.111 Criteria for approving an application.
(a) The Regional Administrator may approve an application if he or
she determines, that:
(1) The application meets the requirements of this subpart and 40
CFR part 31;
(2) The application meets the requirements of all applicable
federal statutes, regulations, circulars, executive orders, and
delegation or authorization agreements;
(3) The proposed work plan complies with the requirements of
Sec. 35.107; and
(4) The achievement of the proposed work plan is feasible,
considering such factors as the applicant's existing circumstances,
past performance, program authority, organization, resources, and
procedures.
(b) If the Regional Administrator finds the application does not
satisfy the criteria in paragraph (a) of this section, the Regional
Administrator may either:
(1) Conditionally approve the application if only minor changes are
required, with grant conditions necessary to ensure compliance with the
criteria, or
(2) Disapprove the application in writing.
Sec. 35.112 Factors considered in determining award amount.
(a) After approving an application under Sec. 35.111, the Regional
Administrator will consider such factors as the applicant's allotment,
the extent to which the proposed work plan is consistent with EPA
guidance and mutually agreed upon priorities, and the anticipated cost
of the work plan relative to the proposed work plan components, to
determine the amount of funds to be awarded.
(b) If the Regional Administrator finds the requested level of
funding is not justified or that the work plan does not comply with the
requirements of Sec. 35.107, he or she will attempt to negotiate a
resolution of the issues with the applicant before determining the
award amount. The Regional Administrator may determine that the award
amount will be less than the amount allotted or requested.
Sec. 35.113 Reimbursement for pre-award costs.
(a) Notwithstanding the requirements of 40 CFR 31.23(a) and OMB
cost principles, EPA may reimburse recipients for pre-award costs
incurred from the beginning of the budget period established in the
grant agreement if such costs would have been allowable if incurred
after the award and the recipients submitted complete grant
applications before the beginning of the budget period. Such costs must
be identified in the grant application EPA approves.
(b) The applicant incurs pre-award costs at its own risk. EPA is
under no obligation to reimburse such costs unless they are included in
an approved grant award.
Post-Award Requirements
Sec. 35.114 Amendments and other changes.
The provisions of 40 CFR 31.30 do not apply to environmental
program grants awarded under this subpart. The following provisions
govern amendments and other changes to grant work plans and budgets
after the work plan is negotiated and a grant awarded.
(a) Changes requiring prior approval. Recipients may make
significant changes in work plan commitments only after obtaining the
Regional Administrator's prior written approval. The regional office,
in consultation with the recipient, will document these revisions
including budgeted amounts associated with the revisions.
(b) Changes requiring approval. Recipients must request, in
writing, grant amendments for changes requiring increases in
environmental program grant amounts and extensions of the budget
period. Recipients may begin implementing a change before the amendment
has been approved by EPA, but do so at their own risk. If EPA approves
the change, EPA will issue a grant amendment. EPA will notify the
recipient in writing if the change is disapproved.
(c) Changes not requiring approval. Other than those situations
described in paragraphs (a) and (b) of this section, recipients do not
need to obtain approval for changes, including changes in grant work
plans, budgets, or other components of grant agreements, unless the
Regional Administrator determines approval requirements should be
imposed on a specific recipient for a specified period of time.
(d) OMB cost principles. The Regional Administrator may waive in
writing approval requirements for specific recipients and costs
contained in OMB cost principles.
(e) Changes in consolidated grants. Recipients of consolidated
grants under Sec. 35.109 may not transfer funds among environmental
programs.
(f) Subgrants. Subgrantees must request required approvals in
writing from the recipient and the recipient shall approve or
disapprove the request in writing. A recipient will not approve any
work plan or budget revision which is inconsistent with the purpose or
terms and conditions of the federal grant to the recipient. If the
revision requested by the subgrantee would result in a significant
change to the recipient's approved grant which requires EPA approval,
the recipient will obtain EPA's approval before approving the
subgrantee's request.
Sec. 35.115 Evaluation of performance.
(a) Joint evaluation process. The applicant and the Regional
Administrator will develop a process for jointly evaluating and
reporting progress and accomplishments under the work plan. A
description of the evaluation process and a reporting schedule must be
included in the work plan. The schedule must require the recipient to
report at least annually and must satisfy the requirements for progress
reporting under 40 CFR 31.40(b).
(b) Elements of the evaluation process. The evaluation process must
provide for:
(1) A discussion of accomplishments as measured against work plan
commitments;
(2) A discussion of the cumulative effectiveness of the work
performed under all work plan components;
(3) A discussion of existing and potential problem areas; and
(4) Suggestions for improvement, including, where feasible,
schedules for making improvements.
(c) Resolution of issues. If the joint evaluation reveals that the
recipient has not made sufficient progress under the work plan, the
Regional Administrator and the recipient will negotiate a resolution
that addresses the issues. If the issues cannot be resolved through
negotiation, the Regional Administrator may take appropriate measures
under 40 CFR 31.43. The recipient may request review of the Regional
Administrator's decision under the dispute processes in 40 CFR 31.70.
(d) Evaluation reports. The Regional Administrator will ensure that
the required evaluations are performed according to the negotiated
schedule and that copies of evaluation reports are placed in the
official files and provided to the recipient.
Sec. 35.116 Direct implementation.
If funds remain in a State's allotment for an environmental program
grant either after grants for that environmental program have been made
or because no grant was made, the Regional Administrator may, subject
to any
[[Page 40073]]
limitations contained in appropriation acts, use all or part of the
funds to support a federal program required by law in the State in the
absence of an acceptable State program.
Sec. 35.117 Unused funds.
If funds for an environmental program grant remain in a State's
allotment either after an initial environmental program grant has been
made or because no grant was made, and the Regional Administrator does
not use the funds under Sec. 35.116 of this subpart, the Regional
Administrator may award the funds to any eligible recipient in the
region, including the same State or an Indian Tribe or Tribal
consortium, for the same environmental program or for a Performance
Partnership Grant, subject to any limitations in appropriation acts.
Sec. 35.118 Unexpended balances.
Subject to any relevant provisions of law, if a recipient's
Financial Status Report shows unexpended balances, the Regional
Administrator will deobligate the unexpended balances and make them
available, to either the same recipient in the same region or other
eligible recipients, including Indian Tribes and Tribal Consortia, for
environmental program grants.
Performance Partnership Grants
Sec. 35.130 Purpose of Performance Partnership Grants.
(a) Purpose of section. Sections 35.130 through 35.138 govern
Performance Partnership Grants to States and interstate agencies
authorized in the Omnibus Consolidated Rescissions and Appropriations
Act of 1996, (Pub. L. 104-134, 110 Stat. 1321, 1321-299 (1996)) and the
Departments of Veterans Affairs and Housing and Urban Development, and
Independent Agencies Appropriations Act, 1998, (Pub. L. 105-65, 111
Stat. 1344, 1373 (1997).
(b) Purpose of program. Performance Partnership Grants enable
States and interstate agencies to combine funds from more than one
environmental program grant into a single grant with a single budget.
Recipients do not need to account for Performance Partnership Grant
funds in accordance with the funds' original environmental program
sources; they need only account for total Performance Partnership Grant
expenditures subject to the requirements of this subpart. The
Performance Partnership Grant program is designed to:
(1) Strengthen partnerships between EPA and State and interstate
agencies through joint planning and priority-setting and better
deployment of resources;
(2) Provide State and interstate agencies with flexibility to
direct resources where they are most needed to address environmental
and public health priorities;
(3) Link program activities more effectively with environmental and
public health goals and program outcomes;
(4) Foster development and implementation of innovative approaches
such as pollution prevention, ecosystem management, and community-based
environmental protection strategies; and
(5) Provide savings by streamlining administrative requirements.
Sec. 35.132 Requirements summary.
Applicants and recipients of Performance Partnership Grants must
meet:
(a) The requirements in Secs. 35.100 to 35.118, which apply to all
environmental program grants, including Performance Partnership Grants;
and
(b) The requirements in Secs. 35.130 to 35.138, which apply only to
Performance Partnership Grants.
Sec. 35.133 Programs eligible for inclusion.
(a) Eligible programs. Except as provided in paragraph (b) of this
section, the environmental programs eligible, in accordance with
appropriation acts, for inclusion in a Performance Partnership Grant
are listed in Sec. 35.101(a)(2) through (17). (Funds available from the
section 205(g) State Administration Grants program (Sec. 35.100(b)(18))
and the Water Quality Management Planning Grant program
(Sec. 35.100(b)(19)) may not be included in Performance Partnership
Grants.)
(b) Changes in eligible programs. The Administrator may, in
guidance or regulation, describe subsequent additions, deletions, or
changes to the list of environmental programs eligible for inclusion in
Performance Partnership Grants.
Sec. 35.134 Eligible recipients.
(a) Eligible agencies. All State agencies (including environmental,
health, agriculture, and other agencies) and interstate agencies
eligible to receive funds from more than one environmental program may
receive Performance Partnership Grants.
(b) Designated agency. A State agency must be designated by a
Governor, State legislature, or other authorized State process to
receive grants under each of the environmental programs to be combined
in the Performance Partnership Grant. If it is not the designated
agency for a particular grant program to be included in the Performance
Partnership Grant, the State agency must have an agreement with the
State agency that does have the designation regarding how the funds
will be shared between the agencies.
(c) Programmatic requirements. A State or interstate agency must
meet the requirements for award of each of the environmental programs
from which funds are combined in the agency's Performance Partnership
Grant, except the requirements at Secs. 35.268(b) and (c), 35.272, and
35.298 (c),(d),(e), and (g). These requirements can be found in this
regulation beginning at Sec. 35.140.
Sec. 35.135 Activities eligible for funding.
(a) A recipient may use a Performance Partnership Grant, subject to
the requirements of paragraph (c) of this section, to fund any activity
that is eligible for funding under at least one of the environmental
programs from which funds are combined into the grant.
(b) A recipient may also use a Performance Partnership Grant to
fund multi-media activities that are eligible in accordance with
paragraph (a) of this section and have been agreed to by the Regional
Administrator. Such activities may include multi-media permitting and
enforcement and pollution prevention, ecosystem management, community-
based environmental protection, and other innovative approaches.
(c) A recipient may not use a Performance Partnership Grant to fund
activities eligible only under a specific environmental program grant
unless some or all of the recipient's allotted funds for that program
have been included in the Performance Partnership Grant.
Sec. 35.136 Cost share requirements.
(a) An applicant for a Performance Partnership Grant must provide a
non-federal cost share that is not less than the sum of the minimum
non-federal cost share required under each of the environmental
programs that are combined in the Performance Partnership Grant. Cost
share requirements for the individual environmental programs are
described in Secs. 35.140 to 35.418.
(b) When an environmental program included in the Performance
Partnership Grant has both a matching and maintenance of effort
requirement, the greater of the two amounts will be used to calculate
the minimum cost share attributed to that environmental program.
[[Page 40074]]
Sec. 35.137 Application requirements.
(a) An application for a Performance Partnership Grant must
contain:
(1) A list of the environmental programs and the amount of funds
from each program to be combined in the Performance Partnership Grant;
(2) A consolidated budget;
(3) A consolidated work plan that addresses each program being
combined in the grant and that meets the requirements of Sec. 35.107;
and,
(4) A rationale, commensurate with the extent of any programmatic
flexibility (i.e., increased effort in some programs and decreased
effort in others) indicated in the work plan, that explains the basis
for the applicant's priorities, the expected environmental or other
benefits to be achieved, and the anticipated impact on any
environmental programs or program areas proposed for reduced effort.
(b) The applicant and the Regional Administrator will negotiate
regarding the information necessary to support the rationale for
programmatic flexibility required in paragraph (a)(4) of this section.
The rationale may be supported by information from a variety of
sources, including a Performance Partnership Agreement or comparable
negotiated document, the evaluation report required in Sec. 35.125, and
other environmental and programmatic data sources.
(c) A State agency seeking programmatic flexibility is encouraged
to include a description of efforts to involve the public in developing
the State agency's priorities.
Sec. 35.138 Competitive grants.
(a) Some environmental program grants are awarded through a
competitive process. An applicant and the Regional Administrator may
agree to add funds available for a competitive grant to a Performance
Partnership Grant. If this is done, the work plan commitments that
would have been included in the competitive grant must be included in
the Performance Partnership Grant work plan. After the funds have been
added to the Performance Partnership Grant, the recipient does not need
to account for these funds in accordance with the funds' original
environmental program source.
(b) If the projected completion date for competitive grant work
plan commitments added to a Performance Partnership Grant is after the
end of the Performance Partnership Grant budget period, the Regional
Administrator and the applicant will agree in writing as to how the
work plan commitments will be carried over into future work plans.
Air Pollution Control (Section 105)
Sec. 35.140 Purpose.
(a) Purpose of section. Sections 35.140 through 35.148 govern Air
Pollution Control Grants to State, local, interstate, or intermunicipal
air pollution control agencies (as defined in section 302(b) of the
Clean Air Act) authorized under section 105 of the Act.
(b) Purpose of program. Air Pollution Control Grants are awarded to
administer programs that prevent and control air pollution or implement
national ambient air quality standards.
(c) Program regulations. Refer to 40 CFR parts 49, 50, 51, 52, 58,
60, 61, 62, and 81 for associated program regulations.
Sec. 35.141 Definitions.
In addition to the definitions in Sec. 35.102, the following
definitions apply to the Clean Air Act's section 105 grant program:
Implementing means any activity related to planning, developing,
establishing, carrying-out, improving, or maintaining programs for the
prevention and control of air pollution or implementation of national
primary and secondary ambient air quality standards.
Nonrecurrent expenditures are those expenditures which are shown by
the recipient to be of a nonrepetitive, unusual, or singular nature
such as would not reasonably be expected to recur in the foreseeable
future. Costs categorized as nonrecurrent must be approved in the grant
agreement or an amendment thereto.
Recurrent expenditures are those expenses associated with the
activities of a continuing environmental program. All expenditures are
considered recurrent unless justified by the applicant as nonrecurrent
and approved as such in the grant award or an amendment thereto.
Sec. 35.143 Allotment.
(a) The Administrator allots air pollution control funds under
section 105 of the Clean Air Act based on a number of factors,
including:
(1) Population;
(2) The extent of actual or potential air pollution problems; and
(3) The financial need of each agency.
(b) The Regional Administrator shall allot to a State not less than
one-half of one percent nor more than 10 percent of the annual section
105 grant appropriation.
(c) The Administrator may award funds on a competitive basis.
Sec. 35.145 Maximum Federal share.
(a) The Regional Administrator may provide air pollution control
agencies, as defined in section 302(b) of the Clean Air Act, up to
three-fifths of the approved costs of implementing programs for the
prevention and control of air pollution or implementing national
primary and secondary ambient air quality standards.
(b) Subject to the conditions set forth below, the Regional
Administrator may, at the request of the Governor of a State or the
Governor's designee, or in the case of a local jurisdiction, the
authorized local official, waive, for a one year period, all or a
portion of the cost-sharing requirement of paragraph (a) of this
section. The Regional Administrator may renew the waiver for no more
than two years so long as the total waiver period does not exceed three
years from the approval date of a State's permit program required under
section 502 of the Clean Air Act.
(1) The waiver may be approved on a case-by-case basis and only
when a State or local government's non-federal contribution is reduced
below the required two-fifths minimum as a result of the redirection of
its non-federal air resources to meet the requirements of section
502(b) of the Act.
(2) In applying for a waiver, the Governor or the Governor's
designee, or in the case of a local jurisdiction, the authorized local
official, must:
(i) Describe the extent of fiscal and programmatic impact on the
agency's section 105 program as a result of the transfer of non-federal
resources to support the program approved by EPA under section 502(b)
of the Clean Air Act;
(ii) Provide documentation of the amount of the cost-sharing
shortfall and the programmatic activities that would not be able to be
carried out if the section 105 grant is reduced or not awarded as a
result of a State or local air pollution control agency's inability to
meet the cost-sharing requirements;
(iii) Assure that there is no source of funding that may reasonably
be used to meet the cost-sharing requirement for the affected grant
budget period; and
(iv) Assure that during the section 105 grant period the non-
federal share of the program costs will not be reduced in an amount
greater than that authorized by the waiver.
Sec. 35.146 Maintenance of effort.
(a) To receive funds under section 105, an agency must expend
annually, for recurrent section 105 program expenditures, an amount of
non-federal funds at least equal to such expenditures during the
preceding fiscal year.
(b) In order to award grants in a timely manner each fiscal year,
the
[[Page 40075]]
Regional Administrator shall compare an agency's proposed expenditure
level, as detailed in the agency's grant application, to that agency's
expenditure level in the second preceding fiscal year.
(c) The Regional Administrator may grant an exception to 40 CFR
35.146(a) if, after notice and opportunity for a public hearing, the
Regional Administrator determines that the reduction is attributable to
a non-selective reduction of the programs of all executive branch
agencies of the applicable unit of government.
(d) The Regional Administrator will not award section 105 funds
unless the applicant provides assurance that the grant will not
supplant non-federal funds that would otherwise be available for
maintaining the section 105 program.
Sec. 35.147 Minimum cost share for a Performance Partnership Grant.
(a)(1) To calculate the cost share for a Performance Partnership
Grant (see Secs. 35.130 through 35.138) that includes section 105
funds, the minimum cost share contribution for the section 105 program
will be the match requirement set forth in Sec. 35.145 or the
maintenance of effort established under Sec. 35.146, whichever is
greater.
(2) The maintenance of effort established under Sec. 35.146 of this
subpart in the first year that the section 105 grant is included in a
Performance Partnership Grant will be the maintenance of effort amount
used to calculate the cost share in subsequent years in which the
section 105 funds are included in a Performance Partnership Grant.
(b) If an air pollution control agency includes section 105 air
program funding in a Performance Partnership Grant and subsequently
withdraws that program from the grant, the maintenance of effort amount
for the section 105 grant in the first year after the grant is
withdrawn will be equal to the amount required in the year before the
agency included the section 105 program in the Performance Partnership
Grant.
(c) The Regional Administrator may approve an exception from
paragraph (b) of this section if the Regional Administrator determines
that exceptional circumstances justify a reduction in the maintenance
of effort, including when an air pollution control agency reduces
section 105 funding as part of a non-selective reduction of the
programs of all executive branch agencies of the applicable unit of
government.
Sec. 35.148 Award limitations.
(a) The Regional Administrator will not award section 105 funds to
an interstate or intermunicipal agency:
(1) That does not provide assurance that it can develop a
comprehensive plan for the air quality control region which includes
representation of appropriate State, interstate, local, Tribal, and
international interests; and
(2) Without consulting with the appropriate official designated by
the Governor or Governors of the State or States affected or the
appropriate official of any affected Indian Tribe or Tribes.
(b) The Regional Administrator will not disapprove an application
for or terminate or annul a section 105 grant without prior notice and
opportunity for a public hearing in the affected State or States.
Water Pollution Control (Section 106)
Sec. 35.160 Purpose.
(a) Purpose of section. Sections 35.160 through 35.168 govern Water
Pollution Control Grants to State and interstate agencies (as defined
in section 502 of the Clean Water Act) authorized under section 106 of
the Clean Water Act.
(b) Purpose of program. Water Pollution Control Grants are awarded
to assist in administering programs for the prevention, reduction, and
elimination of water pollution, including programs for the development
and implementation of ground-water protection strategies. Some of these
activities may also be eligible for funding under sections 104(b)(3)
(Water Quality Cooperative Agreements and Wetlands Development Grants),
205(j)(2) (Water Quality Management Planning), and section 205(g)
(State Administration Grants) of the Clean Water Act. (See
Secs. 35.160, 35.360, 35.380, 35.400, and 35.410.)
(c) Associated program requirements. Program requirements for water
quality planning and management activities are provided in 40 CFR part
130.
Sec. 35.161 Definition.
Recurrent expenditures are those expenditures associated with the
activities of a continuing environmental program. All expenditures,
except those for equipment purchases of $5,000 or more, are considered
recurrent unless justified by the applicant as nonrecurrent and
approved as such in the grant award or an amendment thereto.
Sec. 35.162 Basis for allotment.
The Administrator allots funds for Water Pollution Control Grants
to States and interstate agencies based on the extent of the pollution
problems in the respective States.
Sec. 35.165 Maintenance of effort.
To receive section 106 funds, a State or interstate agency must
expend annually for recurrent section 106 program expenditures an
amount of non-federal funds at least equal to expenditures during the
fiscal year ending June 30, 1971.
Sec. 35.168 Award limitations.
(a) The Regional Administrator may award section 106 funds to a
State only if:
(1) The State monitors and compiles, analyzes, and reports water
quality data as described in section 106(e)(1) of the Clean Water Act;
(2) The State has authority comparable to that in section 504 of
the Clean Water Act and adequate contingency plans to implement such
authority;
(3) There is no federally assumed enforcement as defined in section
309(a)(2) of the Clean Water Act in effect with respect to the State
agency; and
(4) The State's work plan shows that the activities to be funded
are coordinated, as appropriate, with activities proposed for funding
under sections 205 (g) and (j) of the Clean Water Act.
(5) The State filed with the Administrator within one hundred and
twenty days after October 18, 1972, a summary report of the current
status of the State pollution control program, including the criteria
used by the State in determining priority of treatment works.
(b) The Regional Administrator may award section 106 funds to an
interstate agency only if:
(1) The interstate agency filed with the Administrator within one
hundred and twenty days after October 18, 1972, a summary report of the
current status of the State pollution control program, including the
criteria used by the State in determining priority of treatment works.
(2) There is no federally assumed enforcement as defined in section
309(a)(2) of the Clean Water Act in effect with respect to the
interstate agency.
Public Water System Supervision (Section 1443(a))
Sec. 35.170 Purpose.
(a) Purpose of section. Sections 35.170 through 35.178 govern
Public Water System Supervision Grants to States (as defined in section
1401(13)(A) of the
[[Page 40076]]
Safe Drinking Water Act) authorized under section 1443(a) of the Act.
(b) Purpose of program. Public Water System Supervision Grants are
awarded to carry out public water system supervision programs including
implementation and enforcement of the requirements of the Act that
apply to public water systems.
(c) Associated program regulations. Associated program regulations
are found in 40 CFR parts 141, 142, and 143.
Sec. 35.172 Allotment.
(a) Basis for allotment. The Administrator allots funds for grants
to support States' Public Water System Supervision programs based on
each State's population, geographic area, numbers of community and non-
community water systems, and other relevant factors.
(b) Allotment limitation. No State, except American Samoa, Guam,
the Virgin Islands, and the Commonwealth of the Northern Mariana
Islands, shall be allotted less than $334,500 (which is one percent of
the FY 1989 appropriation).
Sec. 35.175 Maximum Federal share.
The Regional Administrator may provide a maximum of 75 percent of
the State's approved work plan costs.
Sec. 35.178 Award limitations.
(a) Initial Grants: The Regional Administrator will not make an
initial award unless the applicant has an approved Public Water System
Supervision program or agrees to establish an approvable program within
one year of the initial award.
(b) Subsequent Grants: The Regional Administrator will not award a
grant to a State after the initial award unless the applicant has
assumed and maintained primary enforcement responsibility for the
State's Public Water System Supervision program.
Underground Water Source Protection (Section 1443(b))
Sec. 35.190 Purpose.
(a) Purpose of section. Sections 35.190 through 35.198 govern
Underground Water Source Protection Grants to States (as defined in
section 1401(13)(A) of the Safe Drinking Water Act) authorized under
section 1443(b) of the Act.
(b) Purpose of program. The Underground Water Source Protection
Grants are awarded to carry out underground water source protection
programs.
(c) Associated program regulations. Associated program regulations
are found in 40 CFR parts 124, 144, 145, 146, and 147.
Sec. 35.192 Basis for allotment.
The Administrator allots funds for grants to support States'
underground water source protection programs based on such factors as
population, geographic area, extent of underground injection practices,
and other relevant factors.
Sec. 35.195 Maximum Federal share.
The Regional Administrator may provide a maximum of seventy-five
percent of a State's approved work plan costs.
Sec. 35.198 Award limitation.
The Regional Administrator will only award section 1443(b) funds to
States that have primary enforcement responsibility for the underground
water source protection program.
Hazardous Waste Management (Section 3011(a))
Sec. 35.210 Purpose.
(a) Purpose of section. Sections 35.210 through 35.218 govern
Hazardous Waste Management Grants to States (as defined in section 1004
of the Solid Waste Disposal Act) under section 3011(a) of the Act.
(b) Purpose of program. Hazardous Waste Management Grants are
awarded to assist States in the development and implementation of
authorized State hazardous waste management programs.
(c) Associated program regulations. Associated program regulations
are at 40 CFR part 124, subparts B, E, and F; 40 CFR parts 260 through
266; 40 CFR parts 268 through 273; and 40 CFR part 279.
Sec. 35.212 Basis for allotment.
The Administrator allots funds for Hazardous Waste Management
Grants under section 3011(b) of the Solid Waste Disposal Act based on
factors including:
(a) The extent to which hazardous waste is generated, transported,
treated, stored, and disposed of in the State;
(b) The extent to which human beings and the environment in the
State are exposed to such waste, and;
(c) Other factors the Administrator deems appropriate.
Sec. 35.215 Maximum Federal share.
The Regional Administrator may provide up to 75 percent of the
approved work plan costs.
Sec. 35.218 Award limitation.
The Regional Administrator will not award Hazardous Waste
Management Grants to a State with interim or final hazardous waste
authorization unless the applicant is the lead agency designated in the
authorization agreement.
Pesticide Cooperative Enforcement (Section 23(a)(1))
Sec. 35.230 Purpose.
(a) Purpose of section. Sections 35.230 through 35.235 govern
Pesticide Enforcement Cooperative Agreements to States (as defined in
section 2 of Federal Insecticide, Fungicide, and Rodenticide Act) under
section 23(a)(1) of the Act.
(b) Purpose of program. Pesticides Enforcement Cooperative
Agreements are awarded to assist States to implement pesticide
enforcement programs.
(c) Program regulations. Associated program regulations are at 40
CFR parts 150 through 189 and 19 CFR part 12.
Sec. 35.232 Basis for allotment.
(a) Factors for FIFRA enforcement program funding. The factors
considered in allotment of funds for enforcement of FIFRA are:
(1) The State's population,
(2) The number of pesticide-producing establishments,
(3) The numbers of certified private and commercial pesticide
applicators,
(4) The number of farms and their acreage, and
(5) As appropriate, the State's potential farm worker protection
concerns.
(b) Final allotments. Final allotments are negotiated between each
State and the appropriate Regional Administrator.
Sec. 35.235 Maximum Federal share.
The Regional Administrator may provide up to 100 percent of the
approved work plan costs.
Pesticide Applicator Certification and Training (Section 23(a)(2))
Sec. 35.240 Purpose.
(a) Purpose of section. Sections 35.240 through 35.245 govern
Pesticide Applicator Certification and Training Grants to States (as
defined in section 2 of Federal Insecticide, Fungicide, and Rodenticide
Act) under section 23(a)(2) of the Act.
(b) Purpose of program. Pesticide Applicator Certification and
Training Grants are awarded to train and certify restricted use
pesticide applicators.
(c) Associated program regulations. Associated program regulations
are found in 40 CFR parts 162, 170, and 171.
Sec. 35.242 Basis for allotment.
The Regional Administrator considers two factors in allotting
pesticides
[[Page 40077]]
applicator certification and training funds:
(a) The number of farms in each State; and
(b) The numbers of private and commercial applicators requiring
certification and recertification in each State.
Sec. 35.245 Maximum Federal share.
The Regional Administrator may provide up to 50 percent of the
approved work plan costs.
Pesticide Program Implementation (Section 23(a)(1))
Sec. 35.250 Purpose.
(a) Purpose of section. Sections 35.250 through 35.259 govern
Pesticide Program Implementation Cooperative Agreements to States (as
defined in section 2 of Federal Insecticide, Fungicide, and Rodenticide
Act) under section 23(a)(1) of the Act.
(b) Purpose of program. Pesticide Program Implementation
Cooperative Agreements are awarded to assist States to develop and
implement pesticide programs, including programs that protect farm
workers, groundwater, and endangered species from pesticide risks and
for other pesticide management programs designated by the
Administrator.
(c) Program regulations. Associated program regulations are at 40
CFR parts 150 through 189 and 19 CFR part 12.
Sec. 35.251 Basis for allotment.
(a) Factors for pesticide program implementation funding. The
factors considered in allotment of funds for pesticide program
implementation are based upon potential ground water, endangered
species, and worker protection concerns in each State relative to other
States and on other factors the Administrator deems appropriate for
these or other pesticide program implementation activities.
(b) Final allotments. Final allotments are negotiated between each
State and the appropriate Regional Administrator.
Sec. 35.252 Maximum Federal share.
The Regional Administrator may provide up to 100 percent of the
approved work plan costs.
Nonpoint Source Management (Section 319(h))
Sec. 35.260 Purpose.
(a) Purpose of section. Sections 35.260 through 35.268 govern
Nonpoint Source Management Grants to States (as defined in section 502
of the Clean Water Act) authorized under section 319 of the Act.
(b) Purpose of program. Nonpoint Source Management Grants may be
awarded for the implementation of EPA-approved nonpoint source
management programs, including ground-water quality protection
activities, that will advance the implementation of a comprehensive
approved nonpoint source management program.
Sec. 35.265 Maximum Federal share.
The Regional Administrator may provide up to 60 percent of the
approved work plan costs in any fiscal year. The non-federal share of
costs must be provided from non-federal sources.
Sec. 35.266 Maintenance of effort.
To receive section 319 funds in any fiscal year, a State must agree
to maintain its aggregate expenditures from all other sources for
programs for controlling nonpoint pollution and improving the quality
of the State's waters at or above the average level of such
expenditures in Fiscal Years 1985 and 1986.
Sec. 35.268 Award limitations.
The following limitations apply to funds appropriated and awarded
under section 319(h) of the Act in any fiscal year.
(a) Award amount. The Regional Administrator will award no more
than 15 percent of the amount appropriated to carry out section 319(h)
of the Act to any one State. This amount includes any grants to any
local public agency or organization with authority to control pollution
from nonpoint sources in any area of the State.
(b) Financial assistance to persons. States may use funds for
financial assistance to persons only to the extent that such assistance
is related to the cost of demonstration projects.
(c) Administrative costs. Administrative costs in the form of
salaries, overhead, or indirect costs for services provided and charged
against activities and programs carried out with these funds shall not
exceed 10 percent of the funds the State receives in any fiscal year.
The cost of implementing enforcement and regulatory activities,
education, training, technical assistance, demonstration projects, and
technology transfer programs are not subject to this limitation.
(d) Requirements. The Regional Administrator will not award section
319(h) funds to a State unless:
(1) Approved assessment report. EPA has approved the State's
assessment report on nonpoint sources, prepared in accordance with
section 319(a) of the Act;
(2) Approved State management program. EPA has approved the State's
management program for nonpoint sources, prepared in accordance with
section 319(b) of the Act;
(3) Progress on reducing pollutant loadings. The Regional
Administrator determines that the State made satisfactory progress in
the preceding fiscal year in meeting its schedule for achieving
implementation of best management practices to reduce pollutant
loadings from categories of nonpoint sources, or particular nonpoint
sources, designated in the State's management program. The State must
have developed this schedule in accordance with section 319(b)(2)(C) of
the Act;
(4) Activity and output descriptions. The work plan briefly
describes each significant category of nonpoint source activity and the
work plan commitments to be produced for each category; and
(5) Significant watershed projects. For watershed projects whose
costs exceed $50,000, the work plan also contains:
(i) A brief synopsis of the watershed implementation plan outlining
the problem(s) to be addressed;
(ii) The project's goals and objectives; and
(iii) The performance measures or environmental indicators that
will be used to evaluate the results of the project.
Lead-Based Paint Program (Section 404(g))
Sec. 35.270 Purpose.
(a) Purpose of section. Sections 35.270 through 35.278 govern Lead-
Based Paint Program Grants to States (as defined in section 3 of the
Toxic Substances Control Act), under section 404(g) of the Act.
(b) Purpose of program. Lead-Based Paint Program Grants are awarded
to develop and carry out authorized programs to ensure that individuals
employed in lead-based paint activities are properly trained; that
training programs are accredited; and that contractors employed in such
activities are certified.
(c) Associated program regulations. Associated program regulations
are found in 40 CFR part 745.
Sec. 35.272 Funding coordination.
Recipients must use the lead-based paint program funding in a way
that complements any related assistance they receive from other federal
sources for lead-based paint activities.
State Indoor Radon Grants (Section 306)
Sec. 35.290 Purpose.
(a) Purpose of section. Sections 35.290 through 35.298 govern
Indoor Radon
[[Page 40078]]
Grants to States (as defined in section 3 of the Toxic Substances
Control Act, which include territories and the District of Columbia)
under section 306 of the Toxic Substances Control Act.
(b) Purpose of program. (1) State Indoor Radon Grants are awarded
to assist States with the development and implementation of programs
that assess and mitigate radon and that aim at reducing radon health
risks. State Indoor Radon Grant funds may be used for the following
eligible activities:
(i) Survey of radon levels, including special surveys of geographic
areas or classes of buildings (such as public buildings, school
buildings, high-risk residential construction types);
(ii) Development of public information and education materials
concerning radon assessment, mitigation, and control programs;
(iii) Implementation of programs to control radon on existing and
new structures;
(iv) Purchase by the State of radon measurement equipment and
devices;
(v) Purchase and maintenance of analytical equipment connected to
radon measurement and analysis, including costs of calibration of such
equipment;
(vi) Payment of costs of Environmental Protection Agency-approved
training programs related to radon for permanent State or local
employees;
(vii) Payment of general overhead and program administration costs
in accordance with Sec. 35.298(d);
(viii) Development of a data storage and management system for
information concerning radon occurrence, levels, and programs;
(ix) Payment of costs of demonstration of radon mitigation methods
and technologies as approved by EPA, including State participation in
the Environmental Protection Agency Home Evaluation Program; and
(x) A toll-free radon hotline to provide information and technical
assistance.
(2) States may use grant funds to assist local governments in
implementation of activities eligible for assistance under paragraphs
(b)(1)(ii), (iii), and (vi) of this section.
(3) In implementing paragraphs (b)(1)(iv) and (ix) of this section,
a State should make every effort, consistent with the goals and
successful operation of the State radon program, to give preference to
low-income persons.
(4) Recipients may not use State Radon Program Grant funds to cover
the costs of proficiency rating programs under section 305(a)(2) of the
Act.
Sec. 35.292 Basis for allotment.
(a) The Regional Administrator will allot State Indoor Radon Grant
funds based on the criteria in EPA Guidance in accordance with section
306(d) and (e) of the Toxic Substances Control Act.
(b) No State may receive a State Indoor Radon Grant in excess of 10
percent of the total appropriated amount made available each fiscal
year.
Sec. 35.295 Maximum Federal share.
The Regional Administrator may provide State agencies up to 50
percent of the approved costs for the development and implementation of
radon program activities.
Sec. 35.298 Award limitations.
(a) The Regional Administrator shall not include State Indoor Radon
funds in a Performance Partnership Grant awarded to another State
Agency without consulting with the State Agency which has the primary
responsibility for radon programs as designated by the Governor of the
affected State.
(b) No grant may be made in any fiscal year to a State which in the
preceding fiscal year did not satisfactorily implement the activities
funded by the grant in the preceding fiscal year.
(c) The costs of radon measurement equipment or devices (see
Sec. 35.290(b)(1)(iv)) and demonstration of radon mitigation, methods,
and technologies (see Sec. 35.290(b)(1)(ix)) shall not, in the
aggregate, exceed 50 percent of a State's radon grant award in a fiscal
year.
(d) The costs of general overhead and program administration (see
Sec. 35.290(b)(1)(vii)) of a State Indoor Radon grant shall not exceed
25 percent of the amount of a State's Indoor Radon Grant in a fiscal
year.
(e) A State may use funds for financial assistance to persons only
to the extent such assistance is related to demonstration projects or
the purchase and analysis of radon measurement devices.
(f) Recipients must provide the Regional Administrator all radon-
related information generated in its grant supported activities,
including the results of radon surveys, mitigation demonstration
projects, and risk communication studies.
(g) Recipients must maintain and make available to the public, a
list of firms and individuals in the State that have received a passing
rating under the EPA proficiency rating program under section 305(a)(2)
of the Act.
Toxic Substances Compliance Monitoring (Section 28)
Sec. 35.310 Purpose.
(a) Purpose of section. Sections 35.310 through 35.315 govern Toxic
Substances Compliance Monitoring Grants to States (as defined in
section 3(13) of the Toxic Substances Control Act) under section 28(a)
of the Act.
(b) Purpose of program. Toxic Substances Compliance Monitoring
Grants are awarded to establish and operate compliance monitoring
programs to prevent or eliminate unreasonable risks to health or the
environment associated with chemical substances or mixtures within the
States with respect to which the Administrator is unable or not likely
to take action for their prevention or elimination.
(c) Associated program regulations. Associated program regulations
are at 40 CFR parts 700 through 799.
Sec. 35.312 Competitive process.
EPA will award Toxic Substances Control Act Compliance Monitoring
grant funds to States through a competitive process in accordance with
national program guidance.
Sec. 35.315 Maximum Federal share.
The Regional Administrator may provide up to 75 percent of the
approved work plan costs.
Sec. 35.318 Award limitation.
If the toxic substances compliance monitoring grant funds are
included in a Performance Partnership Grant, the toxic substances
compliance monitoring work plan commitments must be included in the
Performance Partnership Grant work plan.
State Underground Storage Tanks (Section 2007(f)(2))
Sec. 35.330 Purpose.
(a) Purpose of section. Sections 35.330 through 35.335 govern
Underground Storage Tank Grants to States (as defined in section 1004
of the Solid Waste Disposal Act) under section 2007(f)(2) of the Act.
(b) Purpose of program. State Underground Storage Tank Grants are
awarded to States to develop and implement a State underground storage
tank release detection, prevention, and corrective action program under
Subtitle I of the Resource Conservation and Recovery Act.
(c) Associated program regulations. Associated program regulations
are found in 40 CFR parts 280 through 282.
Sec. 35.332 Basis for allotment.
The Administrator allots State Underground Storage Tank Grant funds
[[Page 40079]]
to each regional office. Regional offices award funds to States based
on their programmatic needs and applicable EPA guidance.
Sec. 35.335 Maximum Federal share.
The Regional Administrator may provide up to 75 percent of the
approved work plan costs.
Pollution Prevention Incentives for States (Section 6605)
Sec. 35.340 Purpose.
(a) Purpose of section. Sections 35.340 through 35.349 govern
Pollution Prevention Incentive for States Grants under section 6605 of
the Pollution Prevention Act.
(b) Purpose of program. Pollution Prevention Incentives for States
Grants are awarded to promote the use of source reduction techniques by
businesses.
Sec. 35.342 Competitive Process.
EPA regions award Pollution Prevention Incentives for States Grants
to State programs through a competitive process in accordance with EPA
guidance. When evaluating State applications, EPA must consider, among
other criteria, whether the proposed State program would:
(a) Make specific technical assistance available to businesses
seeking information about source reduction opportunities, including
funding for experts to provide onsite technical advice to businesses
seeking assistance in the development of source reduction plans;
(b) Target assistance to businesses for whom lack of information is
an impediment to source reduction; and
(c) Provide training in source reduction techniques. Such training
may be provided through local engineering schools or other appropriate
means.
Sec. 35.343 Definitions.
In addition to the definitions in Sec. 35.102, the following
definition, Pollution prevention/Source reduction, applies to the
Pollution Prevention Incentives for States Grants program and to
Secs. 35.340 through 35.349:
(a) Pollution prevention/source reduction is any practice that:
(1) Reduces the amount of any hazardous substance, pollutant, or
contaminant entering any waste stream or otherwise released into the
environment (including fugitive emissions) prior to recycling,
treatment, or disposal;
(2) Reduces the hazards to public health and the environment
associated with the release of such substances, pollutants, or
contaminants; or
(3) Reduces or eliminates the creation of pollutants through
(i) Increased efficiency in the use of raw materials, energy,
water, or other resources; or
(ii) Protection of natural resources by conservation.
(b) Pollution prevention/source reduction does not include any
practice which alters the physical, chemical, or biological
characteristics or the volume of a hazardous substance, pollutant, or
contaminant through a process or activity which itself is not integral
to and necessary for the production of a product or the providing of a
service.
Sec. 35.345 Eligible applicants.
Applicants eligible for funding under this grant program include
any agency or instrumentality, including State universities, of the 50
States, the District of Columbia, the U.S. Virgin Islands, the
Commonwealth of Puerto Rico, and any territory or possession of the
United States.
Sec. 35.348 Award limitation.
If the Pollution Prevention Incentives for States Grants are
included in a Performance Partnership Grant, the work plan commitments
must be included in the Performance Partnership Grant work plan (see
Sec. 35.138).
Sec. 35.349 Maximum Federal share.
The Federal share for Pollution Prevention Incentives for States
Grants will not exceed 50 percent of the allowable pollution prevention
incentives to States project cost.
Water Quality Cooperative Agreements (Section 104(b)(3))
Sec. 35.360 Purpose.
(a) Purpose of section. Sections 35.360 through 35.364 govern Water
Quality Cooperative Agreements to State water pollution control
agencies and interstate agencies (as defined in section 502 of the
Clean Water Act) and local government agencies under section 104(b)(3)
of the Act. These sections do not govern Water Quality Cooperative
Agreements to other entities eligible under sections 104(b)(3); those
cooperative agreements generally are subject to the uniform
administrative requirements of 40 CFR part 30.
(b) Purpose of program. EPA awards Water Quality Cooperative
Agreements for investigations, experiments, training, demonstrations,
surveys, and studies relating to the causes, effects, extent,
prevention, reduction, and elimination of water pollution. EPA issues
guidance each year advising EPA regions and headquarters regarding
appropriate priorities for funding for this program. This guidance may
include such focus areas as National Pollutant Discharge Elimination
System watershed permitting, urban wet weather programs, or innovative
pretreatment program or biosolids projects.
Sec. 35.362 Competitive process.
EPA will award Water Quality Cooperative Agreement funds through a
competitive process in accordance with national program guidance.
Sec. 35.364 Maximum Federal share.
The Regional Administrator may provide up to 100 percent of
approved work plan costs.
State Wetlands Development Grants (Section 104(b)(3))
Sec. 35.380 Purpose.
(a) Purpose of section. Sections 35.380 through 35.385 govern State
Wetlands Development Grants for State and interstate agencies (as
defined in section 502 of the Clean Water Act) and local government
agencies under section 104(b)(3) of the Act. These sections do not
govern wetlands development grants to other entities eligible under
section 104(b)(3); those grants generally are subject to the uniform
administrative requirements of 40 CFR part 30.
(b) Purpose of program. EPA awards State Wetlands Development
Grants to to assist in the development of new, or refinement of
existing, wetlands protection and management programs.
Sec. 35.382 Competitive process.
State Wetlands Development Grants are awarded on a competitive
basis. EPA annually establishes a deadline for receipt of proposed
grant project applications. EPA reviews applications and decides which
grant projects to fund in a given year based on criteria established by
EPA. After the competitive process is complete, the recipient can, at
its discretion, accept the award as a State Wetlands Development Grant
or add the funds to a Performance Partnership Grant. If the recipient
chooses to add the funds to a Performance Partnership Grant, the
wetlands development program work plan commitments must be included in
the Performance Partnership Grant work plan.
Sec. 35.385 Maximum Federal share.
EPA may provide up to 75 percent of the approved work plan costs
for the development or refinement of a wetlands protection and
management program.
[[Page 40080]]
State Administration (Section 205(g))
Sec. 35.400 Purpose.
(a) Purpose of section. Sections 35.400 through 35.408 govern State
Administration Grants to States (as defined in section 502 of the Clean
Water Act) authorized under section 205(g) of the Act.
(b) Purpose of program. EPA awards these grants for the following
two purposes:
(1) Construction management grants. A State may use section 205(g)
funds for administering elements of the construction grant program
under sections 201, 203, 204, and 212 of the Clean Water Act and for
managing waste treatment construction grants for small communities. A
State may also use construction management assistance funds for
administering elements of a State's construction grant program which
are implemented without federal grants, if the Regional Administrator
determines that those elements are consistent with 40 CFR part 35,
subpart I.
(2) Permit and planning grants. A State may use section 205(g)
funds for administering permit programs under sections 402 and 404,
including Municipal Wastewater Pollution Prevention activities under an
approved section 402 program and State operator training programs, and
for administering statewide waste treatment management planning
programs, including the development of State biosolids management
programs, under section 208(b)(4). Some of these activities may also be
eligible for funding under sections 106 (Water Pollution Control),
205(j)(2) (Water Quality Management Planning), and 104(b)(3) (Water
Quality Cooperative Agreements and Wetlands Development Grants) of the
Clean Water Act. (See Secs. 35.160, 35.410, 35.360, and 35.380.)
(c) Associated program requirements. Program requirements for State
construction management activities under delegation are provided in 40
CFR part 35, subparts I and J. Program requirements for water quality
management activities are provided in 40 CFR part 130.
Sec. 35.402 Allotment.
Each State may reserve up to four percent of the State's authorized
construction grant allotment as determined by Congress or $400,000,
whichever is greater for section 205(g) grants.
Sec. 35.405 Maintenance of effort.
To receive funds under section 205(g), a State agency must expend
annually for recurrent section 106 program expenditures an amount of
non-federal funds at least equal to such expenditures during fiscal
year 1977, unless the Regional Administrator determines that the
reduction is attributable to a non-selective reduction of expenditures
in State executive branch agencies (see Sec. 35.165).
Sec. 35.408 Award limitations.
The Regional Administrator will not award section 205(g) funds:
(a) For construction management grants unless there is a signed
agreement delegating responsibility for administration of those
activities to the State.
(b) For permit and planning grants before awarding funds providing
for the management of a substantial portion of the State's construction
grants program. The maximum amount of permit and planning grants a
State may receive is limited to the amount remaining in its reserve
after the Regional Administrator allows for full funding of the
management of the construction grant program under full delegation.
(c) For permit and planning grants unless the work plan submitted
with the application shows that the activities to be funded are
coordinated, as appropriate, with activities proposed for funding under
sections 106 (Water Pollution Control) and 205(j) (Water Quality
Management Planning) of the Clean Water Act.
Water Quality Management Planning Grants (Section 205(j)(2))
Sec. 35.410 Purpose.
(a) Purpose of section. Sections 35.410 through 35.418 govern Water
Quality Management Planning Grants to States (as defined in section 502
of the Clean Water Act) authorized under section 205(j)(2) of the Act.
(b) Purpose of program. EPA awards Water Quality Management
Planning Grants to carry out water quality management planning
activities. Some of these activities may also be eligible for funding
under sections 106 (Water Pollution Control), 104(b)(3) (Water Quality
Cooperative Agreements and Wetlands Development Grants) and section
205(g) (State Administration Grants) of the Clean Water Act. (See
Secs. 35.160, 35.360, 35.380, and 35.400.) EPA awards these grants for
purposes such as:
(1) Identification of the most cost-effective and locally
acceptable facility and nonpoint measures to meet and maintain water
quality standards.
(2) Development of an implementation plan to obtain State and local
financial and regulatory commitments to implement measures developed
under paragraph (b)(1) of this section.
(3) Determination of the nature, extent, and causes of water
quality problems in various areas of the State and interstate region.
(4) Determination of those publicly owned treatment works which
should be constructed with State Revolving Fund assistance. This
determination should take into account the relative degree of effluent
reduction attained, the relative contributions to water quality of
other point or nonpoint sources, and the consideration of alternatives
to such construction.
(5) Implementation of section 303(e) of the Clean Water Act.
(c) Program requirements for water quality management planning
activities are provided in 40 CFR part 130.
Sec. 35.412 Allotment.
States must reserve, each fiscal year, not less than $100,000 nor
more than one percent of the State's construction grant allotment as
determined by Congress for Water Quality Management Planning Grants
under section 205(j)(2). However, Guam, the Virgin Islands, American
Samoa and the Commonwealth of the Northern Mariana Islands must reserve
a reasonable amount for this purpose. (See 40 CFR 35.3110(g)(4)
regarding reserves from State allotments under Title VI of the Clean
Water Act for section 205(j) grants.)
Sec. 35.415 Maximum Federal share.
The Regional Administrator may provide up to 100 percent of the
approved work plan costs.
Sec. 35.418 Award limitations.
The following limitations apply to funds awarded under section
205(j)(2) of the Clean Water Act. The Regional Administrator will not
award these grants to a State agency:
(a) Unless the agency develops its work plan jointly with local,
regional and interstate agencies and gives funding priority to such
agencies and designated or undesignated public comprehensive planning
organizations to carry out portions of that work plan.
(b) Unless the agency reports annually on the nature, extent, and
causes of water quality problems in various areas of the State and
interstate region.
(c) Unless the work plan submitted with the application shows that
the activities to be funded are coordinated, as appropriate, with
activities proposed for funding under section 106 (Water Pollution
Control) of the Clean Water Act.
[[Page 40081]]
PART 745--[AMENDED]
4. The authority citation for Part 745 continues to read as
follows:
Authority: 15 U.S.C. 2605, 2607, 2681-2692, and 42 U.S.C. 4852d.
5. EPA is proposing to remove 40 CFR 745.330.
[FR Doc. 99-17341 Filed 7-22-99; 8:45 am]
BILLING CODE 6560-50-U
