[Federal Register Volume 72, Number 84 (Wednesday, May 2, 2007)]
[Rules and Regulations]
[Pages 24496-24522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7990]
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Part V
Environmental Protection Agency
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40 CFR Parts 9 and 35
Cooperative Agreements and Superfund State Contracts for Superfund
Response Actions; Final Rule
Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Rules
and Regulations
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9 and 35
[FRL-8306-2]
RIN 2050-AE62
Cooperative Agreements and Superfund State Contracts for
Superfund Response Actions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This final rule amends the regulation for Superfund
Cooperative Agreements and Superfund State Contracts. The revisions to
the regulation: Incorporate EPA policy changes since 1990 that impact
this regulation; reduce the burden placed by this regulation on
Cooperative Agreement recipients and parties to Superfund State
Contracts; increase reliance on the Federal Government's uniform
administrative requirements for grants and Cooperative Agreements to
State and local governments, wherever possible; authorize procedures
that required deviations, on multiple occasions, under the existing
regulation; expressly authorize previous program initiatives that were
proven successful on a pilot basis; provide additional regulatory
flexibility without negatively impacting cost recovery actions; update
cross-references to other regulations that have changed or been
removed; and eliminate references to obsolete forms. The revisions
affect States, Indian Tribes, intertribal consortia, and political
subdivisions. The revisions will improve the administration and
effectiveness of Superfund Cooperative Agreements and Superfund State
Contracts.
DATES: This rule is effective July 2, 2007.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-SFUND-2006-0498. All documents in the docket are listed on
the www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through www.regulations.gov or in hard copy at the
Superfund Docket, EPA/DC, EPA West, 1301 Constitution Ave., NW.,
Washington, DC.
Note: The EPA Docket Center suffered damage due to flooding
during the last week of June 2006. The Docket Center is continuing
to operate. However, during the cleanup, there will be temporary
changes to Docket Center telephone numbers, addresses, and hours of
operation for people who wish to visit the Public Reading Room to
view documents. Consult EPA's Federal Register notice at 71 FR 38147
(July 5, 2006) or the EPA Web site at http://www.epa.gov/epahome/dockets.htm for current information on docket status, locations and
telephone numbers.
FOR FURTHER INFORMATION CONTACT: Angelo Carasea, Office of Solid Waste
and Emergency Response, Office of Superfund Remediation and Technology
Innovation, (5204P), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460; telephone number: (703) 603-8828, fax
number: (703) 603-9112, e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Statutory Authority
II. Applicability
III. Background
IV. Description of Key Changes
V. Section-by-Section Analysis
VI. Statutory and Executive Order Reviews
Statutory Authority
This rule is issued under section 104(a)-(j) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9601 et seq.) as amended (hereinafter CERCLA).
II. Applicability
The final regulation requirements shall apply to all new
Cooperative Agreements and Superfund State Contracts, funded under
CERCLA, which EPA signs on or after the effective date of this
regulation. EPA may agree to amend existing Cooperative Agreements or
Superfund State Contracts to make the final regulation requirements
applicable to work performed on and after the date EPA signs the
amendment.
III. Background
CERCLA launched the nation's first centralized and substantial
commitment to clean up hazardous substance sites. CERCLA, or Superfund,
provided Federal authority and resources to respond directly to
releases (or threatened releases) of hazardous substances, pollutants,
or contaminants that could endanger human health or the environment.
The law also authorized enforcement action and cost recovery from those
responsible for a release of a hazardous substance.
This regulation authorizes two types of Superfund response
agreements for State, Tribal (including intertribal consortium) and
political subdivision participation in CERCLA implementation:
Cooperative Agreements and Superfund State Contracts. These agreements
ensure State and Tribal involvement, consistent with section 121 of
CERCLA, 42 U.S.C. 9621 (hereinafter section 121), and section 126 of
CERCLA, 42 U.S.C. 9626, (hereinafter section 126) and are used to
obtain State assurances required under section 104 of CERCLA, 42 U.S.C.
9604, (hereinafter section 104) before EPA begins a remedial action.
EPA uses Cooperative Agreements to transfer funds to a State,
political subdivision, or Indian Tribe that assumes responsibility as
the lead or support agency for Superfund responses. Core Program
Cooperative Agreements are used to fund non-site-specific activities
that support a State or Indian Tribe's involvement in CERCLA responses.
A Superfund State Contract is used to document a State's CERCLA
section 104 assurances when either EPA or a political subdivision has
the lead role in the implementation of a remedial action. The
regulation is revised to authorize, but not require, a three-party
Superfund State Contract whenever a political subdivision takes the
lead for a remedial action.
The role of States, Indian Tribes, and political subdivisions in
Superfund has evolved substantially since 1990 when the original 40 CFR
part 35 subpart O regulation was promulgated. The recipients' cleanup
programs have matured and become more sophisticated. In addition, EPA
has actively sought to fulfill CERCLA's mandate in sections 121 and 126
to provide States and Indian Tribes a ``substantial and meaningful
involvement'' in Superfund by providing Core Program funding for the
development of State and Tribal infrastructure. The current subpart O
imposes more restrictive requirements on recipients than 40 CFR part 31
because, in 1990, EPA believed these requirements were necessary for
enforcement and cost recovery purposes. With the maturing of State and
Tribal programs, some of these added burdens have been judged to be
unnecessary. In the amended subpart O, EPA allows recipients to follow
the less burdensome 40 CFR part 31 requirements, wherever this is
possible, without compromising cost recovery or other Superfund-
specific requirements.
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For example, with respect to procurement procedures, the amended
subpart O eliminates the burdensome requirement for grantees to certify
that their procurement systems meet the requirements of this subpart.
The final regulation retains current requirements for awarding funds
and tracking costs by site, activity, and operable unit, when
appropriate, to ensure adequate documentation of costs. Retention of
such documentation requirements will meet Superfund cost recovery
requirements.
IV. Description of Key Changes
EPA made limited revisions to certain sections of the regulation.
The following is a brief description of the key changes.
A. Combining Certain Activities Into a Single Cooperative Agreement
This revision enables EPA to award a single Cooperative Agreement
for a single activity or multiple activities; a single activity at
multiple sites; and multiple activities at multiple sites. For example,
EPA may award a single Cooperative Agreement for Core Program, pre-
remedial and support agency activities. EPA will not award or amend a
Cooperative Agreement to a political subdivision to conduct multiple
activities at multiple sites. The revised regulation requires a single
Cooperative Agreement for each State, political subdivision or Indian
Tribe-lead remedial action and certain removal actions.
B. Core Program
This revision provides for the maintenance of program elements
previously developed using Core Program funding; however, EPA funding
of the recipients' Core Program activities is dependent on the
availability of EPA funds. Also this revision does not require Indian
Tribes, including intertribal consortia, to meet the Core Program match
requirements.
C. Indian Tribes
In light of the many and varied interests that Indian Tribes have
in the Superfund cleanup process, EPA is reducing unnecessary obstacles
to Tribal involvement. When EPA promulgated the current regulation, it
made a policy decision to require Indian Tribes to meet the criteria at
40 CFR 300.515(b), which include establishing jurisdiction under 40 CFR
300.515(b)(3), to be eligible for any Cooperative Agreement under this
subpart. The revised regulation eliminates the requirement for
demonstrating jurisdiction for all Tribal Core Program and most Tribal
support agency agreements. To reflect the reduced emphasis on
jurisdiction and to make the regulation's language more precise, the
regulation is modified in several appropriate places to delete
references to Tribal ``jurisdiction,'' and refer instead to a Tribal
``area of Indian country.'' The regulation also removes cost share
requirements for Core Program and support agency Cooperative
Agreements. As a result, Indian Tribes have no cost share requirements
under the revised regulation. Finally, an Indian Tribe will not need to
acquire an interest in or accept transfer of an interest in real
property acquired with CERCLA funds. This is not required under CERCLA
section 104(j).
D. Intertribal Consortium
Under the revised regulation, an intertribal consortium can enter
into a Cooperative Agreement with EPA. This change implements the
Federal Register notice, ``Update to EPA Policy On Certain Grants to
Intertribal Consortia,'' (See, 67 FR 67181 (November 4, 2002)). An
intertribal consortium must meet the same subpart O requirements for
applying for and administering a Cooperative Agreement as an Indian
Tribe.
E. Progress Reports
The revised subpart O relaxes current reporting requirements that
mandate quarterly reports. In the revised regulation, the EPA award
official may specify that progress reports be submitted annually, semi-
annually, or quarterly.
F. Five-year Review
Participation in five-year reviews of the continuing effectiveness
of a remedial action is added as an eligible support agency activity.
G. Cost Share for the Support Agency
The 10 percent cost share requirement for remedial action support
agency activities at EPA-lead sites is eliminated.
H. Program Income
With respect to program income, the revised regulation adds the
following: ``Recoveries of Federal cost share amounts are not program
income, and whether such recoveries are received before or after
expiration of the Cooperative Agreement, must be reimbursed promptly to
EPA.''
I. Credit Verification Procedures
EPA may use other financial reviews in lieu of an audit to verify
expenditures submissions.
J. Excess Cash Cost Share Contributions/Over Match Revisions
The recipient may direct EPA to return the excess funds or to use
the over match at one site to meet the cost share obligations at
another site.
K. Thresholds for Force Accounts, Small Purchases and Cost Analysis
Force accounts, small purchases, and cost analysis dollar amount
thresholds are linked to the simplified acquisition threshold, as
defined in the Office of Federal Procurement Policy Act (41 U.S.C. 403,
Definitions). The dollar amount for the simplified acquisition
threshold is currently set at $100,000.
L. Unalterable Electronic Format
An unalterable electronic format may be substituted for original
records if it is performed in accordance with the technical regulations
concerning Federal Government records and EPA record management
requirements. The unalterable electronic format requirement replaces
the microform requirement.
M. Three-Party Superfund State Contract
Under the revised regulation, the three-party Superfund State
Contract is optional rather than mandatory. EPA has found that it is
sometimes advantageous for the Superfund State Contract to be signed
only by the State and EPA to obtain needed State CERCLA assurances, and
to rely on a separate EPA Cooperative Agreement with a political
subdivision. This revised regulation adds the requirement that EPA
obtain State concurrence before awarding a Cooperative Agreement for
remedial action to a political subdivision. EPA is making this change
because EPA believes that it is important to maintain close
communication and coordination with the State in all CERCLA responses.
N. Obsolete References
This revision updates cross-references to other regulations that
have changed or been removed, and eliminates references to obsolete
forms.
V. Section-by-Section Analysis
Section 35.6000 Authority
This section remains the same, except for a more specific citing of
CERCLA.
Section 35.6005 Purpose and Scope
In paragraph (a), the word ``CERCLA-funded'', is deleted from the
phrase, ``for administering CERCLA-funded Cooperative Agreements,'' and
a reference to CERCLA section 104(d)(1) is added after this phrase.
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Paragraph (b) is eliminated because it cites program authorities,
which are not within the scope of CERCLA section 104 (a) through (j).
The remaining paragraphs are resequenced to reflect deletion of
paragraph (b).
Section 35.6010 Indian Tribe and Intertribal Consortium Eligibility
This section's title is changed from ``Eligibility,'' to ``Indian
Tribe and Intertribal Consortium Eligibility.'' The words ``States''
and ``political subdivisions'' are removed from this section, leaving
text that is devoted exclusively to Indian Tribe eligibility. The
revised section adds, in paragraph (a), that an Indian Tribe is not
required to demonstrate jurisdiction under 40 CFR 300.515(b)(3) of the
National Oil and Hazardous Substances Pollution Contingency Plan
(National Contingency Plan or NCP) to be eligible for Core Program
Cooperative Agreements, or those support agency Cooperative Agreements
for which jurisdiction is not needed for the Tribe to carry out the
support agency activities of the work plan. Finally, the revised
section contains a new paragraph (c), which states that an intertribal
consortium is eligible only if each consortium member is an eligible
Tribe and that all members authorize the consortium to apply for and
receive assistance.
Section 35.6015 Definitions
The following changes are made in this section.
The definition of CERCLA is shortened to refer only to the United
States Code citation.
Under the Core Program Cooperative Agreement definition, the word
``support'' is replaced with the words ``develop and maintain''. This
change clarifies that the Core Program funding can be made available
for continuing program activities and operations. Also, the revised
regulation corrects the omission of Indian Tribes from the definition
in the previous regulation.
The definition of ``Indian Tribe'' is revised by adding a sentence
stating that the term also includes an intertribal consortium
consisting of two or more federally recognized Tribes.
The National Priorities List definition is revised to conform it
with the definition in the NCP at 40 CFR 300.5.
The revised regulation defines two additional terms: (a)
Intertribal consortium and (b) simplified acquisition threshold. The
intertribal consortium definition is based on the definition found in
EPA's revised policy concerning certain grants to intertribal consortia
(See, 67 FR 67181 (November 4, 2002)). The simplified acquisition
threshold definition is taken from 41 U.S.C. 403, Definitions.
The revised regulation deletes the definition for ``excess
property.'' This term is not used in the regulation.
Section 35.6020 Requirements for Both Applicants and Recipients
The text in Sec. 35.6020, ``Other statutory provisions'' is
removed. The text in Sec. 35.6560 is revised to provide updated
references to EPA's codifications of the Government-wide debarment and
suspension rules, and drug-free workplace rules; the revised section is
retitled, ``Requirements for Both Applicants and Recipients,'' and
renumbered as Sec. 35.6020. Conforming amendments are made to cross-
references appearing in the revised regulation at Sec. Sec.
35.6550(a)(6) and 35.6610(a).
Section 35.6055 State-Lead Pre-Remedial Cooperative Agreements
In paragraph (a)(2)(i), the phrase ``project officer'' is changed
to ``EPA project officer.''
Paragraphs (a)(3) to (a)(6) are deleted and replaced with a new
paragraph (a)(3), which states that the applicant must submit all
applicable forms and information authorized by 40 CFR 31.10.
Section 35.6060 Political Subdivision-Lead Pre-Remedial Cooperative
Agreements
Paragraphs (c) and (d) are deleted. A three-party Superfund State
Contract is authorized, but not required under Sec. 35.6800.
Section 35.6105 State-Lead Remedial Cooperative Agreements
The following changes are made in this section.
In paragraph (a), a new second sentence is added to indicate that
applications for additional funding need only include the revised
pages. This change is consistent with 40 CFR 31.10(b)(4).
Paragraphs (a)(3) to (a)(6) are deleted and replaced with a new
paragraph (a)(3) that requires the applicant to submit all applicable
forms and information authorized by 40 CFR 31.10.
Several editorial changes are made to paragraphs (b)(1) and (b)(2)
to conform the text to CERCLA section 104(c)(3), and to add a reference
to 40 CFR 300.510(c)(1).
New text is added to paragraph (b)(5) to make clear that a State
must provide the real property assurance even if the State transfers
its interest to a third party or political subdivision. In addition, if
the political subdivision defaults, the State will accept transfer of
the interest. Finally, the new text provides that if the State or
political subdivision disposes of the transferred real property, it
shall comply with the requirements for real property in 40 CFR
31.31(c)(2).
Section 35.6110 Indian Tribe-Lead Remedial Cooperative Agreements
The following changes are made in this section.
In paragraph (a), the phrase, ``and, if appropriate, Sec.
35.6105(b)(5),'' is deleted. Also, paragraph (b)(2) is deleted. An
Indian Tribe will not be required to assure EPA that it will take title
to, acquire interest in, or accept transfer of an interest in real
property acquired with CERCLA funds. Such an assurance is not required
by CERCLA section 104.
Paragraph (b)(3) is resequenced to (b)(2). The phrase ``out of
jurisdiction'' is replaced with the phrase, ``out-of-an-Indian-Tribal-
area-of-Indian-country''.
A new paragraph (b)(3) is added to make clear that CERCLA does not
require Indian Tribes to share in the cost of CERCLA-funded remedial
actions.
Section 35.6115 Political Subdivision-Lead Remedial Cooperative
Agreement
The sentences under paragraph (a) are deleted and replaced with the
following sentences: ``General. If the State concurs, EPA may allow a
political subdivision with the necessary capabilities and
jurisdictional authority to conduct remedial response activities at a
site. EPA will award the political subdivision a Cooperative Agreement
to conduct remedial response and enter into a parallel Superfund State
Contract with the State if required (See Sec. 35.6800, when a
Superfund State Contract is required). The political subdivision may
also be a signatory to the Superfund State Contract. The political
subdivision must submit to the State a copy of all reports provided to
EPA.''
Paragraph (b) is deleted.
The changes to paragraphs (a) and (b) are made because a three-
party Superfund State Contract is authorized, but it is not required
under Sec. 35.6800.
Paragraph (c) is resequenced to paragraph (b).
Section 35.6120 Notification of the Out-of-State or Out-of-an-Indian-
Tribal-Area-of-Indian-Country Transfer of CERCLA Waste
The title of Sec. 35.6120 is changed. The phrase ``out-of-
jurisdiction'' is replaced with the phrase, ``Out-of-an-Indian-Tribal-
Area-of-Indian-Country.'' A corresponding change is made in
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paragraph (a). In paragraph (b)(2), the phrase, ``The appropriate
Indian Tribal official, who has jurisdictional authority in the area
where the waste management facility is located,'' is replaced with the
phrase, ``An appropriate official of an Indian Tribe in whose area of
Indian country the waste management facility is located''.
Section 35.6205 Removal Cooperative Agreements
In paragraph (e), the word, ``jurisdiction,'' is replaced with the
phrase, ``area of Indian country''.
Section 35.6215 Eligibility for Core Program Cooperative Agreements
In paragraph (a), the word ``support'' is replaced with the phrase
``develop and maintain.'' This change clarifies that the Core Program
funding can be made available for continuing program activities and
operations.
Section 35.6225 Activities Eligible for Funding Under Core Program
Cooperative Agreements
In paragraph (a) and paragraph (a)(5), the word ``support'' is
replaced with the phrase ``develop and maintain''. This change
clarifies that the Core Program funding can be made available for
continuing program activities and operations.
Section 35.6230 Application Requirements
The text in paragraph (d) is replaced with a cross-reference to 40
CFR 31.10.
Section 35.6235 Cost Sharing
Indian Tribes are not required to provide cost share for Core
Program activities. This change supports EPA's objectives under EPA
Policy for the Administration of Environmental Programs on Indian
Reservations (located at Web site: http://www.epa.gov/indian/pdfs/indian-policy-leavitt-pr.pdf) to (a) take affirmative steps to
encourage and assist Tribes in assuming regulatory and program
management responsibilities for reservation lands, and (b) take
appropriate steps to remove existing legal and procedural impediments
to working directly with Tribal government programs. Further, the word
``recipient'' is changed to ``State'' since only a State is required to
provide cost share for Core Program activities.
Section 35.6245 Allowable Activities
A sentence is added to clarify that a five-year review is an
eligible support agency activity.
Section 35.6250 Support Agency Cooperative Agreement Requirements
In paragraph (a), the citation to ``part 29'' is corrected to read
``40 CFR part 29''. In the penultimate sentence of paragraph (a), the
phrase ``with the exception of remedial action support agency
activities, which require cost share and must be applied for within a
site-specific budget,'' is deleted. The last sentence in this section
is also deleted. States and Indian Tribes receiving a support agency
Cooperative Agreement will no longer be required to develop an
estimated budget for each remedial action site as this requirement was
determined to be unnecessary and overly burdensome. However, State and
Indian Tribe accounting systems must continue to track expenses by
site, activity and operable unit as required in Sec. 35.6270.
Section 35.6255 Cost Sharing
This section is deleted. EPA has eliminated the 10 percent cost
share requirement for remedial action support agency activities at EPA-
lead sites because the costs of these activities are minimal. EPA will
not agree to waive the cost share requirements under support agency
Cooperative Agreements that were awarded before the effective date of
this rule.
Section 35.6260 Combining Cooperative Agreement Sites and Activities.
The current regulation describes specific types of Cooperative
Agreements. This new section authorizes multiple activities at both
single and multiple sites when the recipient demonstrates certain
qualifications (i.e., administrative, technical, and financial
management capabilities).
EPA will not award or amend a Cooperative Agreement to a political
subdivision to conduct multiple activities at multiple sites. The
revised regulation requires a single Cooperative Agreement for each
remedial action and eligible removal action (i.e., a removal action
that exceeds the statutory monetary ceiling or whenever a consistency
waiver is likely to be sought). This approach (e.g., the combining of
Core, pre-remedial, and support agency activities under a single
Cooperative Agreement) has been used successfully for several years
under EPA's ``Block Funding Administrative Reform.''
Section 35.6270 Standards for Financial Management Systems
In paragraph (a)(5), the two sentences are deleted and replaced
with the following: ``All support agreements will be assigned a single
Superfund activity code designated specifically for support agency
activities. All support agency costs, however, must be documented site
specifically in accordance with the terms and conditions specified in
the Cooperative Agreement.''
Section 35.6280 Payments
Paragraph (a)(2) is revised to cross-reference the identical
requirements in 40 CFR 31.21(i), ``Interest earned on advances.'' The
only new effect of this revision is that recipients will be allowed to
keep up to $100 per year for administrative expenses. See the last
sentence of 40 CFR 31.21(i).
Section 35.6285 Recipient Payment of Response Costs
Changes to this section include:
In paragraph (c)(1), the phrase ``as defined in CERCLA section
101(24), that are consistent with the permanent remedy at the site,''
is added after the phrase ``remedial action'' to clarify the scope of
activities that may be eligible for a State credit.
In paragraph (c)(1)(ii), the text is revised to indicate that after
a site is listed on the NPL, the State may be eligible for credit only
if the State initiated the remedial action after obtaining EPA's
written approval.
In paragraph (c)(2), the phrase ``Expenditures incurred before a
site is listed on the NPL'' is deleted because the credit submission
requirements are the same whether the expenses were incurred before or
after listing.
Paragraph (c)(2)(ii) is deleted because the requirement is
addressed under (c)(1)(ii).
The title of paragraph (c)(4) is changed from ``Credit
verification'' to ``Credit verification procedures.'' To ensure a
timely review of State credits, the regulation is modified to permit a
financial review as an alternative to an audit.
The title of paragraph (d) is changed from ``Over match'' to
``Excess cash cost share contributions/over match''. The revised
paragraph gives the State the option of directing EPA to return the
excess funds or to use the over match at one site to meet the cost
share obligations at another site.
Section 35.6290 Program Income
A new sentence is added that states, ``Recoveries of Federal cost
share amounts are not program income, and whether such recoveries are
received before or after expiration of the Cooperative Agreement, must
be reimbursed promptly to EPA.''
[[Page 24500]]
Section 35.6305 Obtaining Supplies
In the second sentence, the phrase, ``in the above listed
sections'', is replaced with, ``Sec. Sec. 35.6300, 35.6315(b), 35.6325
through 35.6340, and 35.6350''.
Section 35.6400 Acquisition and Transfer of Interest
The following changes are made under paragraph (a)(2):
In the first sentence, the phrase, ``or Indian Tribes to the extent
of its legal authority,'' is deleted. In the second sentence, the
phrase, ``and Indian Tribe,'' and the phrase, ``and 35.6110(b)(2)
respectively,'' are deleted. CERCLA section 104(j) does not require an
Indian Tribe to provide assurances for real property.
In the first sentence, the phrase ``of the NCP'' is appended to the
citation: 40 CFR 300.510(f).
Section 35.6500 General Requirements
Under paragraph (b), the ``$25,000'' limit is changed to ``the
simplified acquisition threshold.''
Section 35.6550 Procurement System Standards
Paragraphs (a)(1) through (a)(3) are replaced with a reference to
40 CFR 31.36(a), and for States, a list of the eight additional subpart
O procurement paragraphs and sections with which a State recipient must
comply. The last sentence of this revised paragraph lists the
procurement requirements for political subdivisions and Indian Tribes.
Paragraphs (a)(4) through (a)(12) are resequenced (a)(2) through
(a)(10).
Section 35.6555 Competition
Paragraph (b)(2) is revised to read: ``Any contract or subcontract
awarded by an Indian Tribe or Indian intertribal consortium shall
comply with the requirements of 40 CFR 31.38, `Indian Self
Determination Act'.'' The latter regulation, added to 40 CFR part 31 on
January 19, 2001 (66 FR 3794), requires Indian Tribes and consortia to
provide, to the extent feasible, employment preferences and training
opportunities to Indians in connection with the administration of
contracts and subcontracts under Federal financial assistance. In
addition, award preferences are to be provided for Indian organizations
and Indian-owned economic enterprises.
Section 35.6560 Master List of Debarred, Suspended, and Voluntarily
Excluded Persons.
This section is removed. The text of the current Sec. 35.6560 is
revised to provide updated references to EPA's codifications of the
Government-wide debarment and suspension rules and drug-free workplace
rules; the revised section is retitled, ``Requirements for both
applicants and recipients'', and renumbered as Sec. 35.6020.
Conforming amendments are made to cross-references appearing in
Sec. Sec. 35.6550(a)(6) and 35.6610(a).
Section 35.6565 Procurement Methods
In paragraph (a), the ``$25,000'' limit is changed to the
``simplified acquisition threshold''.
Section 35.6585 Cost and Price Analysis
In paragraph (a)(1), the ``$25,000'' limit is changed to the
``simplified acquisition threshold''.
Section 35.6590 Bonding and Insurance
Paragraph (b) is deleted because the Agency's comprehensive
guidelines on CERCLA section 119(c) indemnification are set forth in
``Superfund Response Action Contractor Indemnification,'' 58 FR 5972
(January 25, 1993). These guidelines provide that, in general, the
Agency will not offer to indemnify response action contractors.
The current paragraph (c) is resequenced to paragraph (b).
Section 35.6595 Contract Provisions
Paragraph (b)(1) is amended by deleting the reference to the 1975
enactment of the Energy Policy Conservation Act and substituting a
reference to the U.S. Department of Energy's regulations governing
State energy conservation programs.
Paragraph (b)(2), entitled ``Violating facilities'', of Sec.
35.6595 is deleted because it refers to the Agency's former regulations
on Clean Air Act and Clean Water Act disqualifications, which were
codified at 40 CFR part 15. Those statutory disqualifications and the
procedures for reinstatement have been governed, since November 26,
2003 (68 FR 66544, 66620, 66622) by subpart J of 40 CFR part 32,
``Government-wide Debarment and Suspension (Nonprocurement); and
Statutory Disqualification Under the Clean Air Act and Clean Water
Act.'' The 40 CFR part 32 regulations apply to all EPA covered non-
procurement transactions, including those under 40 CFR part 35 subpart
O.
Paragraph (b)(3) is resequenced to (b)(2). Paragraph (b)(4) is
resequenced to paragraph (b)(3) and revised to read, ``The recipient
must comply with the requirements of 40 CFR 31.36(i)(3) through (6).''
The cross-referenced part 31 provisions specify the identical equal
employment opportunity and labor requirements prescribed in paragraph
(b)(3). The only effect of this revision is to eliminate the
requirement that recipients include a copy of the obsolete EPA Form
5720-4 in each construction contract.
Paragraph (c), containing a requirement that recipient contracts
include the model clauses described in 40 CFR 33.1030 (1987), is
removed because 40 CFR part 33, ``Procurement under Assistance
Agreements,'' was removed in 1996 (61 FR 6067).
Section 35.6650 Progress Reports
The section title is changed from ``Quarterly Progress Reports'' to
``Progress Reports.''
Paragraph (a) is revised to read, ``The recipient must submit
progress reports as specified in the Cooperative Agreement. Progress
reports will be required no more frequently than quarterly, and will be
required at least annually. The reports shall be due within 30 days
after the reporting period. The final progress report shall be due 90
days after expiration or termination of the Cooperative Agreement.'' In
paragraph (b), the word ``quarterly'' is deleted.
Section 35.6665 Procurement Report
Paragraph (a) is removed. The Department of Labor reports are no
longer used.
Section 35.6700 Project Records
In paragraph (d)(ii)(2), the ``$25,000'' limit is changed to the
``simplified acquisition threshold.''
Section 35.6705 Records Retention
The title of paragraph (c) is changed from the current
``Substitution of microform'' to ``Substitution of an unalterable
electronic format.'' The first sentence of the revised paragraph (c)
authorizes recipients to substitute original records with copies in an
unalterable electronic format that is acceptable to EPA. The second
sentence requires that such copies be produced in accordance with the
Federal records requirements of 36 CFR parts 1220 through 1234 and with
EPA records management requirements.
Section 35.6780 Closeout
EPA has a continuing interest in the effectiveness of completed
remedies. Therefore, paragraph (c) is added, which states, ``After
closeout, EPA may monitor the recipient's compliance with the assurance
to provide all future operation and maintenance as required under
CERCLA section 104(c) and addressed in 40 CFR 300.510(c)(1) of the
NCP.''
[[Page 24501]]
Section 35.6800 Superfund State Contract
The title of this section is changed from ``General'' to
``Superfund State Contract.'' The introductory paragraph is rewritten
to clarify that the primary purpose of the Superfund State Contract
(SSC) is to ensure State and Tribal involvement and to obtain State
assurances before EPA can fund remedial actions pursuant to section 104
of CERCLA. The SSC may also be utilized to document other response
actions and third-party involvement.
Section 35.6805 Content of an SSC
Several changes are made to this section.
In paragraph (i)(1), the second sentence, ``The State's
responsibility for operation and maintenance generally begins when EPA
determines that the remedy is operational and functional or one year
after construction completion, whichever is sooner (See, 40 CFR
300.435(f)),'' is added to clarify when the State's responsibility for
operation and maintenance begins.
In paragraph (i)(4), the sentence, ``An Indian Tribe must provide
assurances pursuant to Sec. 35.6100(b)(2),'' is deleted. Indian Tribes
are not required to provide real property assurances under CERLCA
section 104(j).
In paragraph (j)(3), the phrase, ``Final payment must be made by
completion of all activities in the site-specific Statement of Work,''
is replaced with the phrase, ``Upon completion of activities in the
site-specific Statement of Work, EPA shall invoice the State for its
final payment.''
The title of paragraph (q) is changed from ``Joint inspection of
the remedy'' to, ``Final inspection of remedy.'' The sentences under
this paragraph are deleted and replaced with the sentence, ``The SSC
must include a statement that following completion of the remedial
action, the State and EPA shall jointly inspect the project to
determine that the remedy is functioning properly and is performing as
designed.''
In paragraph (v), the phrase, ``out-of-Indian-Tribal
jurisdiction,'' is replaced with the phrase, ``out-of-an-Indian-Tribal-
area-of-Indian-country.''
Section 35.6815 Administrative Requirements
Under paragraph (a)(1), the sentence, ``The State or political
subdivision must make payments during the course of the site-specific
project and must complete payments by completion of activities in the
site-specific Statement of Work,'' is deleted. The requirement is under
Sec. 35.6805(j)(3). The sentence, ``See Sec. 35.6255 of this subpart
for requirements concerning cost sharing under a support agency
Cooperative Agreement,'' is deleted. Section 35.6255 is deleted in this
revision.
Under paragraph (c)(2), the word ``quarterly'' modifying ``progress
report'' is deleted.
Section 35.6820 Conclusion of the SSC
Paragraphs (a) through (c) are resequenced (a)(1) through (a)(3).
In the revised paragraph (a)(3), the sentence ``undertake
responsibility for O&M, and, if applicable, accept transfer in real
property (See Sec. 35.6805(i)(4))'' is deleted and replaced with
paragraph (a)(4), containing the language, ``Assume responsibility for
all future operation and maintenance as required by CERCLA section
104(c) and addressed in 40 CFR 300.510 (c)(1) of the NCP, and if
applicable, accept transfer of any Federal interest in real property
(See Sec. 35.6805(i)(4)).''
A new paragraph (b) is added to this section that states, ``After
the administrative conclusion of the Superfund State Contract, EPA may
monitor the signatory's compliance with assurances to provide all
future operation and maintenance as required by CERCLA section 104(c)
and addressed in 40 CFR 300.510 (c)(1) of the NCP.''
These changes are made to help ensure long-term requirements for
operation and maintenance and certain institutional controls remain in
effect even after the Superfund State Contract expires.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Reviews
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action.'' Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review. Any changes made in response to OMB recommendations have been
documented in the docket for this action.
B. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this rule under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2050-0179.
This ICR authorizes the collection of information under 40 CFR part
35, subpart O, which establishes the administrative requirements for
Cooperative Agreements funded under CERCLA for State, political
subdivisions, and federally recognized Indian Tribal government
response actions. This regulation also codifies the administrative
requirements for Superfund State Contracts for non-State-lead remedial
responses. This regulation includes only those provisions mandated by
CERCLA, required by OMB Circulars, or added by EPA to ensure sound and
effective financial assistance management. The information is collected
from applicants and/or recipients of EPA assistance and is used to make
awards, pay recipients, and collect information on how Federal funds
are being spent. EPA requires this information to meet its Federal
stewardship responsibilities. Recipient responses are required to
obtain a benefit (Federal funds) under 40 CFR part 31, Uniform
Administrative Requirements for Grants and Cooperative Agreements to
State and Local Governments and under 40 CFR part 35, State and Local
Assistance. This rule does not contain any collection of information
requirements beyond those already approved. It is estimated there will
be approximately 654 respondents, with an average hourly burden per
response of 7.75 hours per response. This provides an estimated overall
annual burden to State, local or Tribal governments of 5073 hours.
There are no estimated capital or operations and maintenance costs
associated with this grant rule. Burden means the total time, effort,
or financial resources expended by persons to generate, maintain,
retain, disclose or provide information to or for a Federal agency.
This includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9. In addition, EPA is
amending the table in 40 CFR part 9 of currently approved
[[Page 24502]]
OMB control numbers for various regulations to list the regulatory
citations for the information requirements contained in this final
rule.
C. Regulatory Flexibility Act
Today's final rule is not subject to the Regulatory Flexibility Act
(RFA), which generally requires an agency to prepare a regulatory
flexibility analysis for any rule that will have a significant economic
impact on a substantial number of small entities. The RFA applies only
to rules subject to notice and comment rulemaking requirements under
the Administrative Procedure Act (APA) or any other statute. This rule
is not subject to notice and comment requirements under the APA or any
other statute because this rule pertains to grants which the APA
expressly exempts from notice and comment rulemaking requirements under
5 U.S.C. 553(a)(2). Moreover, CERCLA also does not require EPA to issue
a notice of proposed rulemaking prior to issuing this rule. The Agency
has determined that this rule does not adversely impact small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, 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,
Federal agencies generally must prepare a written analysis, including a
cost-benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures to State, local and Tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Moreover, section 205 allows Federal
agencies to adopt an alternative other than the least costly, most
cost-effective or least burdensome alternative if the Administrator
publishes with the final rule an explanation why that alternative was
not adopted. Before promulgating a rule for which a written statement
is needed, section 205 of the UMRA requires Federal agencies to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, most cost-effective, or least burdensome
alternative that achieves the objectives of the rule. The provisions of
section 205 do not apply when they are inconsistent with applicable
law. Before a Federal agency establishes any regulatory requirements
that may significantly or uniquely affect small governments, including
Tribal governments, it must have developed, under section 203 of the
UMRA, a small government agency plan. The plan must provide for
notifying potentially affected small governments, enabling officials to
have meaningful and timely input in the development of regulatory
proposals, and informing, educating and advising small governments on
compliance with the regulatory requirements.
This final rule does not include Federal mandates that may result
in expenditures of $100 million or more to State, local, or Tribal
governments in the aggregate, because the UMRA generally excludes from
the definition of ``Federal intergovernmental mandate'' duties that
arise from participation in a voluntary Federal program. States are not
legally required to have or maintain a CERCLA authorized program.
Therefore, today's final rule is not subject to the requirements of
sections 202 or 205 of UMRA. EPA has determined that this rule contains
no regulatory requirements that might significantly or uniquely affect
small governments, because participation by small governments in this
program is voluntary and is funded by EPA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires Federal agencies to develop an accountable process
to ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' The Executive Order defines ``policies that have
federalism implications'' to include regulations that have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.'' This
final rule does not have federalism implications. It does not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132.
This final rule mainly makes minor changes to the regulation, under
which the program has been operating since June, 1990. Apart from the
minor changes, this rule adds new provisions that increase State
flexibility, so it does not have federalism implications as that phrase
is defined for purposes of Executive Order 13132. Further, because this
is a rule that primarily conditions the use of Federal assistance, it
does not impose substantial direct compliance costs on States.
EPA did consult with representatives of State governments in
developing this rule. Specifically, State representatives have been
participating members of the workgroup revising this rule throughout
the entire process, and were given the opportunity to review and
comment on drafts of this rule. Representatives from two States (Kansas
and Illinois) were selected to participate in the work group meetings,
and these States discussed rule options and draft rule language with
EPA throughout the development of the rule. Also, the draft rule was
provided to the Association of State and Territorial Solid Waste
Management Officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have Tribal implications.'' Although this rule will have
Tribal implications, it will not impose substantial direct compliance
costs on Tribal governments, preempt Tribal law, or establish Federal
standards. The Agency consulted with Tribes under its EPA Indian
Policy, and in light of CERCLA sections 121 and 126 providing that
Indian Tribes should have ``substantial and meaningful involvement'' in
Superfund.
EPA has consulted with Tribal officials early in the process of
developing this regulation to permit them to have meaningful and timely
input into its development. During the early deliberations on the
revisions to this rule, a Tribal representative was actively involved
in the regulatory workgroup, and helped identify issues of likely
concern to Tribal governments. EPA, in turn, discussed those issues
with Tribal representatives participating in a concurrent initiative to
enhance the State and Tribal roles in Superfund. And the rule was
informed to a large extent by the experiences of Tribes and EPA during
16 years of experience working under the old regulation. Ultimately,
the EPA regulatory workgroup used the knowledge gained from
consultation and experience to identify and incorporate beneficial
changes for Tribes into the regulation. The principal changes
(discussed further in section IV), were (a) to waive the cost share
requirement for Tribes receiving Core Program and support
[[Page 24503]]
agency Cooperative Agreement, (b) to eliminate requirements to show
jurisdiction for all Core agreements and most support agency
agreements, and (c) to include intertribal consortia as eligible
entities to receive Cooperative Agreements. After drafting this
regulation, EPA solicited input from all the federally recognized
Indian Tribes and the National Tribal Environmental Council by mailing
a summary explaining the Tribal portions of the revised subpart O
regulation. Most recently, the Agency also discussed the proposed
changes and solicited direct feedback from Indian Tribes at the 11th
Annual Conference, ``Community Environmental Stewardship for the
Future,'' sponsored by the Inter-Tribal Environmental Council (ITEC).
As required by section 7(a), EPA's Tribal Consultation Official has
certified that the requirements of the Executive Order have been met in
a meaningful and timely manner. A copy of the certification is included
in the docket for this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that: (1) Is determined to be ``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, the Agency 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. This final
rule is not subject to Executive Order 13045 because it is not
``economically significant'' as defined under Executive Order 12866.
Further, it does not concern an environmental health or safety risk
that EPA has reason to believe may have a disproportionate effect on
children.
H. Executive Order 13211 (Energy Effects)
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. Further, we have
concluded that this rule is not likely to have any adverse energy
effects.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
action does not involve technical standards. Therefore, EPA did not
consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations
Under Executive Order 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations,'' as well as through EPA's National Environmental Justice
Advisory Council, EPA has undertaken to incorporate environmental
justice into its policies and programs. EPA is committed to addressing
environmental justice concerns, and is assuming a leadership role in
environmental justice initiatives to enhance environmental quality for
all residents of the United States. The Agency's goals are to ensure
that no segment of the population, regardless of race, color, national
origin, or income, bears disproportionately high and adverse human
health and environmental effects as a result of EPA's policies,
programs, and activities, and all people live in clean and sustainable
communities. No action from this rule will have a disproportionately
high and adverse human health and environmental effect on any segment
of the population. In addition, this rule does not impose substantial
direct compliance costs on those communities. Accordingly, the rule
does not raise issues regarding Executive Order 12898.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). The subpart O regulation is effective July 2, 2007.
List of Subjects
40 CFR Part 9
Environmental protection, Reporting and recordkeeping requirements.
40 CFR Part 35
Administrative practices and procedures, Environmental protection,
Grant programs-environmental protection, Reporting and recordkeeping.
Dated: April 19, 2007.
Stephen L. Johnson,
Administrator.
0
For the reasons set out in the preamble, 40 CFR parts 9 and 35 are
amended as follows:
PART 9--[AMENDED]
0
1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330,
1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g,
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2,
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542,
9601-9657, 11023, 11048.
0
2. In Sec. 9.1, the table is amended under the heading, ``State and
Local Assistance,'' as follows:
0
a. By revising entries for ``35.6055(a)(2)'', ``35.6055(b)(1)'',
``35.6055(b)(2)(i)-(ii)'', ``35.6105(a)(2)(i)-(v), (vii)'',
``35.6120'', ``35.6145'', ``35.6155(a), (c)'', ``35.6230(a), (c)'',
``35.6300(a)(3)'', ``35.6315(c)'', ``35.6320'', ``35.6340(a)'',
``35.6350'', ``35.6500'', ``35.6550(b)(1)(iii)'', ``35.6550(b)(2)(i)'',
``35.6585'', ``35.6595(a), (b)'', ``35.6600(a)'', ``35.6650'',
``35.6655'', ``35.6660'', ``35.6665(a), (b)'', ``35.6700'',
[[Page 24504]]
``35.6705'', ``35.6710'', ``35.6805'', and ``35.6815(a), (c), (d)''.
0
b. By removing entries for ``35.6110(b)(2)'' and ``35.6550(a)(1)(ii)''.
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
OMB
40 CFR citation control No.
------------------------------------------------------------------------
* * * * *
State and Local Assistance
35.6055(a)(2).............................................. 2050-0179
35.6055(b)(1).............................................. 2050-0179
35.6055(b)(2)(i)-(ii)...................................... 2050-0179
35.6105(a)(2)(i)-(v), (vii)................................ 2050-0179
35.6120.................................................... 2050-0179
35.6145.................................................... 2050-0179
35.6155(a), (c)............................................ 2050-0179
35.6230(a), (c)............................................ 2050-0179
35.6300(a)(3).............................................. 2050-0179
35.6315(c)................................................. 2050-0179
35.6320.................................................... 2050-0179
35.6340(a)................................................. 2050-0179
35.6350.................................................... 2050-0179
35.6500.................................................... 2050-0179
35.6550(b)(1)(iii)......................................... 2050-0179
35.6550(b)(2)(i)........................................... 2050-0179
35.6585.................................................... 2050-0179
35.6595(a), (b)............................................ 2050-0179
35.6600(a)................................................. 2050-0179
35.6650.................................................... 2050-0179
35.6655.................................................... 2050-0179
35.6660.................................................... 2050-0179
35.6665(a), (b)............................................ 2050-0179
35.6700.................................................... 2050-0179
35.6705.................................................... 2050-0179
35.6710.................................................... 2050-0179
35.6805.................................................... 2050-0179
35.6815(a), (c), (d)....................................... 2050-0179
* * * * *
------------------------------------------------------------------------
* * * * *
PART 35--[AMENDED]
0
3. Subpart O is revised to read as follows:
Subpart O--Cooperative Agreements and Superfund State Contracts for
Superfund Response Actions
General
Sec.
35.6000 Authority.
35.6005 Purpose and scope.
35.6010 Indian Tribe and intertribal consortium eligibility.
35.6015 Definitions.
35.6020 Requirements for both applicants and recipients.
35.6025 Deviation from this subpart.
Pre-Remedial Response Cooperative Agreements
35.6050 Eligibility for pre-remedial Cooperative Agreements.
35.6055 State-lead pre-remedial Cooperative Agreements.
35.6060 Political subdivision-lead pre-remedial Cooperative
Agreements.
35.6070 Indian Tribe-lead pre-remedial Cooperative Agreements.
Remedial Response Cooperative Agreements
35.6100 Eligibility for remedial Cooperative Agreements.
35.6105 State-lead remedial Cooperative Agreements.
35.6110 Indian Tribe-lead remedial Cooperative Agreements.
35.6115 Political subdivision-lead remedial Cooperative Agreements.
35.6120 Notification of the out-of-State or out-of-an-Indian-Tribal-
area-of-Indian-country transfer of CERCLA waste.
Enforcement Cooperative Agreements
35.6145 Eligibility for enforcement Cooperative Agreements.
35.6150 Activities eligible for funding under enforcement
Cooperative Agreements.
35.6155 State, political subdivisions or Indian Tribe-lead
enforcement Cooperative Agreements.
Removal Response Cooperative Agreements
35.6200 Eligibility for removal Cooperative Agreements.
35.6205 Removal Cooperative Agreements.
Core Program Cooperative Agreements
35.6215 Eligibility for Core Program Cooperative Agreements.
35.6220 General.
35.6225 Activities eligible for funding under Core Program
Cooperative Agreements.
35.6230 Application requirements.
35.6235 Cost sharing.
Support Agency Cooperative Agreements
35.6240 Eligibility for support agency Cooperative Agreements.
35.6245 Allowable activities.
35.6250 Support agency Cooperative Agreement requirements.
Combining Cooperative Agreements
35.6260 Combining Cooperative Agreement sites and activities.
Financial Administration Requirements Under a Cooperative Agreement
35.6270 Standards for financial management systems.
35.6275 Period of availability of funds.
35.6280 Payments.
35.6285 Recipient payment of response costs.
35.6290 Program income.
Personal Property Requirements Under a Cooperative Agreement
35.6300 General personal property acquisition and use requirements.
35.6305 Obtaining supplies.
35.6310 Obtaining equipment.
35.6315 Alternative methods for obtaining property.
35.6320 Usage rate.
35.6325 Title and EPA interest in CERCLA-funded property.
35.6330 Title to federally owned property.
35.6335 Property management standards.
35.6340 Disposal of CERCLA-funded property.
35.6345 Equipment disposal options.
35.6350 Disposal of federally owned property.
Real Property Requirements Under a Cooperative Agreement
35.6400 Acquisition and transfer of interest.
35.6405 Use.
Copyright Requirements Under a Cooperative Agreement
35.6450 General requirements.
Use of Recipient Employees (``Force Account'') Under a Cooperative
Agreement
35.6500 General requirements.
Procurement Requirements Under a Cooperative Agreement
35.6550 Procurement system standards.
35.6555 Competition.
35.6565 Procurement methods.
35.6570 Use of the same engineer during subsequent phases of
response.
35.6575 Restrictions on types of contracts.
35.6580 Contracting with minority and women's business enterprises
(MBE/WBE), small businesses, and labor surplus area firms.
35.6585 Cost and price analysis.
35.6590 Bonding and insurance.
35.6595 Contract provisions.
35.6600 Contractor claims.
35.6605 Privity of contract.
35.6610 Contracts awarded by a contractor.
Reports Required Under a Cooperative Agreement
35.6650 Progress reports.
35.6655 Notification of significant developments.
35.6660 Property inventory reports.
35.6665 Procurement report.
35.6670 Financial reports.
Records Requirements Under a Cooperative Agreement
35.6700 Project records.
35.6705 Records retention.
35.6710 Records access.
Other Administrative Requirements for Cooperative Agreements
35.6750 Modifications.
35.6755 Monitoring program performance.
35.6760 Enforcement and termination for convenience.
35.6765 Non-Federal audit.
35.6770 Disputes.
35.6775 Exclusion of third-party benefits.
35.6780 Closeout.
35.6785 Collection of amounts due.
35.6790 High risk recipients.
Requirements for Administering a Superfund State Contract (SSC)
35.6800 Superfund State Contract.
35.6805 Contents of an SSC.
35.6815 Administrative requirements.
35.6820 Conclusion of the SSC.
Authority: 42 U.S.C. 9601 et seq.
[[Page 24505]]
Subpart O--Cooperative Agreements and Superfund State Contracts for
Superfund Response Actions
General
Sec. 35.6000 Authority.
This subpart is issued under section 104(a) through (j) of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (CERCLA)(42 U.S.C. 9601 et seq.).
Sec. 35.6005 Purpose and scope.
(a) This subpart codifies recipient requirements for administering
Cooperative Agreements awarded pursuant to section 104(d)(1) of CERCLA.
This subpart also codifies requirements for administering Superfund
State Contracts (SSCs) for non-State-lead remedial responses undertaken
pursuant to section 104 of CERCLA.
(b) 40 CFR part 31, ``Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Governments,''
establishes consistency and uniformity among Federal agencies in the
administration of grants and Cooperative Agreements to State, local,
and Indian Tribal governments. For CERCLA-funded Cooperative
Agreements, this subpart supplements the requirements contained in part
31 for States, political subdivisions thereof, and Indian Tribes. This
subpart references those sections of part 31 that are applicable to
CERCLA-funded Cooperative Agreements.
(c) Superfund monies for remedial actions cannot be used by
recipients for Federal facility cleanup activities. When a cleanup is
undertaken by another Federal entity, the State, political subdivision
or Indian Tribe can pursue funding for its involvement in response
activities from the appropriate Federal entity.
Sec. 35.6010 Indian Tribe and intertribal consortium eligibility.
(a) Indian Tribes are eligible to receive Superfund Cooperative
Agreements only when they are federally recognized, and when they meet
the criteria set forth in 40 CFR 300.515(b) of the National Oil and
Hazardous Substances Pollution Contingency Plan (the National
Contingency Plan or NCP), except that Indian Tribes shall not be
required to demonstrate jurisdiction under 40 CFR 300.515(b)(3) of the
NCP to be eligible for Core Program Cooperative Agreements, and those
support agency Cooperative Agreements for which jurisdiction is not
needed for the Tribe to carry out the support agency activities of the
work plan.
(b) Although section 126 of CERCLA provides that the governing body
of an Indian Tribe shall be treated substantially the same as a State,
the subpart O definition of ``State'' does not include Indian Tribes
because they do not need to comply with all the statutory requirements
addressed in subpart O that apply to States.
(c) Intertribal consortium: An intertribal consortium is eligible
to receive a Cooperative Agreement from EPA only if the intertribal
consortium demonstrates that all members of the consortium meet the
eligibility requirements for the Cooperative Agreement, and all members
authorize the consortium to apply for and receive assistance.
Sec. 35.6015 Definitions.
(a) As used in this subpart, the following words and terms shall
have the following meanings:
Activity. A set of CERCLA-funded tasks that makes up a segment of
the sequence of events undertaken in determining, planning, and
conducting a response to a release or potential release of a hazardous
substance. These include Core Program, pre-remedial (i.e., preliminary
assessments and site inspections), support agency, remedial
investigation/feasibility studies, remedial design, remedial action,
removal, and enforcement activities.
Allowable costs. Those project costs that are: Eligible,
reasonable, necessary, and allocable to the project; permitted by the
appropriate Federal cost principles; and approved by EPA in the
Cooperative Agreement and/or Superfund State Contract.
Architectural or engineering (A/E) services. Consultation,
investigations, reports, or services for design-type projects within
the scope of the practice of architecture or professional engineering
as defined by the laws of the State or territory in which the recipient
is located.
Award official. The EPA official with the authority to execute
Cooperative Agreements and Superfund State Contracts and to take other
actions authorized by EPA Orders.
Budget period. The length of time EPA specifies in a Cooperative
Agreement during which the recipient may expend or obligate Federal
funds.
CERCLA. The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. 9601--9657).
Change order. A written order issued by a recipient, or its
designated agent, to its contractor authorizing an addition to,
deletion from, or revision of, a contract, usually initiated at the
contractor's request.
Claim. A demand or written assertion by a contractor seeking, as a
matter of right, changes in contract duration, costs, or other
provisions, which originally have been rejected by the recipient.
Closeout. The final EPA or recipient actions taken to assure
satisfactory completion of project work and to fulfill administrative
requirements, including financial settlement, submission of acceptable
required final reports, and resolution of any outstanding issues under
the Cooperative Agreement and/or Superfund State Contract.
Community Relations Plan (CRP). A management and planning tool
outlining the specific community relations activities to be undertaken
during the course of a response. It is designed to provide for two-way
communication between the affected community and the agencies
responsible for conducting a response action, and to assure public
input into the decision-making process related to the affected
communities.
Construction. Erection, building, alteration, repair, remodeling,
improvement, or extension of buildings, structures or other property.
Contract. A written agreement between an EPA recipient and another
party (other than another public agency) or between the recipient's
contractor and the contractor's first tier subcontractor.
Contractor. Any party to whom a recipient awards a contract.
Cooperative Agreement. A legal instrument EPA uses to transfer
money, property, services, or anything of value to a recipient to
accomplish a public purpose in which substantial EPA involvement is
anticipated during the performance of the project.
Core Program Cooperative Agreement. A Cooperative Agreement that
provides funds to a State or Indian Tribe to conduct CERCLA
implementation activities that are not assignable to specific sites but
are intended to develop and maintain a State's or Indian Tribe's
ability to participate in the CERCLA response program.
Cost analysis. The review and evaluation of each element of
contract cost to determine reasonableness, allocability, and
allowability.
Cost share. The portion of allowable project costs that a recipient
contributes toward completing its project (i.e., non-Federal share,
matching share).
Equipment. Tangible, nonexpendable, personal property having a
useful life of more than one year and an acquisition cost of $5,000 or
more per unit.
[[Page 24506]]
Fair market value. The amount at which property would change hands
between a willing buyer and a willing seller, neither being under any
compulsion to buy or sell and both having reasonable knowledge of the
relevant facts. Fair market value is the price in cash, or its
equivalent, for which the property would have been sold on the open
market.
Health and safety plan. A plan that specifies the procedures that
are sufficient to protect on-site personnel and surrounding communities
from the physical, chemical, and/or biological hazards of the site. The
health and safety plan outlines:
(i) Site hazards;
(ii) Work areas and site control procedures;
(iii) Air surveillance procedures;
(iv) Levels of protection;
(v) Decontamination and site emergency plans;
(vi) Arrangements for weather-related problems; and
(vii) Responsibilities for implementing the health and safety plan.
In-kind contribution. The value of a non-cash contribution
(generally from third parties) to meet a recipient's cost sharing
requirements. An in-kind contribution may consist of charges for real
property and equipment or the value of goods and services directly
benefiting the CERCLA-funded project.
Indian Tribe. As defined by section 101(36) of CERCLA, any Indian
Tribe, band, nation, or other organized group or community, including
any Alaska Native village but not including any Alaska Native regional
or village corporation, which is recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians. For the purposes of this subpart, the term,
``Indian Tribe,'' includes an intertribal consortium consisting of two
or more federally recognized Tribes.
Intergovernmental Agreement. Any written agreement between units of
government under which one public agency performs duties for or in
concert with another public agency using EPA assistance. This includes
substate and interagency agreements.
Intertribal consortium. A partnership between two or more federally
recognized Indian Tribes that is authorized by the governing bodies of
those Indian Tribes to apply for and receive assistance agreements. An
intertribal consortium must have adequate documentation of the
existence of the partnership, and the authorization to apply for and
receive assistance.
Lead agency. The Federal agency, State agency, political
subdivision, or Indian Tribe that has primary responsibility for
planning and implementing a response action under CERCLA.
Minority Business Enterprise (MBE). A business which is:
(i) Certified as socially and economically disadvantaged by the
Small Business Administration;
(ii) Certified as a minority business enterprise by a State or
Federal agency; or
(iii) An independent business concern which is at least 51 percent
owned and controlled by minority group member(s). A minority group
member is an individual who is a citizen of the United States and one
of the following:
(A) Black American;
(B) Hispanic American (with origins from Puerto Rico, Mexico, Cuba,
South or Central America);
(C) Native American (American Indian, Eskimo, Aleut, native
Hawaiian); or
(D) Asian-Pacific American (with origins from Japan, China, the
Philippines, Vietnam, Korea, Samoa, Guam, the U.S. Trust Territories of
the Pacific, Northern Marianas, Laos, Cambodia, Taiwan or the Indian
subcontinent).
National Priorities List (NPL). The list, compiled by EPA pursuant
to CERCLA section 105, of uncontrolled hazardous substance releases in
the United States that are priorities for long-term remedial evaluation
and response. The NPL is published at Appendix B to 40 CFR Part 300.
Operable unit. A discrete action, as described in the Cooperative
Agreement or Superfund State Contract, that comprises an incremental
step toward comprehensively addressing site problems. The cleanup of a
site can be divided into a number of operable units, depending on the
complexity of the problems associated with the site. Operable units may
address geographical portions of a site, specific site problems, or
initial phases of an action, or may consist of any set of actions
performed over time or any actions that are concurrent but located in
different parts of a site.
Operation and maintenance. Measures required to maintain the
effectiveness of response actions.
Personal property. Property other than real property. It includes
both supplies and equipment.
Political subdivision. The unit of government that the State
determines to have met the State's legislative definition of a
political subdivision.
Potentially Responsible Party (PRP). Any individual(s) or
company(ies) identified as potentially liable under CERCLA for cleanup
or payment for costs of cleanup of Hazardous Substance sites. PRPs may
include individual(s), or company(ies) identified as having owned,
operated, or in some other manner contributed wastes to Hazardous
Substance sites.
Price analysis. The process of evaluating a prospective price
without regard to the contractor's separate cost elements and proposed
profit. Price analysis determines the reasonableness of the proposed
contract price based on adequate price competition, previous experience
with similar work, established catalog or market price, law, or
regulation.
Profit. The net proceeds obtained by deducting all allowable costs
(direct and indirect) from the price. (Because this definition of
profit is based on applicable Federal cost principles, it may vary from
many firms' definition of profit, and may correspond to those firms'
definition of ``fee.'')
Project. The activities or tasks EPA identifies in the Cooperative
Agreement and/or Superfund State Contract.
Project manager. The recipient official designated in the
Cooperative Agreement or Superfund State Contract as the program
contact with EPA.
Project officer. The EPA official designated in the Cooperative
Agreement as EPA's program contact with the recipient. Project officers
are responsible for monitoring the project.
Project period. The length of time EPA specifies in the Cooperative
Agreement and/or Superfund State Contract for completion of all project
work. It may be composed of more than one budget period.
Quality Assurance Project Plan. A written document, associated with
remedial site sampling, which presents in specific terms the
organization (where applicable), objectives, functional activities, and
specific quality assurance and quality control activities and
procedures designed to achieve the data quality objectives of a
specific project(s) or continuing operation(s).
Real property. Land, including land improvements, structures, and
appurtenances thereto, excluding movable machinery and equipment.
Recipient. Any State, political subdivision thereof, or Indian
Tribe which has been awarded and has accepted an EPA Cooperative
Agreement.
[[Page 24507]]
Services. A recipient's in-kind or a contractor's labor, time, or
efforts which do not involve the delivery of a specific end item, other
than documents (e.g., reports, design drawings, specifications). This
term does not include employment agreements or collective bargaining
agreements.
Simplified acquisition threshold. The dollar amount specified in
the Office of Federal Procurement Policy Act, 41 U.S.C. 403. The
threshold is currently set at $100,000.
Small business. A business as defined in section 3 of the Small
Business Act, as amended (15 U.S.C. 632).
State. The several States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the
Virgin Islands, the Commonwealth of Northern Marianas, and any
territory or possession over which the United States has jurisdiction.
Statement of Work (SOW). The portion of the Cooperative Agreement
application and/or Superfund State Contract that describes the purpose
and scope of activities and tasks to be carried out as a part of the
proposed project.
Subcontractor. Any first tier party that has a contract with the
recipient's prime contractor.
Superfund State Contract (SSC). A joint, legally binding agreement
between EPA and another party(ies) to obtain the necessary assurances
before an EPA-lead remedial action or any political subdivision-lead
activities can begin at a site, and to ensure State or Indian Tribe
involvement as required under CERCLA section 121(f).
Supplies. All tangible personal property other than equipment as
defined in this section.
Support agency. The agency that furnishes necessary data to the
lead agency, reviews response data and documents, and provides other
assistance to the lead agency.
Task. An element of a Superfund response activity identified in the
Statement of Work of a Superfund Cooperative Agreement or a Superfund
State Contract.
Title. The valid claim to property that denotes ownership and the
rights of ownership, including the rights of possession, control, and
disposal of property.
Unit acquisition cost. The net invoice unit price of the property
including the cost of modifications, attachments, accessories, or
auxiliary apparatus necessary to make the property usable for the
purpose for which it was acquired. Other charges, such as the cost of
installation, transportation, taxes, duty, or protective in-transit
insurance, shall be included or excluded from the unit acquisition cost
in accordance with the recipient's regular accounting practices.
Value engineering. A systematic and creative analysis of each
contract term or task to ensure that its essential function is provided
at the overall lowest cost.
Women's Business Enterprise (WBE). A business which is certified as
a Women's Business Enterprise by a State or Federal agency, or which
meets the following definition. A Women's Business Enterprise is an
independent business concern which is at least 51 percent owned by a
woman or women who also control and operate it. Determination of
whether a business is at least 51 percent owned by a woman or women
shall be made without regard to community property laws.
(b) Those terms not defined in this section shall have the meanings
set forth in section 101 of CERCLA, 40 CFR part 31, and 40 CFR part 300
(the National Contingency Plan).
Sec. 35.6020 Requirements for both applicants and recipients.
Applicants and recipients must comply with the applicable
requirements of 40 CFR part 32, ``Governmentwide Debarment and
Suspension (Non-procurement); and Statutory Disqualification under the
Clean Air Act and Clean Water Act,'' and of 40 CFR part 36,
``Governmentwide Requirements for Drug-Free Workplace (Financial
Assistance).''
Sec. 35.6025 Deviation from this subpart.
On a case-by-case basis, EPA will consider requests for an official
deviation from the non-statutory provisions of this subpart. Refer to
the requirements regarding additions and exceptions described in 40 CFR
31.6 (b), (c), and (d).
Pre-Remedial Response Cooperative Agreements
Sec. 35.6050 Eligibility for pre-remedial Cooperative Agreements.
States, political subdivisions, and Indian Tribes may apply for
pre-remedial response Cooperative Agreements.
Sec. 35.6055 State-lead pre-remedial Cooperative Agreements.
(a) To receive a State-lead pre-remedial Cooperative Agreement, the
applicant must submit an ``Application for Federal Assistance'' (SF-
424) for non-construction programs. Applications for additional funding
need include only the revised pages. The application must include the
following:
(1) Budget sheets (SF-424A).
(2) A Project narrative statement, including the following:
(i) A list of sites at which the applicant proposes to undertake
pre-remedial tasks. If the recipient proposes to revise the list, the
recipient may not incur costs on a new site until the EPA project
officer has approved the site;
(ii) A Statement of Work (SOW) which must include a detailed
description, by task, of activities to be conducted, the projected
costs associated with each task, the number of products to be
completed, and a quarterly schedule indicating when these products will
be submitted to EPA; and
(iii) A schedule of deliverables.
(3) Other applicable forms and information authorized by 40 CFR
31.10.
(b) Pre-remedial Cooperative Agreement requirements. The recipient
must comply with all terms and conditions in the Cooperative Agreement,
and with the following requirements:
(1) Health and safety plan. (i) Before beginning field work, the
recipient must have a health and safety plan in place providing for the
protection of on-site personnel and area residents. This plan need not
be submitted to EPA, but must be made available to EPA upon request.
(ii) The recipient's health and safety plan must comply with
Occupational Safety and Health Administration (OSHA) 29 CFR 1910.120,
entitled ``Hazardous Waste Operations and Emergency Response,'' unless
the recipient is an Indian Tribe exempt from OSHA requirements.
(2) Quality assurance. (i) The recipient must comply with the
quality assurance requirements described in 40 CFR 31.45.
(ii) The recipient must have an EPA-approved non-site-specific
quality assurance plan in place before beginning field work. The
recipient must submit the plan to EPA in adequate time (generally 45
days) for approval to be granted before beginning field work.
(iii) The quality assurance plan must comply with the requirements
regarding split sampling described in section 104(e)(4)(B) of CERCLA,
as amended.
Sec. 35.6060 Political subdivision-lead pre-remedial Cooperative
Agreements.
(a) If the Award Official determines that a political subdivision's
lead involvement in pre-remedial activities would be more efficient,
economical and appropriate than that of a State,
[[Page 24508]]
based on the number of sites to be addressed and the political
subdivision's history of program involvement, a pre-remedial
Cooperative Agreement may be awarded under this section.
(b) The political subdivision must comply with all of the
requirements described in Sec. 35.6055.
Sec. 35.6070 Indian Tribe-lead pre-remedial Cooperative Agreements.
The Indian Tribe must comply with all of the requirements described
in Sec. 35.6055, except for the intergovernmental review requirements
included in the ``Application for Federal Assistance'' (SF-424).
Remedial Response Cooperative Agreements
Sec. 35.6100 Eligibility for remedial Cooperative Agreements.
States, Indian Tribes, and political subdivisions may apply for
remedial response Cooperative Agreements.
Sec. 35.6105 State-lead remedial Cooperative Agreements.
To receive a State-lead remedial Cooperative Agreement, the
applicant must submit the following items to EPA:
(a) Application form, as described in Sec. 35.6055(a).
Applications for additional funding need to include only the revised
pages. The application must include the following:
(1) Budget sheets (SF-424A) displaying costs by site, activity and
operable unit, as applicable.
(2) A Project narrative statement, including the following:
(i) A site description, including a discussion of the location of
each site, the physical characteristics of each site (site geology and
proximity to drinking water supplies), the nature of the release
(contaminant type and affected media), past response actions at each
site, and response actions still required at each site;
(ii) A site-specific Statement of Work (SOW), including estimated
costs per task, and a standard task to ensure that a sign is posted at
the site providing the appropriate contacts for obtaining information
on activities being conducted at the site, and for reporting suspected
criminal activities;
(iii) A statement designating a lead site project manager among
appropriate State offices. This statement must demonstrate that the
lead State agency has conducted coordinated planning of response
activities with other State agencies. The statement must identify the
name and position of those individuals who will be responsible for
coordinating the State offices;
(iv) A site-specific Community Relations Plan or an assurance that
field work will not begin until one is in place. The Regional community
relations coordinator must approve the Community Relations Plan before
the recipient begins field work. The recipient must comply with the
community relations requirements described in EPA policy and guidance,
and in the National Contingency Plan;
(v) A site-specific health and safety plan, or an assurance that
the applicant will have a final plan before starting field work. Unless
specifically waived by the award official, the applicant must have a
site-specific health and safety plan in place providing for the
protection of on-site personnel and area residents. The site-specific
health and safety plan must comply with Occupational Safety and Health
Administration (OSHA) 29 CFR 1910.120, entitled, ``Hazardous Waste
Operations and Emergency Response,'' unless the recipient is an Indian
Tribe exempt from OSHA requirements;
(vi) Quality assurance--(A) General. If the project involves
environmentally related measurements or data generation, the recipient
must comply with the requirements regarding quality assurance described
in 40 CFR 31.45.
(B) Quality assurance plan. The applicant must have a separate
quality assurance project plan and/or sampling plan for each site to be
covered by the Cooperative Agreement. The applicant must submit the
quality assurance project plan and the sampling plan, which
incorporates results of any site investigation performed at that site,
to EPA with its Cooperative Agreement application. However, at the
option of the EPA award official with program concurrence, the
applicant may submit with its application a schedule for developing the
detailed site-specific quality assurance plan (generally 45 days before
beginning field work). Field work may not begin until EPA approves the
site-specific quality assurance plan.
(C) Split sampling. The quality assurance plan must comply with the
requirements regarding split sampling described in section 104(e)(4)(B)
of CERCLA, as amended.
(vii) A schedule of deliverables to be prepared during response
activities.
(3) Other applicable forms and information authorized by 40 CFR
31.10.
(b) CERCLA Assurances. Before a Cooperative Agreement for remedial
action can be awarded, the State must provide EPA with the following
written assurances:
(1) Operation and maintenance. The State must provide an assurance
that it will assume responsibility for all future operation and
maintenance of CERCLA-funded remedial actions for the expected life of
each such action as required by CERCLA section 104(c) and addressed in
40 CFR 300.510(c)(1) of the NCP. In addition, even if a political
subdivision is designated as being responsible for operation and
maintenance, the State must guarantee that it will assume any or all
operation and maintenance activities in the event of default by the
political subdivision.
(2) Cost sharing. The State must provide assurances for cost
sharing as follows:
(i) Ten percent. Where a facility, whether privately or publicly
owned, was not operated by the State or political subdivision thereof,
either directly or through a contractual relationship or otherwise, at
the time of any disposal of hazardous substances at the facility, the
State must provide 10 percent of the cost of the remedial action, if
CERCLA-funded.
(ii) Fifty percent or more. Where a facility was operated by a
State or political subdivision either directly or through a contractual
relationship or otherwise, at the time of any disposal of hazardous
substances at the facility, the State must provide 50 percent (or such
greater share as EPA may determine appropriate, taking into account the
degree of responsibility of the State or political subdivision for the
release) of the cost of removal, remedial planning, and remedial action
if the remedial action is CERCLA-funded.
(3) Twenty-year waste capacity. The State must assure EPA of the
availability of hazardous waste treatment or disposal facilities within
and/or outside the State that comply with subtitle C of the Solid Waste
Disposal Act and that have adequate capacity for the destruction,
treatment, or secure disposition of all hazardous wastes that are
reasonably expected to be generated within the State during the 20-year
period following the date of the response agreement. A remedial action
cannot be funded unless this assurance is provided consistent with 40
CFR 300.510 of the NCP. EPA will determine whether the State's
assurance is adequate.
(4) Off-site storage, treatment, or disposal. If off-site storage,
destruction, treatment, or disposal is required, the State must assure
the availability of a hazardous waste disposal facility that is in
compliance with subtitle C of the Solid Waste Disposal Act and is
acceptable to EPA. The lead agency of the State must provide the
notification required at Sec. 35.6120, if applicable.
[[Page 24509]]
(5) Real property acquisition. If EPA determines in the remedy
selection process that an interest in real property must be acquired in
order to conduct a response action, such acquisition may be funded
under a Cooperative Agreement. EPA may acquire an interest in real
estate for the purpose of conducting a remedial action only if the
State provides assurance that it will accept transfer of such interest
in accordance with 40 CFR 300.510(f) of the NCP. The State must provide
this assurance even if it intends to transfer this interest to a third
party, or to allow a political subdivision to accept transfer on behalf
of the State. If the political subdivision is accepting the transferred
interest in real property, the State must guarantee that it will accept
transfer of such interest in the event of default by the political
subdivision. If the State or political subdivision disposes of the
transferred real property, it shall comply with the requirements for
real property in 40 CFR 31.31(c)(2). (See Sec. 35.6400 for additional
information on real property acquisition requirements.)
Sec. 35.6110 Indian Tribe-lead remedial Cooperative Agreements.
(a) Application requirements. The Indian Tribe must comply with all
of the requirements described in Sec. 35.6105(a). Indian Tribes are
not required to comply with the intergovernmental review requirements
included in the ``Application for Federal Assistance'' (SF-424).
Consistent with the NCP (40 CFR 300.510(e)(2)), this subpart does not
address whether Indian Tribes are States for the purpose of CERCLA
section 104(c)(9).
(b) Cooperative Agreement requirements. (1) The Indian Tribe must
comply with all terms and conditions in the Cooperative Agreement.
(2) If it is designated the lead for remedial action, the Indian
Tribe must provide the notification required at Sec. 35.6120,
substituting the term ``Indian Tribe'' for the term ``State'' in that
section, and ``out-of-an-Indian-Tribal-area-of-Indian-country'' for
``out-of-State''.
(3) Indian Tribes are not required to share in the cost of CERCLA-
funded remedial actions.
Sec. 35.6115 Political subdivision-lead remedial Cooperative
Agreements.
(a) General. If the State concurs, EPA may allow a political
subdivision with the necessary capabilities and jurisdictional
authority to conduct remedial response activities at a site. EPA will
award the political subdivision a Cooperative Agreement to conduct
remedial response and enter into a parallel Superfund State Contract
with the State, if required (See Sec. 35.6800, when a Superfund State
Contract is required). The political subdivision may also be a
signatory to the Superfund State Contract. The political subdivision
must submit to the State a copy of all reports provided to EPA.
(b) Political subdivision Cooperative Agreement requirements--(1)
Application requirements. To receive a remedial Cooperative Agreement,
the political subdivision must prepare an application which includes
the documentation described in Sec. 35.6105(a)(1) through (a)(3).
(2) Cooperative Agreement requirements. The political subdivision
must comply with all terms and conditions in the Cooperative Agreement.
If it is designated the lead for remedial action, the political
subdivision must provide the notification required at Sec. 35.6120,
substituting the term ``political subdivision'' for the term ``State''
in that section.
Sec. 35.6120 Notification of the out-of-State or out-of-an-Indian-
Tribal-area-of-Indian-country transfer of CERCLA waste.
(a) The recipient must provide written notification of off-site
shipments of CERCLA waste from a site to an out-of-State or out-of-an-
Indian-Tribal-area-of-Indian-country waste management facility to:
(1) The appropriate State environmental official for the State in
which the waste management facility is located; and/or
(2) An appropriate official of an Indian Tribe in whose area of
Indian country the waste management facility is located; and
(3) The EPA Award Official.
(b) The notification of off-site shipments does not apply when the
total volume of all such shipments from the site does not exceed 10
cubic yards.
(c) The notification must be in writing and must provide the
following information, where available:
(1) The name and location of the facility to which the CERCLA waste
is to be shipped;
(2) The type and quantity of CERCLA waste to be shipped;
(3) The expected schedule for the shipments of the CERCLA waste;
and
(4) The method of transportation of the CERCLA waste.
(d) The recipient must notify the State or Indian Tribal government
in which the planned receiving facility is located of major changes in
the shipment plan, such as a decision to ship the CERCLA waste to
another facility within the same receiving State, or to a facility in
another State.
(e) The recipient must provide relevant information on the off-site
shipments, including the information in paragraph (c) of this section,
as soon as possible after the award of the contract and, where
practicable, before the CERCLA waste is actually shipped.
Enforcement Cooperative Agreements
Sec. 35.6145 Eligibility for enforcement Cooperative Agreements.
Pursuant to CERCLA section 104(d), States, political subdivisions
thereof, and Indian Tribes may apply for enforcement Cooperative
Agreements. To be eligible for an enforcement Cooperative Agreement,
the State, political subdivision or Indian Tribe must demonstrate that
it has the authority, jurisdiction, and the necessary administrative
capabilities to take an enforcement action(s) to compel PRP cleanup of
the site, or recovery of the cleanup costs. To accomplish this, the
State, political subdivision or Indian Tribe, respectively, must submit
the following for EPA approval:
(a) A letter from the State Attorney General, or comparable local
official (of a political subdivision) or comparable Indian Tribal
official, certifying that it has the authority, jurisdiction, and
administrative capabilities that provide a basis for pursuing
enforcement actions against a PRP to secure the necessary response;
(b) A copy of the applicable State, local (political subdivision)
or Indian Tribal statute(s) and a description of how it is implemented;
(c) Any other documentation required by EPA to demonstrate that the
State, local (political subdivision) or Indian Tribal government has
the statutory authority, jurisdiction, and administrative capabilities
to perform the enforcement activity(ies) to be funded under the
Cooperative Agreement.
Sec. 35.6150 Activities eligible for funding under enforcement
Cooperative Agreements.
An enforcement Cooperative Agreement application from a State,
political subdivision or Indian Tribe may request funding for the
following enforcement activities:
(a) PRP searches;
(b) Issuance of notice letters and negotiation activities;
(c) Administrative and judicial enforcement actions taken under
State or Indian Tribal law;
(d) Management assistance and oversight of PRPs during Federal
enforcement response;
[[Page 24510]]
(e) Oversight of PRPs during a State, political subdivision or
Indian Tribe enforcement response contingent on the applicant having
taken all necessary action to compel PRPs to fund the oversight of
cleanup activities negotiated under the recipient's enforcement
authorities. If the State, political subdivision, Indian Tribe or EPA
cannot obtain PRP commitment to fund such oversight activities, then
these activities will be considered eligible for CERCLA funding under
an enforcement Cooperative Agreement.
Sec. 35.6155 State, political subdivision or Indian Tribe-lead
enforcement Cooperative Agreements.
(a) The State, political subdivision or Indian Tribe must comply
with the requirements described in Sec. 35.6105 (a)(1) through (a)(3),
as appropriate.
(b) The CERCLA section 104 assurances described in Sec. 35.6105(b)
are not applicable for enforcement Cooperative Agreements.
(c) Before an enforcement Cooperative Agreement is awarded, the
State, political subdivision or Indian Tribe must:
(1) Assure EPA that it will notify and consult with EPA promptly if
the recipient determines that its laws or other restrictions prevent
the recipient from acting consistently with CERCLA; and
(2) If the applicant is seeking funds for oversight of PRP cleanup,
the applicant must:
(i) Demonstrate that the proposed Statement of Work or cleanup plan
prepared by the PRP satisfies the recipient's enforcement goals for
those instances in which the recipient is seeking funding for oversight
of PRP cleanup activities negotiated under the recipient's own
enforcement authorities; and
(ii) Demonstrate that the PRP has the capability to attain the
goals set forth in the plan;
(iii) Demonstrate that it has taken all necessary action to compel
PRPs to fund the oversight of cleanup activities negotiated under the
recipient's enforcement authorities.
Removal Response Cooperative Agreements
Sec. 35.6200 Eligibility for removal Cooperative Agreements.
When a planning period of more than six months is available,
States, political subdivisions and Indian Tribes may apply for removal
Cooperative Agreements.
Sec. 35.6205 Removal Cooperative Agreements.
(a) The State must comply with the requirements described in Sec.
35.6105(a). To the extent practicable, the State must comply with the
notification requirement at Sec. 35.6120 when a removal action is
necessary and involves out-of-State shipment of CERCLA wastes, and
when, based on the site evaluation, EPA determines that a planning
period of more than six months is available before the removal
activities must begin.
(b) Pursuant to CERCLA section 104(c)(3), the State is not required
to share in the cost of a CERCLA-funded removal action, unless the
removal is conducted at a site that was publicly operated by a State or
political subdivision at the time of disposal of hazardous substances
and a CERCLA-funded remedial action is ultimately undertaken at the
site. In this situation, the State must share at least 50 percent in
the cost of all removal, remedial planning, and remedial action costs
at the time of the remedial action as stated in Sec.
35.6105(b)(2)(ii).
(c) If both the State and EPA agree, a political subdivision with
the necessary capabilities and jurisdictional authority may assume the
lead responsibility for all, or a portion, of the removal activity at a
site. Political subdivisions must comply with the requirements
described in Sec. 35.6105(a). To the extent practicable, political
subdivisions also must comply with the notification requirement at
Sec. 35.6120 when a removal action is necessary and involves the
shipment of CERCLA wastes out of the State's jurisdiction, and when,
based on the site evaluation, EPA determines that a planning period of
more than six months is available before the removal activities must
begin.
(d) The State must provide the cost share assurance discussed in
paragraph (b) of this section on behalf of a political subdivision that
is given the lead for a removal action.
(e) Indian Tribes must comply with the requirements described in
Sec. 35.6105(a). To the extent practicable, Indian Tribes also must
comply with the notification requirement at Sec. 35.6120 when a
removal action is necessary and involves the shipment of CERCLA wastes
out of the Indian Tribe's area of Indian country, and when, based on
the site evaluation, EPA determines that a planning period of more than
six months is available before the removal activities must begin.
(f) Indian Tribes are not required to share in the cost of a
CERCLA-funded removal action.
Core Program Cooperative Agreements
Sec. 35.6215 Eligibility for Core Program Cooperative Agreements.
(a) States and Indian Tribes may apply for Core Program Cooperative
Agreements in order to conduct CERCLA implementation activities that
are not directly assignable to specific sites, but are intended to
develop and maintain a State's or Indian Tribe's ability to participate
in the CERCLA response program.
(b) Only the State or Indian Tribal government agency designated as
the single point of contact with EPA for CERCLA implementation is
eligible to receive a Core Program Cooperative Agreement.
(c) When it is more economical for a government entity other than
the recipient (such as a political subdivision or State Attorney
General) to implement tasks funded through a Core Program Cooperative
Agreement, benefits to such entities must be provided for in an
intergovernmental agreement.
Sec. 35.6220 General.
The recipient of a Core Program Cooperative Agreement must comply
with the requirements regarding financial administration (Sec. Sec.
35.6270 through 35.6290), property (Sec. Sec. 35.6300 through
35.6450), procurement (Sec. Sec. 35.6550 through 35.6610), reporting
(Sec. Sec. 35.6650 through 35.6670), records (Sec. Sec. 35.6700
through 35.6710), and other administrative requirements under a
Cooperative Agreement (Sec. Sec. 35.6750 through 35.6790). Recipients
may not incur site-specific costs. Where these sections entail site-
specific requirements, the recipient is not required to comply on a
site-specific basis.
Sec. 35.6225 Activities eligible for funding under Core Program
Cooperative Agreements.
(a) To be eligible for funding under a Core Program Cooperative
Agreement, activities must develop and maintain a recipient's abilities
to implement CERCLA. Once the recipient has in place program functions
described in paragraphs (a)(1) through (a)(4) of this section, EPA will
evaluate the recipient's program needs to sustain interaction with EPA
in CERCLA implementation as described in paragraph (a)(5) of this
section. The amount of funding provided under the Core Program will be
determined by EPA based on the availability of funds and the
recipient's program needs in the areas described in paragraphs (a)(1)
through (a)(4) of this section:
(1) Procedures for emergency response actions and longer-term
[[Page 24511]]
remediation of environmental and health risks at hazardous waste sites
(including but not limited to the development of generic health and
safety plans, quality assurance project plans, and community relation
plans);
(2) Provisions for satisfying all requirements and assurances
(including the development of a fund or other financing mechanism(s) to
pay for studies and remediation activities);
(3) Legal authorities and enforcement support associated with
proper administration of the recipient's program and with efforts to
compel potentially responsible parties to conduct or pay for studies
and/or remediation (including but not limited to the development of
statutory authorities; access to legal assistance in identifying
applicable or relevant and appropriate requirements of other laws; and
development and maintenance of the administrative, financial and
recordkeeping systems necessary for cost recovery actions under
CERCLA);
(4) Efforts necessary to hire and train staff to manage publicly-
funded cleanups, oversee responsible party-lead cleanups, and provide
clerical support; and
(5) Other activities deemed necessary by EPA to develop and
maintain sustained EPA/recipient interaction in CERCLA implementation
(including but not limited to general program management and
supervision necessary for a recipient to implement CERCLA activities,
and interagency coordination on all phases of CERCLA response).
(b) Continued funding of tasks in subsequent years will be based on
an evaluation of demonstrated progress toward the goals in the existing
Core Program Cooperative Agreement Statement of Work.
Sec. 35.6230 Application requirements.
To receive a Core Program Cooperative Agreement, the applicant must
submit an application form (``Application for Federal Assistance,'' SF-
424, for non-construction programs) to EPA. Applications for additional
funding need include only the revised pages. The application must
include the following:
(a) A project narrative statement, including the following:
(1) A Statement of Work (SOW) which must include a detailed
description of the CERCLA-funded activities and tasks to be conducted,
the projected costs associated with each task, the number of products
to be completed, and a schedule for implementation. Eligible activities
under Core Program Cooperative Agreements are discussed in Sec.
35.6225; and
(2) A background statement, describing the current abilities and
authorities of the recipient's program for implementing CERCLA, the
program's needs to sustain and increase recipient involvement in CERCLA
implementation, and the impact of Core Program Cooperative Agreement
funds on the recipient's involvement in site-specific CERCLA response.
(b) Budget sheets (SF-424A).
(c) Proposed project and budget periods for CERCLA-funded
activities. The project and budget periods may be one or more years and
may be extended incrementally, up to 12 months at a time, with EPA
approval.
(d) Other applicable forms and information authorized by 40 CFR
31.10.
Sec. 35.6235 Cost sharing.
A State must provide at least ten percent of the direct and
indirect costs of all activities covered by the Core Program
Cooperative Agreement. Indian Tribes are not required to share in the
cost of Core Program activities. The State must provide its cost share
with non-Federal funds or with Federal funds, authorized by statute to
be used for matching purposes. Funds used for matching purposes under
any other Federal grant or Cooperative Agreement cannot be used for
matching purposes under a Core Program Cooperative Agreement. The State
may provide its share using in-kind contributions if such contributions
are provided for in the Cooperative Agreement. The State may not use
CERCLA State credits to offset any part of its required match for Core
Program Cooperative Agreements. (See Sec. 35.6285 (c), (d), and (f)
regarding credit, excess cash cost share contributions/over match, and
advance match, respectively.)
Support Agency Cooperative Agreements
Sec. 35.6240 Eligibility for support agency Cooperative Agreements.
States, political subdivisions, and Indian Tribes may apply for
support agency Cooperative Agreements to ensure their meaningful and
substantial involvement in response activities, as specified in
sections 104 and 121(f)(1) of CERCLA and the NCP (40 CFR part 300).
Sec. 35.6245 Allowable activities.
Support agency activities are those activities conducted by the
recipient to ensure its meaningful and substantial involvement. The
activities described in section 121(f)(1) of CERCLA, as amended, and in
subpart F of the NCP (40 CFR part 300), are eligible for funding under
a support agency Cooperative Agreement. Participation in five-year
reviews of the continuing protectiveness of a remedial action is also
an eligible support agency activity.
Sec. 35.6250 Support agency Cooperative Agreement requirements.
(a) Application requirements. The applicant must comply with the
requirements described in Sec. 35.6105(a)(1) and (3), and other
requirements as negotiated with EPA. (Indian Tribes are exempt from the
requirement of Intergovernmental Review in 40 CFR part 29.) An
applicant may submit a non-site-specific budget for support agency
activities.
(b) Cooperative Agreement requirements. The recipient must comply
with the requirements regarding financial administration (Sec. Sec.
35.6270 through 35.6290), property (Sec. Sec. 35.6300 through
35.6450), procurement (Sec. Sec. 35.6550 through 35.6610), reporting
(Sec. Sec. 35.6650 through 35.6670), records (Sec. Sec. 35.6700
through 35.6710), and other administrative requirements under a
Cooperative Agreement (Sec. Sec. 35.6750 through 35.6790).
Combining Cooperative Agreements
Sec. 35.6260 Combining Cooperative Agreement sites and activities.
(a) EPA may award a Cooperative Agreement to a recipient for:
(1) A single activity, or multiple activities;
(2) A single activity at multiple sites; and
(3) Except as provided in paragraphs (b), (c), and (d) of this
section, multiple activities at multiple sites.
(b) EPA will not award or amend a Cooperative Agreement to a
political subdivision to conduct multiple activities at multiple sites.
Before awarding or amending a Cooperative Agreement to permit multiple
activities at multiple sites, EPA must determine that the State or
Indian Tribe has adequate administrative, technical, and financial
management and tracking capabilities. A State's or Indian Tribe's
request for such a Cooperative Agreement will be considered only if EPA
determines that consolidating these activities under one Cooperative
Agreement would be in the Agency's best interests.
(c) EPA will not award a single Cooperative Agreement to conduct
multiple remedial actions at multiple sites.
(d) EPA will require separate Cooperative Agreements for eligible
removal actions that exceed the statutory monetary ceiling or whenever
a consistency waiver is likely to be sought.
[[Page 24512]]
Financial Administration Requirements Under a Cooperative Agreement
Sec. 35.6270 Standards for financial management systems.
(a) Accounting system standards--(1) General. The recipient's
system must track expenses by site, activity, and, operable unit, as
applicable, according to object class. The system must also provide
control, accountability, and an assurance that funds, property, and
other assets are used only for their authorized purposes. The recipient
must allow an EPA review of the adequacy of the financial management
system as described in 40 CFR 31.20(c).
(2) Allowable costs. The recipient's systems must comply with the
appropriate allowable cost principles described in 40 CFR 31.22.
(3) Pre-remedial. The system need not track expenses by site.
However, all pre-remedial costs must be documented under a single
Superfund account number designated specifically for the pre-remedial
activity.
(4) Core Program. Since all costs associated with Core Program
Cooperative Agreements are non-site-specific, the systems need not
track expenses by site. However, all Core Program costs must be
documented under the Superfund account number(s) designated
specifically for Core Program activity.
(5) Support Agency. All support agency agreements will be assigned
a single Superfund activity code designated specifically for support
agency activities. All support agency costs, however, must be
documented site specifically in accordance with the terms and
conditions specified in the Cooperative Agreement.
(6) Accounting system control procedures. Except as provided for in
paragraph (a)(3) of this section, accounting system control procedures
must ensure that accounting information is:
(i) Accurate, charging only costs attributable to the site,
activity, and operable unit, as applicable; and
(ii) Complete, recording and charging to individual sites,
activities, and operable units, as applicable, all costs attributable
to the recipient's CERCLA effort.
(7) Financial reporting. The recipient's accounting system must use
actual costs as the basis for all reports of direct site charges. The
recipient must comply with the requirements for financial reporting
contained in Sec. 35.6670.
(b) Recordkeeping system standards. (1) The recipient must maintain
a recordkeeping system that enables site-specific costs to be tracked
by site, activity, and operable unit, as applicable, and provides
sufficient documentation for cost recovery purposes.
(2) The recipient must provide this site-specific documentation to
the EPA Regional Office within 30 working days of a request, unless
another time frame is specified in the Cooperative Agreement.
(3) In addition, the recipient must comply with the requirements
regarding records described in Sec. Sec. 35.6700, 35.6705, and
35.6710. The recipient must comply with the requirements regarding
source documentation described in 40 CFR 31.20(b)(6).
(4) For pre-remedial and Core Program activities, the recordkeeping
system must comply with the requirements described in paragraphs (a)(3)
and (a)(4) of this section.
Sec. 35.6275 Period of availability of funds.
(a) The recipient must comply with the requirements regarding the
availability of funds described in 40 CFR 31.23.
(b) Except as permitted in Sec. 35.6285, the Award Official must
sign the assistance agreement before costs are incurred. The recipient
may incur costs between the date the Award Official signs the
assistance agreement and the date the recipient signs the agreement, if
the costs are identified in the agreement and the recipient does not
change the agreement.
Sec. 35.6280 Payments.
(a) General. In addition to the following requirements, the
recipient must comply with the requirements regarding payment described
in 40 CFR 31.21 (f) through (h).
(1) Assignment of payment. The recipient cannot assign the right to
receive payments under the recipient's Cooperative Agreement. EPA will
make payments only to the payee identified in the Cooperative
Agreement.
(2) Interest. The interest a recipient earns on an advance of EPA
funds is subject to the requirements of 40 CFR 31.21(i), ``Interest
earned on advances.''
(b) Payment method--(1) Letter of credit. In order to receive
payment by the letter of credit method, the recipient must comply with
the requirements regarding letter of credit described in 40 CFR 31.20
(b)(7) and 31.21(b). The recipient must identify and charge costs to
specific sites, activities, and operable units, as applicable, for
drawdown purposes as specified in the Cooperative Agreement.
(2) Reimbursement. If the recipient is unable to meet letter of
credit requirements, EPA will pay the recipient by reimbursement. The
recipient must comply with the requirements regarding reimbursement
described in 40 CFR 31.21(d).
(3) Working capital advances. If the recipient is unable to meet
the criteria for payment by either letter of credit or reimbursement,
EPA may provide cash on a working capital advance basis. Under this
procedure EPA shall advance cash to the recipient to cover its
estimated disbursement needs for an initial period generally geared to
the recipient's disbursing cycle. Thereafter, EPA shall reimburse the
recipient for its actual cash disbursements. In such cases, the
recipient must comply with the requirements regarding working capital
advances described in 40 CFR 31.21(e).
Sec. 35.6285 Recipient payment of response costs.
The recipient may pay for its share of response costs using cash,
services, credits or any combination of these, as follows:
(a) Cash. The recipient may pay for its share of response costs in
the form of cash.
(b) Services. The recipient may provide equipment and services to
satisfy its cost share requirements under Cooperative Agreements. The
recipient must comply with the requirements regarding in-kind and
donated services described in 40 CFR 31.24.
(c) Credit--(1) General credit requirements. Credits are limited to
State site-specific expenses that EPA determines to be reasonable,
documented, direct, out-of-pocket expenditures of non-Federal funds for
remedial action, as defined in CERCLA section 101(24), that are
consistent with a permanent remedy at the site. Credits are established
on a site-specific basis. Only a State may claim credit.
(i) The State may claim credit for response activity obligations or
expenditures incurred by the State or political subdivision between
January 1, 1978, and December 11, 1980.
(ii) The State may claim credit for remedial action expenditures
made by the State after October 17, 1986. If such expenditures occurred
after the site was listed on the NPL (Appendix B to 40 CFR Part 300),
they will be eligible for a credit only if the State initiated the
remedial action after obtaining EPA's written approval.
(iii) The State may not claim credit for removal actions taken
after December 11, 1980.
(2) Credit submission requirements. Although EPA may require
additional documentation, the State must submit
[[Page 24513]]
the following before EPA will approve the use of the credit:
(i) Specific amounts claimed for credit, by site (estimated amounts
are unacceptable), based on supporting cost documentation;
(ii) Units of government (State agency, county, local) that
incurred the costs, by site;
(iii) Description of the specific function performed by each unit
of government at each site;
(iv) Certification (signed by the State's fiscal manager or the
financial director for each unit of government) that credit costs have
not been previously reimbursed by the Federal Government or any other
party, and have not been used for matching purposes under any other
Federal program or grant; and
(v) Documentation, if requested by EPA, to ensure the actions
undertaken at the site are cost eligible and consistent with CERCLA, as
amended, and the NCP requirements in 40 CFR part 300. This requirement
does not apply for costs incurred before December 11, 1980.
(3) Use of credit. The State must first apply credit at the site at
which it was earned. With the approval of EPA, the State may use excess
credit earned at one site for its cost share at another site (See
CERCLA section 104(c)(5)). Credits must be applied on a site-specific
basis, and, therefore, may not be used to meet State cost share
requirements for Core Program Cooperative Agreements. EPA will not
reimburse excess credit.
(4) Credit verification procedures. Expenditure submissions are
subject to verification by audit or other financial review. EPA may
conduct a technical review (including inspection) to verify that the
claimed remedial action is consistent with CERCLA and the NCP (40 CFR
part 300).
(d) Excess cash cost share contributions/overmatch. The recipient
may direct EPA to return the excess funds or to use the overmatch at
one site to meet the cost share obligation at another site. The
recipient may not use contributions in excess of the required cost
share at one site to meet the cost share obligation for the Core
Program cost share. Overmatch is not ``credit'' pursuant to paragraph
(c)(3) of this section.
(e) Cost sharing. The recipient must comply with the requirements
regarding cost sharing described in 40 CFR 31.24. Finally, the
recipient cannot use costs incurred under the Core Program to offset
cost share requirements at a site.
(f) Advance match. (1) A Cooperative Agreement for a site-specific
response entered into after October 17, 1986, cannot authorize a State
to contribute funds during remedial planning and then apply those
contributions to the remedial action cost share (advance match).
(2) A State may seek reimbursement for costs incurred under
Cooperative Agreements which authorize advance match.
(3) Reimbursements are subject to the availability of appropriated
funds.
(4) If the State does not seek reimbursement, EPA will apply the
advance match to off-set the State's required cost share for remedial
action at the site. The State may not use advance match for credit at
any other site, nor may the State receive reimbursement until the
conclusion of CERCLA-funded remedial response activities. Also, the
State may not use advance match for credit against cost share
obligations for Core Program Cooperative Agreements.
(5) Claims for advance match are subject to verification by audit.
Sec. 35.6290 Program income.
The recipient must comply with the requirements regarding program
income described in 40 CFR 31.25. Recoveries of Federal cost share
amounts are not program income, and whether such recoveries are
received before or after expiration of the Cooperative Agreement, must
be reimbursed promptly to EPA.
Personal Property Requirements Under a Cooperative Agreement
Sec. 35.6300 General personal property acquisition and use
requirements.
(a) General. (1) Property may be acquired only when authorized in
the Cooperative Agreement.
(2) The recipient must acquire the property during the approved
project period.
(3) The recipient must:
(i) Charge property costs by site, activity, and operable unit, as
applicable;
(ii) Document the use of the property by site, activity, and
operable unit, as applicable; and
(iii) Solicit and follow EPA's instructions on the disposal of any
property purchased with CERCLA funds as specified in Sec. Sec. 35.6340
and 35.6345.
(b) Exception. The recipient is not required to charge property
costs by site under a pre-remedial or Core Program Cooperative
Agreement.
Sec. 35.6305 Obtaining supplies.
To obtain supplies, the recipient must agree to comply with the
requirements in Sec. Sec. 35.6300, 35.6315(b), 35.6325 through
35.6340, and 35.6350. Supplies obtained with Core Program funds must be
for non-site-specific purposes. All purchases of supplies under the
Core Program must comply with the requirements in Sec. Sec. 35.6300,
35.6315(b), 35.6325 through 35.6340, and 35.6350, except where these
requirements are site-specific.
Sec. 35.6310 Obtaining equipment.
To obtain equipment, the recipient must agree to comply with the
requirements in Sec. Sec. 35.6300 and 35.6315 through 35.6350.
Sec. 35.6315 Alternative methods for obtaining property.
(a) Purchase equipment with recipient funds. The recipient may
purchase equipment with the recipient's own funds and may charge EPA a
fee for using equipment on a CERCLA-funded project. The fee must be
based on a usage rate, subject to the usage rate requirements in Sec.
35.6320.
(b) Borrow federally owned property. The recipient may borrow
federally owned property, with the exception of motor vehicles, for use
on CERCLA-funded projects. The loan of the federally owned property may
only extend through the project period. At the end of the project
period, or when the federally owned property is no longer needed for
the project, the recipient must return the property to the Federal
Government.
(c) Lease, use contractor services, or purchase with CERCLA funds.
To acquire equipment through lease, use of contractor services, or
purchase with CERCLA funds, the recipient must conduct and document a
cost comparison analysis to determine which of these methods of
obtaining equipment is the most cost effective. In order to obtain the
equipment, the recipient must submit documentation of the cost
comparison analysis to EPA for approval. The recipient must obtain the
equipment through the most cost-effective method, subject to the
following requirements:
(1) Lease or rent equipment. If it is the most cost-effective
method of acquisition, the recipient may lease or rent equipment,
subject only to the requirements in Sec. 35.6300.
(2) Use contractor services. (i) If it is the most cost-effective
method of acquisition, the recipient may hire the services of a
contractor.
(ii) The recipient must obtain award official approval before
authorizing the contractor to purchase equipment with CERCLA funds.
(See Sec. 35.6325, regarding the title and vested interest of
equipment purchased with CERCLA funds.) This does not apply for
[[Page 24514]]
recipients who have used the sealed bids method of procurement.
(iii) The recipient must require the contractor to allocate the
cost of the contractor services by site, activity, and operable unit,
as applicable.
(3) Purchase equipment with CERCLA funds. If equipment purchase is
the most cost-effective method of obtaining the equipment, the
recipient may purchase the equipment with CERCLA funds. To purchase
equipment with CERCLA funds, the recipient must comply with the
following requirements:
(i) The recipient must include in the Cooperative Agreement
application a list of all items of equipment to be purchased with
CERCLA funds, with the price of each item.
(ii) If the equipment is to be used on sites, the recipient must
allocate the cost of the equipment by site, activity, and operable
unit, as applicable, by applying a usage rate subject to the usage rate
requirements in Sec. 35.6320.
(iii) The recipient may not use CERCLA funds to purchase a
transportable or mobile treatment system.
(iv) Equipment obtained with Core Program funds must be for non-
site-specific purposes. All purchases of equipment must comply with the
requirements in Sec. Sec. 35.6300, and 35.6310 through 35.6350, except
where these requirements are site-specific.
Sec. 35.6320 Usage rate.
(a) Usage rate approval. To charge EPA a fee for use of equipment
purchased with recipient funds or to allocate the cost of equipment by
site, activity, and operable unit, as applicable, the recipient must
apply a usage rate. The recipient must submit documentation of the
usage rate computation to EPA. The EPA-approved usage rate must be
included in the Cooperative Agreement before the recipient incurs these
equipment costs.
(b) Usage rate application. The recipient must record the use of
the equipment by site, activity, and operable unit, as applicable, and
must apply the usage rate to calculate equipment charges by site,
activity, and operable unit, as applicable. For Core Program and pre-
remedial activities, the recipient is not required to apply a usage
rate.
Sec. 35.6325 Title and EPA interest in CERCLA-funded property.
(a) EPA's interest in CERCLA-funded property. EPA has an interest
(the percentage of EPA's participation in the total award) in both
equipment and supplies purchased with CERCLA funds.
(b) Title in CERCLA-funded property. Title in both equipment and
supplies purchased with CERCLA funds vests in the recipient.
(1) Right to transfer title. EPA retains the right to transfer
title of all property purchased with CERCLA funds to the Federal
Government or a third party within 120 calendar days after project
completion or at the time of disposal.
(2) Equipment used as all or part of the remedy. The following
requirements apply to equipment used as all or part of the remedy:
(i) Fixed in-place equipment. EPA no longer has an interest in
fixed in-place equipment once the equipment is installed.
(ii) Equipment that is an integral part of services to individuals.
EPA no longer has an interest in equipment that is an integral part of
services to individuals, such as pipes, lines, or pumps providing
hookups for homeowners on an existing water distribution system, once
EPA certifies that the remedy is operational and functional.
Sec. 35.6330 Title to federally owned property.
Title to all federally owned property vests in the Federal
Government.
Sec. 35.6335 Property management standards.
The recipient must comply with the following property management
standards for property purchased with CERCLA funds. The recipient may
use its own property management system if it meets the following
standards.
(a) Control. The recipient must maintain:
(1) Property records for CERCLA-funded property which include the
contents specified in Sec. 35.6700(c);
(2) A control system that ensures adequate safeguards for
prevention of loss, damage, or theft of the property. The recipient
must make provisions for the thorough investigation and documentation
of any loss, damage, or theft;
(3) Procedures to ensure maintenance of the property are in good
condition and periodic calibration of the instruments used for
precision measurements;
(4) Sales procedures to ensure the highest possible return, if the
recipient is authorized to sell the property;
(5) Provisions for financial control and accounting in the
financial management system of all equipment; and
(6) Identification of all federally owned property.
(b) Inventory and reporting for CERCLA-funded equipment--(1)
Physical inventory. The recipient must conduct a physical inventory at
least once every two years for all equipment except that which is part
of the in-place remedy. The recipient must reconcile physical inventory
results with the equipment records.
(2) Inventory reports. The recipient must comply with requirements
for inventory reports set forth in Sec. 35.6660.
(c) Inventory and reporting for federally owned property--(1)
Physical inventory. The recipient must conduct a physical inventory:
(i) Annually;
(ii) When the property is no longer needed; and
(iii) Within 90 days after the end of the project period.
(2) Inventory reports. The recipient must comply with requirements
for inventory reports in Sec. 35.6660.
Sec. 35.6340 Disposal of CERCLA-funded property.
(a) Equipment. For equipment that is no longer needed, or at the
end of the project period, whichever is earlier, the recipient must:
(1) Analyze two alternatives: The cost of leaving the equipment in
place, and the cost of removing the equipment and disposing of it in
another manner.
(2) Document the analysis of the two alternatives in the inventory
report. See Sec. 35.6660 regarding requirements for the inventory
report.
(i) If it is most cost-effective to remove the equipment and
dispose of it in another manner:
(A) If the equipment has a residual fair market value of $5,000 or
more, the recipient must request disposition instructions from EPA in
the inventory report. See Sec. 35.6345 for equipment disposal options.
(B) If the equipment has a residual fair market value of less than
$5,000, the recipient may retain the equipment for the recipient's use
on another CERCLA site. If, however, there is any remaining residual
value at the time of final disposition, the recipient must reimburse
the Hazardous Substance Superfund for EPA's vested interest in the
current fair market value of the equipment at the time of disposition.
(ii) If it is most cost-effective to leave the equipment in place,
recommend in the inventory report that the equipment be left in place.
(3) Submit the inventory report to EPA, even if EPA has stopped
supporting the project.
(b) Supplies. (1) If supplies have an aggregate fair market value
of $5,000 or more at the end of the project period, the recipient must
take one of the following actions at the direction of EPA:
[[Page 24515]]
(i) Use the supplies on another CERCLA project and reimburse the
original project for the fair market value of the supplies;
(ii) If both the recipient and EPA concur, keep the supplies and
reimburse the Hazardous Substance Superfund for EPA's interest in the
current fair market value of the supplies; or
(iii) Sell the supplies and reimburse the Hazardous Substance
Superfund for EPA's interest in the current fair market value of the
supplies, less any reasonable selling expenses.
(2) If the supplies remaining at the end of the project period have
an aggregate fair market value of less than $5,000, the recipient may
keep the supplies to use on another CERCLA project. If the recipient
cannot use the supplies on another CERCLA project, then the recipient
may keep or sell the supplies without reimbursing the Hazardous
Substance Superfund.
Sec. 35.6345 Equipment disposal options.
The following disposal options are available:
(a) Use the equipment on another CERCLA project and reimburse the
original project for the fair market value of the equipment;
(b) If both the recipient and EPA concur, keep the equipment and
reimburse the Hazardous Substance Superfund for EPA's interest in the
current fair market value of the equipment;
(c) Sell the equipment and reimburse the Hazardous Substance
Superfund for EPA's interest in the current fair market value of the
equipment, less any reasonable selling expenses; or
(d) Return the equipment to EPA and, if applicable, EPA will
reimburse the recipient for the recipient's proportionate share in the
current fair market value of the equipment.
Sec. 35.6350 Disposal of federally owned property.
When federally owned property is no longer needed, or at the end of
the project, the recipient must inform EPA that the property is
available for return to the Federal Government. EPA will send
disposition instructions to the recipient.
Real Property Requirements Under a Cooperative Agreement
Sec. 35.6400 Acquisition and transfer of interest.
(a) An interest in real property may be acquired only with prior
approval of EPA.
(1) If the recipient acquires real property in order to conduct the
response, the recipient with jurisdiction over the property must agree
to hold the necessary property interest.
(2) If it is necessary for the Federal Government to acquire the
interest in real estate to permit conduct of a remedial action, the
acquisition may be made only if the State provides assurance that it
will accept transfer of the acquired interest in accordance with 40 CFR
300.510(f) of the NCP. States must follow the requirements in Sec.
35.6105(b)(5).
(b) The recipient must comply with applicable Federal regulations
for real property acquisition under assistance agreements contained in
part 4 of this chapter, ``Uniform Relocation Assistance and Real
Property Acquisition for Federal and Federally Assisted Programs.''
Sec. 35.6405 Use.
The recipient must comply with the requirements regarding real
property described in 40 CFR 31.31.
Copyright Requirements Under a Cooperative Agreement
Sec. 35.6450 General requirements.
The recipient must comply with the requirements regarding
copyrights described in 40 CFR 31.34. The recipient must comply with
the requirements regarding contract copyright provisions described in
Sec. 35.6595(b)(2).
Use of Recipient Employees (``Force Account'') Under a Cooperative
Agreement
Sec. 35.6500 General requirements.
(a) Force Account work is the use of the recipient's own employees
or equipment for construction, construction-related activities
(including architecture and engineering services), or repair or
improvement to a facility. When using Force Account work, the recipient
must demonstrate that the employees can complete the work as
competently as, and more economically than, contractors, or that an
emergency necessitates the use of the Force Account.
(b) Where the value of Force Account services exceeds the
simplified acquisition threshold, the recipient must receive written
authorization for use from the award official.
Procurement Requirements Under a Cooperative Agreement
Sec. 35.6550 Procurement system standards.
(a) Recipient standards. (1) In addition to the basic procurement
policies and procedures described in 40 CFR 31.36(a), the State shall
comply with the requirements in the following: Paragraphs (a)(5),
(a)(9), and (b) of this section, Sec. Sec. 35.6555(c), 35.6565 (the
first sentence in this section, the first sentence in paragraph (b) of
this section, and all of paragraph (d) of this section), 35.6570,
35.6575, and 35.6600. Political subdivisions and Tribes must follow all
of the requirements included or referenced in this section through
Sec. 35.6610.
(2) EPA review. EPA reserves the right to review any recipient's
procurement system or procurement action under a Cooperative Agreement.
(3) Code of conduct. The recipient must comply with the
requirements of 40 CFR 31.36(b)(3), which describes standards of
conduct for employees, officers, and agents of the recipient.
(4) Completion of contractual and administrative issues. (i) The
recipient is responsible for the settlement and satisfactory completion
in accordance with sound business judgment and good administrative
practice of all contractual and administrative issues arising out of
procurements under the Cooperative Agreement.
(ii) EPA will not substitute its judgment for that of the recipient
unless the matter is primarily a Federal concern.
(iii) Violations of law will be referred to the local, State,
Tribal, or Federal authority having proper jurisdiction.
(5) Selection procedures. The recipient must have written selection
procedures for procurement transactions.
(i) EPA may not participate in a recipient's selection panel except
to provide technical assistance. EPA staff providing such technical
assistance:
(A) Shall constitute a minority of the selection panel (limited to
making recommendations on qualified offers and acceptable proposals
based on published evaluation criteria) for the contractor selection
process; and
(B) Are not permitted to participate in the negotiation and award
of contracts.
(ii) When selecting a contractor, recipients:
(A) May not use EPA contractors to provide any support related to
procuring a State contractor.
(B) May use the Corps of Engineers for review of State bidding
documents, requests for proposals and bids and proposals received.
(6) Award. The recipient may award a contract only to a responsible
contractor, as described in 40 CFR 31.36(b)(8), and must ensure that
each contractor performs in accordance with all the provisions of the
contract. (See also Sec. 35.6020.)
(7) Protest procedures. The recipient must comply with the
requirements
[[Page 24516]]
described in 40 CFR 31.36(b)(12) regarding protest procedures.
(8) Reporting. The recipient must comply with the requirements for
procurement reporting contained in Sec. 35.6665.
(9) Intergovernmental agreements. (i) To foster greater economy and
efficiency, recipients are encouraged to enter into intergovernmental
agreements for procurement or use of common goods and services.
(ii) Although intergovernmental agreements are not subject to the
requirements set forth in this section through Sec. 35.6610, all
procurements under intergovernmental agreements are subject to these
requirements except for procurements that are:
(A) Incidental to the purpose of the assistance agreement; and
(B) Made through a central public procurement unit.
(10) Value engineering. The recipient is encouraged to include
value engineering clauses in contracts for construction projects of
sufficient size to offer reasonable opportunities for cost reductions.
(b) Contractor standards--(1) Disclosure requirements regarding
Potentially Responsible Party relationships. The recipient must require
each prospective contractor to provide with its bid or proposal:
(i) Information on its financial and business relationship with all
PRPs at the site and with the contractor's parent companies,
subsidiaries, affiliates, subcontractors, or current clients at the
site. Prospective contractors under a Core Program Cooperative
Agreement must provide comparable information for all sites within the
recipient's jurisdiction. (This disclosure requirement encompasses past
financial and business relationships, including services related to any
proposed or pending litigation, with such parties);
(ii) Certification that, to the best of its knowledge and belief,
it has disclosed such information or no such information exists; and
(iii) A statement that it shall disclose immediately any such
information discovered after submission of its bid or proposal or after
award. The recipient shall evaluate such information and if a member of
the contract team has a conflict of interest which prevents the team
from serving the best interests of the recipient, the prospective
contractor may be declared nonresponsible and the contract awarded to
the next eligible bidder or offeror.
(2) Conflict of interest--(i) Conflict of interest notification.
The recipient must require the contractor to notify the recipient of
any actual, apparent, or potential conflict of interest regarding any
individual working on a contract assignment or having access to
information regarding the contract. This notification shall include
both organizational conflicts of interest and personal conflicts of
interest. If a personal conflict of interest exists, the individual who
is affected shall be disqualified from taking part in any way in the
performance of the assigned work that created the conflict of interest
situation.
(ii) Contract provisions. The recipient must incorporate the
following provisions or their equivalents into all contracts, except
those for well-drilling, fence erecting, plumbing, utility hook-ups,
security guard services, or electrical services:
(A) Contractor data. The contractor shall not provide data
generated or otherwise obtained in the performance of contractor
responsibilities under a contract to any party other than the
recipient, EPA, or its authorized agents for the life of the contract,
and for a period of five years after completion of the contract.
(B) Employment. The contractor shall not accept employment from any
party other than the recipient or Federal agencies for work directly
related to the site(s) covered under the contract for five years after
the contract has terminated. The recipient agency may exempt the
contractor from this requirement through a written release. This
release must include EPA concurrence.
(3) Certification of independent price determination. The recipient
must require that each contractor include in its bid or proposal a
certification of independent price determination. This document
certifies that no collusion, as defined by Federal and State antitrust
laws, occurred during bid preparation.
(4) Recipient's Contractors. The recipient must require its
contractor to comply with the requirements in Sec. Sec. 35.6270(a)(1)
and (2); 35.6320 (a) and (b); 35.6335; 35.6700; and 35.6705. For
additional contractor requirements, see also Sec. 35.6710(c);
35.6590(b); and 35.6610.
Sec. 35.6555 Competition.
The recipient must conduct all procurement transactions in a manner
providing maximum full and open competition.
(a) Restrictions on competition. Inappropriate restrictions on
competition include the following:
(1) Placing unreasonable requirements on firms in order for them to
qualify to do business;
(2) Requiring unnecessary experience and excessive bonding
requirements;
(3) Noncompetitive pricing practices between firms or between
affiliated companies;
(4) Noncompetitive awards to consultants that are on retainer
contracts;
(5) Organizational conflicts of interest;
(6) Specifying only a ``brand name'' product, instead of allowing
``an equal'' product to be offered and describing the performance of
other relevant requirements of the procurement; and
(7) Any arbitrary action in the procurement process.
(b) Geographic and Indian Tribe preferences--(1) Geographic. When
conducting a procurement, the recipient must prohibit the use of
statutorily or administratively imposed in-State or local geographical
preferences in evaluating bids or proposals. However, nothing in this
section preempts State licensing laws. In addition, when contracting
for architectural and engineering (A/E) services, the recipient may use
geographic location as a selection criterion, provided that when
geographic location is used, its application leaves an appropriate
number of qualified firms, given the nature and size of the project, to
compete for the contract.
(2) Indian Tribe. Any contract or subcontract awarded by an Indian
Tribe or Indian intertribal consortium shall comply with the
requirements of 40 CFR 31.38, ``Indian Self Determination Act.''
(c) Written specifications. The recipient's written specifications
must include a clear and accurate description of the technical
requirements and the qualitative nature of the material, product or
service to be procured.
(1) This description must not contain features which unduly
restrict competition, unless the features are necessary to:
(i) Test or demonstrate a specific thing;
(ii) Provide for necessary interchangeability of parts and
equipment; or
(iii) Promote innovative technologies.
(2) The recipient must avoid the use of detailed product
specifications if at all possible.
(d) Public notice. When soliciting bids or proposals, the recipient
must allow sufficient time (generally 30 calendar days) between public
notice of the proposed project and the deadline for receipt of bids or
proposals. The recipient must publish the public notice in professional
journals, newspapers, or publications of general circulation over a
reasonable area.
[[Page 24517]]
(e) Prequalified lists. Recipients may use prequalified lists of
persons, firms, or products to acquire goods and services. The list
must be current and include enough qualified sources to ensure maximum
open and free competition. Recipients must not preclude potential
bidders from qualifying during the solicitation period.
Sec. 35.6565 Procurement methods.
The recipient must comply with the requirements for payment to
consultants described in 40 CFR 31.36(j). In addition, the recipient
must comply with the following requirements:
(a) Small purchase procedures. Small purchase procedures are those
relatively simple and informal procurement methods for securing
services, supplies, or other property that do not cost more than the
simplified acquisition threshold in the aggregate. If small purchase
procurements are used, the recipient must obtain and document price or
rate quotations from an adequate number of qualified sources.
(b) Sealed bids (formal advertising). (For a remedial action award
contract, except for Architectural/Engineering services and post-
removal site control, the recipient must obtain the award official's
approval to use a procurement method other than the sealed bid method.)
Bids are publicly solicited and a fixed-price contract (lump sum or
unit price) is awarded to the responsible bidder whose bid, conforming
with all the material terms and conditions of the invitation for bids,
is the lowest in price.
(1) In order for the recipient to use the sealed bid method, the
following conditions must be met:
(i) A complete, adequate, and realistic specification or purchase
description is available;
(ii) Two or more responsible bidders are willing and able to
compete effectively for the business; and
(iii) The procurement lends itself to a fixed-price contract and
the selection of the successful bidder can be made principally on the
basis of price.
(2) If the recipient uses the sealed bid method, the recipient must
comply with the following requirements:
(i) Publicly advertise the invitation for bids and solicit bids
from an adequate number of known suppliers, providing them sufficient
time prior to the date set for opening the bids;
(ii) The invitation for bids, which must include any specifications
and pertinent attachments, must define the items or services in order
for the bidder to properly respond;
(iii) Publicly open all bids at the time and place prescribed in
the invitation for bids;
(iv) Award the fixed-price contract in writing to the lowest
responsive and responsible bidder. Where specified in bidding
documents, the recipient shall consider factors such as discounts,
transportation cost, and life cycle costs in determining which bid is
lowest. The recipient may only use payment discounts to determine the
low bid when prior experience indicates that such discounts are usually
taken advantage of; and
(v) If there is a sound documented reason, the recipient may reject
any or all bids.
(c) Competitive proposals. The technique of competitive proposals
is normally conducted with more than one source submitting an offer,
and either a fixed-price or cost-reimbursement type contract is
awarded. It is generally used when conditions are not appropriate for
the use of sealed bids. If the recipient uses the competitive proposal
method, the following requirements apply:
(1) Recipients must publicize requests for proposals and all
evaluation factors and must identify their relative importance. The
recipient must honor any response to publicized requests for proposals
to the maximum extent practical;
(2) Recipients must solicit proposals from an adequate number of
qualified sources;
(3) Recipients must have a method for conducting technical
evaluations of the proposals received and for selecting awardees;
(4) Recipients must award the contract to the responsible firm
whose proposal is most advantageous to the program, with price and
other factors considered; and
(5) Recipients may use competitive proposal procedures for
qualifications-based procurement of architectural/engineering (A/E)
professional services whereby competitor's qualifications are evaluated
and the most qualified competitor is selected, subject to negotiation
of fair and reasonable compensation. This method, where price is not
used as a selection factor, may only be used in the procurement of A/E
professional services. The recipient may not use this method to
purchase other types of services even though A/E firms are a potential
source to perform the proposed effort.
(d) Noncompetitive proposals. (1) The recipient may procure by
noncompetitive proposals only when the award of a contract is
infeasible under small purchase procedures, sealed bids or competitive
proposals, and one of the following circumstances applies:
(i) The item is available only from a single source;
(ii) The public exigency or emergency for the requirement will not
permit a delay resulting from competitive solicitation (a declaration
of an emergency under State law does not necessarily constitute an
emergency under the EPA Superfund program's criteria);
(iii) The award official authorized noncompetitive proposals; or
(iv) After solicitation of a number of sources, competition is
determined to be inadequate.
(2) When using noncompetitive procurement, the recipient must
conduct a cost analysis in accordance with the requirements described
in Sec. 35.6585.
Sec. 35.6570 Use of the same engineer during subsequent phases of
response.
(a) If the public notice clearly stated the possibility that the
firm or individual selected could be awarded a contract for follow-on
services and initial procurement complied with the procurement
requirements, the recipient of a CERCLA remedial response Cooperative
Agreement may use the engineer procured to conduct any or all of the
follow-on engineering activities without going through the public
notice and evaluation procedures.
(b) The recipient may also use the same engineer during subsequent
phases of the project in the following cases:
(1) Where the recipient conducted the RI, FS, or design activities
without EPA assistance but is using CERCLA funds for follow-on
activities, the recipient may use the engineer for subsequent work
provided the recipient certifies:
(i) That it complied with the procurement requirements in Sec.
35.6565 when it selected the engineer and the code of conduct
requirements described in 40 CFR 31.36(b)(3).
(ii) That any CERCLA-funded contract between the engineer and the
recipient meets all of the other provisions as described in the
procurement requirements in this subpart.
(2) Where EPA conducted the RI, FS, or design activities but the
recipient will assume the responsibility for subsequent phases of
response under a Cooperative Agreement, the recipient may use, with the
award official's approval, EPA's engineer contractor without further
public notice or evaluation provided the recipient follows the rest of
the procurement requirements to award the contract.
[[Page 24518]]
Sec. 35.6575 Restrictions on types of contracts.
(a) Prohibited contracts. The recipient's procurement system must
not allow cost-plus-percentage-of-cost (e.g., a multiplier which
includes profit) or percentage-of-construction-cost types of contracts.
(b) Removal. Under a removal Cooperative Agreement, the recipient
must award a fixed-price contract (lump sum, unit price, or a
combination of the two) when procuring contractor support, regardless
of the procurement method selected, unless the recipient obtains the
award official's prior written approval.
(c) Time and material contracts. The recipient may use time and
material contracts only if no other type of contract is suitable, and
if the contract includes a ceiling price that the contractor exceeds at
its own risk.
Sec. 35.6580 Contracting with minority and women's business
enterprises (MBE/WBE), small businesses, and labor surplus area firms.
(a) Procedures. The recipient must comply with the six steps
described in 40 CFR 31.36(e)(2) to ensure that MBEs, WBEs, and small
businesses are used whenever possible as sources of supplies,
construction, and services. Tasks to encourage small, minority, and
women's business utilization in the Superfund program are eligible for
funding under Core Program Cooperative Agreements.
(b) Labor surplus firms. EPA encourages recipients to procure
supplies and services from labor surplus area firms.
(c) ``Fair share'' objectives. It is EPA's policy that recipients
award a fair share of contracts to small, minority and women's
businesses. The policy requires that fair share objectives for minority
and women-owned business enterprises be negotiated with the States and/
or recipients, but does not require fair share objectives be
established for small businesses.
(1) Each recipient must establish an annual ``fair share''
objective for MBE and WBE use. A recipient is not required to attain a
particular statistical level of participation by race, ethnicity, or
gender of the contractor's owners or managers.
(2) If the recipient is awarded more than one Cooperative Agreement
during the year, the recipient may negotiate an annual fair share for
all Cooperative Agreements for that year. It is not necessary to have a
fair share for each Cooperative Agreement. When a Cooperative Agreement
is awarded to a recipient with which a ``fair share'' agreement has not
been negotiated, the recipient must not award any contracts under the
Cooperative Agreement until the recipient has negotiated a fair share
objective with EPA.
Sec. 35.6585 Cost and price analysis.
(a) General. The recipient must conduct and document a cost or
price analysis in connection with every procurement action including
contract modification.
(1) Cost analysis. The recipient must conduct and document a cost
analysis for all negotiated contracts over the simplified acquisition
threshold and for all change orders regardless of price. A cost
analysis is not required when adequate price competition exists and the
recipient can establish price reasonableness. The recipient must base
its determination of price reasonableness on a catalog or market price
of a commercial product sold in substantial quantities to the general
public, or on prices set by law or regulation.
(2) Price analysis. In all instances other than those described in
paragraph (a)(1) of this section, the recipient must perform a price
analysis to determine the reasonableness of the proposed contract
price.
(b) Profit analysis. For each contract in which there is no price
competition and in all cases in which cost analysis is performed, the
recipient must negotiate profit as a separate element of the price. To
establish a fair and reasonable profit, consideration will be given to
the complexity of the work to be performed, the risk borne by the
contractor, the contractor's investment, the amount of subcontracting,
the quality of its record of past performance, and industry profit
rates in the surrounding geographical area for similar work.
Sec. 35.6590 Bonding and insurance.
(a) General. The recipient must meet the requirements regarding
bonding described in 40 CFR 31.36(h). The recipient must clearly and
accurately state in the contract documents the bonds and insurance
requirements, including the amounts of security coverage that a bidder
or offeror must provide.
(b) Accidents and catastrophic loss. The recipient must require the
contractor to provide insurance against accidents and catastrophic loss
to manage any risk inherent in completing the project.
Sec. 35.6595 Contract provisions.
(a) General. Each contract must be a sound and complete agreement,
and include the following provisions:
(1) Nature, scope, and extent of work to be performed;
(2) Time frame for performance;
(3) Total cost of the contract; and
(4) Payment provisions.
(b) Other contract provisions. Recipients' contracts must include
the following provisions:
(1) Energy efficiency. A contract must comply with mandatory
standards and policies on energy efficiency contained in the State's
energy conservation plan, which is issued under 10 CFR part 420.
(2) Patents inventions, and copyrights. All contracts must include
notice of EPA requirements and regulations pertaining to reporting and
patent rights under any contract involving research, developmental,
experimental or demonstration work with respect to any discovery or
invention which arises or is developed while conducting work under a
contract. This notice shall also include EPA requirements and
regulations pertaining to copyrights and rights to data contained in 40
CFR 31.34.
(3) Labor standards. The recipient must comply with 40 CFR
31.36(i)(3) through (6).
(4) Conflict of interest. The recipient must include provisions
pertaining to conflict of interest as described in Sec.
35.6550(b)(2)(ii).
Sec. 35.6600 Contractor claims.
(a) General. The recipient must conduct an administrative and
technical review of each claim before EPA will consider funding these
costs.
(b) Claims settlement. The recipient may incur costs (including
legal, technical and administrative) to assess the merits of or to
negotiate the settlement of a claim by or against the recipient under a
contract, provided:
(1) The claim arises from work within the scope of the Cooperative
Agreement;
(2) A formal Cooperative Agreement amendment is executed
specifically covering the costs before they are incurred;
(3) The costs are not incurred to prepare documentation that should
be prepared by the contractor to support a claim against the recipient;
and
(4) The award official determines that there is a significant
Federal interest in the issues involved in the claim.
(c) Claims defense. The recipient may incur costs (including legal,
technical and administrative) to defend against a contractor claim for
increased costs under a contract or to prosecute a claim to enforce a
contract provided:
[[Page 24519]]
(1) The claim arises from work within the scope of the Cooperative
Agreement;
(2) A formal Cooperative Agreement amendment is executed
specifically covering the costs before they are incurred;
(3) Settlement of the claim cannot occur without arbitration or
litigation;
(4) The claim does not result from the recipient's mismanagement;
(5) The award official determines that there is a significant
Federal interest in the issues involved in the claim; and
(6) In the case of defending against a contractor claim, the claim
does not result from the recipient's responsibility for the improper
action of others.
Sec. 35.6605 Privity of contract.
Neither EPA nor the United States shall be a party to any contract
nor to any solicitation or request for proposals.
Sec. 35.6610 Contracts awarded by a contractor.
The recipient must require its contractor to comply with the
following provisions in the award of contracts (i.e. subcontracts).
(This section does not apply to a supplier's procurement of materials
to produce equipment, materials and catalog, off-the-shelf, or
manufactured items.)
(a) The requirements referenced in Sec. 35.6020.
(b) The limitations on contract award in Sec. 35.6550(a)(6).
(c) The requirements regarding minority and women's business
enterprises, and small business in Sec. 35.6580.
(d) The requirements regarding specifications in Sec. 35.6555
(a)(6) and (c).
(e) The Federal cost principles in 40 CFR 31.22.
(f) The prohibited types of contracts in Sec. 35.6575(a).
(g) The cost, price analysis, and profit analysis requirements in
Sec. 35.6585.
(h) The applicable provisions in Sec. 35.6595 (b).
(i) The applicable provisions in Sec. 35.6555(b)(2).
Reports Required Under a Cooperative Agreement
Sec. 35.6650 Progress reports.
(a) Reporting frequency. The recipient must submit progress reports
as specified in the Cooperative Agreement. Progress reports will be
required no more frequently than quarterly, and will be required at
least annually. The reports shall be due within 30 days after the
reporting period. The final progress report shall be due 90 days after
expiration or termination of the Cooperative Agreement.
(b) Content. The progress report must contain the following
information:
(1) An explanation of work accomplished during the reporting
period, delays, or other problems, if any, and a description of the
corrective measures that are planned. For pre-remedial Cooperative
Agreements, the report must include a list of the site-specific
products completed and the estimated number of technical hours spent to
complete each product.
(2) A comparison of the percentage of the project completed to the
project schedule, and an explanation of significant discrepancies.
(3) A comparison of the estimated funds spent to date to planned
expenditures and an explanation of significant discrepancies. For
remedial, enforcement, and removal reports, the comparison must be on a
per task basis.
(4) An estimate of the time and funds needed to complete the work
required in the Cooperative Agreement, a comparison of that estimate to
the time and funds remaining, and a justification for any increase.
Sec. 35.6655 Notification of significant developments.
Events may occur between the scheduled performance reporting dates
which have significant impact upon the Cooperative Agreement-supported
activity. In such cases, the recipient must inform the EPA project
officer as soon as the following types of conditions become known:
(a) Problems, delays, or adverse conditions which will materially
impair the ability to meet the objective of the award. This disclosure
must include a statement of the action taken, or contemplated, and any
assistance needed to resolve the situation.
(b) Favorable developments which enable meeting time schedules and
objectives sooner or at less cost than anticipated or producing more
beneficial results than originally planned.
Sec. 35.6660 Property inventory reports.
(a) CERCLA-funded property--(1) Content. The report must contain
the following information:
(i) Classification and value of remaining supplies;
(ii) Description of all equipment purchased with CERCLA funds,
including its current condition;
(iii) Verification of the current use and continued need for the
equipment by site, activity, and operable unit, as applicable;
(iv) Notification of any property which has been stolen or
vandalized; and
(v) A request for disposition instructions for any equipment no
longer needed on the project.
(2) Reporting frequency. The recipient must submit an inventory
report to EPA at the following times:
(i) Within 90 days after completing any CERCLA-funded project or
any response activity at a site; and
(ii) When the equipment is no longer needed for any CERCLA-funded
project or any response activity at a site.
(b) Federally owned property--(1) Content. The recipient must
include the following information for each federally owned item in the
inventory report:
(i) Description;
(ii) Decal number;
(iii) Current condition; and
(iv) Request for disposition instructions.
(2) Reporting frequency. The recipient must submit an inventory
report to the appropriate EPA property accountable officer at the
following times:
(i) Annually, due to EPA on the anniversary date of the award;
(ii) When the property is no longer needed; and
(iii) Within 90 days after the end of the project period.
Sec. 35.6665 Procurement report.
(a) The recipient must report on its use of MBE (minority business
enterprise) and WBE (women's business enterprise) firms by submitting a
completed Minority and Women's Business Utilization Report (SF-334) to
the award official. Reporting commences with the recipient's award of
its first contract and continues until it and its contractors have
awarded their last contract for the activities or tasks identified in
the Cooperative Agreement. The recipient must submit the MBE/WBE
Utilization Report within 30 days after the end of each Federal fiscal
quarter, regardless of whether the recipient awards a contract to an
MBE or WBE during that quarter.
(b) The recipient must also report on its efforts to encourage MBE
participation in the Superfund program pursuant to CERCLA Sec. 105(f).
Information on the recipient's efforts to encourage MBE participation
in the Superfund program may be included in each SF-334 submitted
quarterly, but is required in the SF-334 submitted for the fourth
quarter, due November 1 of each year.
Sec. 35.6670 Financial reports.
(a) General. The recipient must comply with the requirements
regarding financial reporting described in 40 CFR 31.41.
(b) Financial Status Report--(1) Content. (i) The Financial Status
Report (SF-269) must include financial information by site, activity,
and operable unit, as applicable.
[[Page 24520]]
(ii) A final Financial Status Report (FSR) must have no
unliquidated obligations. If any obligations remain unliquidated, the
FSR is considered an interim report and the recipient must submit a
final FSR to EPA after liquidating all obligations.
(2) Reporting frequency. The recipient must file a Financial Status
Report as follows:
(i) Annually due 90 days after the end of the Federal fiscal year
or as specified in the Cooperative Agreement; or if quarterly or
semiannual reports are required in accordance with 40 CFR 31.41(b)(3),
due 30 days after the reporting period;
(ii) Within 90 calendar days after completing each CERCLA-funded
response activity at a site (submit the FSR only for each completed
activity); and
(iii) Within 90 calendar days after termination or closeout of the
Cooperative Agreement.
Records Requirements Under a Cooperative Agreement
Sec. 35.6700 Project records.
The lead agency for the response action must compile and maintain
an administrative record consistent with section 113 of CERCLA, the
National Contingency Plan, and relevant EPA policy and guidance. In
addition, recipients of assistance (whether lead or support agency) are
responsible for maintaining project files described as follows.
(a) General. The recipient must maintain project records by site,
activity, and operable unit, as applicable.
(b) Financial records. The recipient must maintain records which
support the following items:
(1) Amount of funds received and expended; and
(2) Direct and indirect project cost.
(c) Property records. The recipient must maintain records which
support the following items:
(1) Description of the property;
(2) Manufacturer's serial number, model number, or other
identification number;
(3) Source of the property, including the assistance identification
number;
(4) Information regarding whether the title is vested in the
recipient or EPA;
(5) Unit acquisition date and cost;
(6) Percentage of EPA's interest;
(7) Location, use and condition (by site, activity, and operable
unit, as applicable) and the date this information was recorded; and
(8) Ultimate disposition data, including the sales price or the
method used to determine the price, or the method used to determine the
value of EPA's interest for which the recipient compensates EPA in
accordance with Sec. Sec. 35.6340, 35.6345, and 35.6350.
(d) Procurement records--(1) General. The recipient must maintain
records which support the following items, and must make them available
to the public:
(i) The reasons for rejecting any or all bids; and
(ii) The justification for a procurement made on a noncompetitively
negotiated basis.
(2) Procurements in excess of the simplified acquisition threshold.
The recipient's records and files for procurements in excess of the
simplified acquisition threshold must include the following
information, in addition to the information required in paragraph
(d)(1) of this section:
(i) The basis for contractor selection;
(ii) A written justification for selecting the procurement method;
(iii) A written justification for use of any specification which
does not provide for maximum free and open competition;
(iv) A written justification for the choice of contract type; and
(v) The basis for award cost or price, including a copy of the cost
or price analysis made in accordance with Sec. 35.6585 and
documentation of negotiations.
(e) Other records. The recipient must maintain records which
support the following items:
(1) Time and attendance records and supporting documentation;
(2) Documentation of compliance with statutes and regulations that
apply to the project; and
(3) The number of site-specific technical hours spent to complete
each pre-remedial product.
Sec. 35.6705 Records retention.
(a) Applicability. This requirement applies to all financial and
programmatic records, supporting documents, statistical records, and
other records which are required to be maintained by the terms, program
regulations, or the Cooperative Agreement, or are otherwise reasonably
considered as pertinent to program regulations or the Cooperative
Agreement.
(b) Length of retention period. The recipient must maintain all
records for 10 years following submission of the final Financial Status
Report unless otherwise directed by the EPA award official, and must
obtain written approval from the EPA award official before destroying
any records. If any litigation, claim, negotiation, audit, cost
recovery, or other action involving the records has been started before
the expiration of the ten-year period, the records must be retained
until completion of the action and resolution of all issues which arise
from it, or until the end of the regular ten-year period, whichever is
later.
(c) Substitution of an unalterable electronic format. An
unalterable electronic format, acceptable to EPA, may be substituted
for the original records. The copying of any unalterable electronic
format must be performed in accordance with the technical regulations
concerning Federal Government records (36 CFR parts 1220 through 1234)
and EPA records management requirements.
(d) Starting date of retention period. The recipient must comply
with the requirements regarding the starting dates for records
retention described in 40 CFR 31.42(c) (1) and (2).
Sec. 35.6710 Records access.
(a) Recipient requirements. The recipient must comply with the
requirements regarding records access described in 40 CFR 31.42(e).
(b) Availability of records. The recipient must, with the exception
of certain policy, deliberative, and enforcement documents which may be
held confidential, ensure that all files are available to the public.
(c) Contractor requirements. The recipient must require its
contractor to comply with the requirements regarding records access
described in 40 CFR 31.36(i)(10).
Other Administrative Requirements for Cooperative Agreements
Sec. 35.6750 Modifications.
The recipient must comply with the requirements regarding changes
to the Cooperative Agreement described in 40 CFR 31.30.
Sec. 35.6755 Monitoring program performance.
The recipient must comply with the requirements regarding program
performance monitoring described in 40 CFR 31.40 (a) and (e).
Sec. 35.6760 Enforcement and termination for convenience.
The recipient must comply with all terms and conditions in the
Cooperative Agreement, and is subject to the requirements regarding
enforcement of the terms of an award and termination for convenience
described in 40 CFR 31.43 and 31.44.
[[Page 24521]]
Sec. 35.6765 Non-Federal audit.
The recipient must comply with the requirements regarding non-
Federal audits described in 40 CFR 31.26.
Sec. 35.6770 Disputes.
The recipient must comply with the requirements regarding dispute
resolution procedures described in 40 CFR 31.70.
Sec. 35.6775 Exclusion of third-party benefits.
The Cooperative Agreement benefits only the signatories to the
Cooperative Agreement.
Sec. 35.6780 Closeout.
(a) Closeout of a Cooperative Agreement, or an activity under a
Cooperative Agreement, can take place in the following situations:
(1) After the completion of all work for a response activity at a
site; or
(2) After all activities under a Cooperative Agreement have been
completed; or
(3) Upon termination of the Cooperative Agreement.
(b) The recipient must comply with the closeout requirements
described in 40 CFR 31.50 and 31.51.
(c) After closeout, EPA may monitor the recipients' compliance with
the assurance to provide all future operation and maintenance as
required by CERCLA section 104(c) and addressed in 40 CFR 300.510(c)(1)
of the NCP.
Sec. 35.6785 Collection of amounts due.
The recipient must comply with the requirements described in 40 CFR
31.52, regarding collection of amounts due.
Sec. 35.6790 High risk recipients.
If EPA determines that a recipient is not responsible, EPA may
impose restrictions on the award as described in 40 CFR 31.12.
Requirements for Administering a Superfund State Contract (SSC)
Sec. 35.6800 Superfund State Contract.
A Superfund State Contract (SSC) with a State is required before
EPA can obligate or expend funds for a remedial action at a site within
the State and before EPA or a political subdivision can conduct the
remedial action. An SSC also ensures State or Indian Tribe involvement
consistent with CERCLA sections 121(f) and 126, respectively, and
obtains the required section 104 assurances (See Sec. 35.6105(b)). An
SSC may also be used to document the roles and responsibilities of a
State, Indian Tribe, and political subdivision during any response
action at a site. A political subdivision may be a signatory to the
SSC.
Sec. 35.6805 Contents of an SSC.
The SSC must include the following provisions:
(a) General authorities, which documents the relevant statutes and
regulations (of each government entity that is a party to the contract)
governing the contract.
(b) Purpose of the SSC, which describes the response activities to
be conducted and the benefits to be derived.
(c) Negation of agency relationship between the signatories, which
states that no signatory of the SSC can represent or act on the behalf
of any other signatory in any matter associated with the SSC.
(d) A site description, pursuant to Sec. 35.6105(a)(2)(i).
(e) A site-specific Statement of Work, pursuant to Sec.
35.6105(a)(2)(ii) and a statement of whether the contract constitutes
an initial SSC or an amendment to an existing contract.
(f) A statement of intention to follow EPA policy and guidance.
(g) A project schedule to be prepared during response activities.
(h) A statement designating a primary contact for each party to the
contract, which designates representatives to act on behalf of each
signatory in the implementation of the contract. This statement must
document the authority of each project manager to approve modifications
to the project so long as such changes are within the scope of the
contract and do not significantly impact the SSC.
(i) The CERCLA assurances, as appropriate, described as follows:
(1) Operation and maintenance. The State must provide an assurance
pursuant to Sec. 35.6105(b)(1). The State's responsibility for
operation and maintenance generally begins when EPA determines that the
remedy is operational and functional or one year after construction
completion, whichever is sooner (See, 40 CFR 300.435(f)).
(2) Twenty-year waste capacity. The State must provide an assurance
pursuant to Sec. 35.6105(b)(3).
(3) Off-site storage, treatment, or disposal. If off-site storage,
destruction, treatment, or disposal is required, the State must provide
an assurance pursuant to Sec. 35.6105(b)(4); the political subdivision
may not provide this assurance.
(4) Real property acquisition. When real property must be acquired,
the State must provide an assurance pursuant to Sec. 35.6105(b)(5).
(5) Provision of State cost share. The State must provide
assurances for cost sharing pursuant to Sec. 35.6105(b)(2). Even if
the political subdivision is providing the actual cost share, the State
must guarantee payment of the cost share in the event of default by the
political subdivision.
(j) Cost share conditions, which include:
(1) An estimate of the response action cost (excluding EPA's
indirect costs) that requires cost share;
(2) The basis for arriving at this figure (See Sec. 35.6285(c) for
credit provisions); and
(3) The payment schedule as negotiated by the signatories, and
consistent with either a lump-sum or incremental-payment option. Upon
completion of activities in the site-specific Statement of Work, EPA
shall invoice the State for its final payment, with the exception of
any change orders and claims handled during reconciliation of the SSC.
(k) Reconciliation provision, which states that the SSC remains in
effect until the financial settlement of project costs and final
reconciliation of response costs (including all change orders, claims,
overpayments, reimbursements, etc.) ensure that both EPA and the State
have satisfied the cost share requirement contained in section 104 of
CERCLA, as amended. Overpayments in an SSC may not be used to meet the
cost-sharing obligation at another site. Reimbursements for any
overpayment will be made to the payer identified in the SSC.
(l) Amendability of the SSC, which provides that:
(1) Formal amendments are required when alterations to CERCLA-
funded activities are necessary or when alterations impact the State's
assurances pursuant to the National Contingency Plan and CERCLA, as
amended. Such amendments must include a Statement of Work for the
amendment as described in paragraph (e) of this section; and
(2) Any change(s) in the SSC must be agreed to, in writing, by the
signatories, except as provided elsewhere in the SSC, and must be
reflected in all response agreements affected by the change(s).
(m) List of support agency Cooperative Agreements that are also in
place for the site.
(n) Litigation, which describes EPA's right to bring an action
against any party under section 106 of CERCLA to compel cleanup, or for
cost recovery under section 107 of CERCLA.
(o) Sanctions for failure to comply with SSC terms, which states
that if the signatories fail to comply with the terms of the SSC, EPA
may proceed under the provisions of section 104(d)(2) of CERCLA and may
seek in the
[[Page 24522]]
appropriate court of competent jurisdiction to enforce the SSC or to
recover any funds advanced or any costs incurred due to a breach of the
SSC. Other signatories to the SSC may seek remedies in the appropriate
court of competent jurisdiction.
(p) Site access. The State or political subdivision or Indian Tribe
is expected to use its own authority to secure access to the site and
adjacent properties, as well as all rights-of-way and easements
necessary to complete the response actions undertaken pursuant to the
SSC.
(q) Final inspection of the remedy. The SSC must include a
statement that following completion of the remedial action, the State
and EPA shall jointly inspect the project to determine that the remedy
is functioning properly and is performing as designed.
(r) Exclusion of third-party benefits, which states that the SSC is
intended to benefit only the signatories of the SSC, and extends no
benefit or right to any third party not a signatory to the SSC.
(s) Any other provision deemed necessary by all parties to
facilitate the response activities covered by the SSC.
(t) State review. The State or Indian Tribe must review and comment
on the response actions pursuant to the SSC. Unless otherwise stated in
the SSC, all time frames for review must follow those prescribed in the
NCP (40 CFR part 300).
(u) Responsible party activities, which states that if a
Responsible Party takes over any activities at the site, the SSC will
be modified or terminated, as appropriate.
(v) Out-of-State or out-of-an-Indian-Tribal-area-of-Indian-country
transfers of CERCLA waste, which states that, unless otherwise provided
for by EPA or a political subdivision, the State or Indian Tribe must
provide the notification requirements described in Sec. 35.6120.
Sec. 35.6815 Administrative requirements.
In addition to the requirements specified in Sec. 35.6805, the
State and/or political subdivision must comply with the following:
(a) Financial administration. The State and/or political
subdivision must comply with the following requirements regarding
financial administration:
(1) Payment. The State may pay for its share of the costs of the
response activities in cash or credit. As appropriate, specific credit
provisions should be included in the SSC consistent with the
requirements described in Sec. 35.6285(c). The State may not pay for
its cost share using in-kind services, unless the State has entered
into a support agency Cooperative Agreement with EPA. The use of the
support agency Cooperative Agreement as a vehicle for providing cost
share must be documented in the SSC. If the political subdivision
agrees to provide all or part of the State's cost share pursuant to a
political subdivision-lead Cooperative Agreement, the political
subdivision may pay for those costs in cash or in-kind services under
that agreement. The use of a political subdivision-lead Cooperative
Agreement as a vehicle for providing cost share must also be documented
in the SSC. The specific payment terms must be documented in the SSC
pursuant to Sec. 35.6805.
(2) Collection of amounts due. The State and/or political
subdivision must comply with the requirements described in 40 CFR
31.52(a) regarding collection of amounts due.
(3) Failure to comply with negotiated payment terms. Failure to
comply with negotiated payment terms may be construed as default by the
State on its required assurances, even if the political subdivision is
responsible for providing all or part of the cost share. (See Sec.
35.6805(i)(5).)
(b) Personal property. The State, Indian Tribe, or political
subdivision is required to accept title. The following requirements
apply to equipment used as all or part of the remedy:
(1) Fixed in-place equipment. EPA no longer has an interest in
fixed in-place equipment once the equipment is installed.
(2) Equipment that is an integral part of services to individuals.
EPA no longer has an interest in equipment that is an integral part of
services to individuals, such as pipes, lines, or pumps providing
hookups for homeowners on an existing water distribution system, once
EPA certifies that the remedy is operational and functional.
(c) Reports. The State and/or political subdivision or Indian Tribe
must comply with the following requirements regarding reports:
(1) EPA-lead. The nature and frequency of reports between EPA and
the State or Indian Tribe will be specified in the SSC.
(2) Political subdivision-lead. The political subdivision must
submit to the State a copy of all reports which the political
subdivision is required to submit to EPA in accordance with the
requirements of its Cooperative Agreement. (See Sec. 35.6650 for
requirements regarding progress reports.)
(d) Records. The State and political subdivision or Indian Tribe
must maintain records on a site-specific basis. The State and political
subdivision or Indian Tribe must comply with the requirements regarding
record retention described in Sec. 35.6705 and the requirements
regarding record access described in Sec. 35.6710.
Sec. 35.6820 Conclusion of the SSC.
(a) In order to conclude the SSC, the signatories must:
(1) Satisfactorily complete the response activities at the site and
make all payments based upon project costs determined in Sec.
35.6805(j);
(2) Produce a final accounting of all project costs, including
change orders and outstanding contractor claims;
(3) Submit all State cost share payments to EPA (See Sec.
35.6805(i)(5));
(4) Assume responsibility for all future operation and maintenance
as required by CERCLA section 104(c) and addressed in 40 CFR 300.510
(c)(1) of the NCP, and if applicable, accept transfer of any Federal
interest in real property (See Sec. 35.6805(i)(4)).
(b) After the administrative conclusion of the Superfund State
Contract, EPA may monitor the signatory's compliance with assurances to
provide all future operation and maintenance as required by CERCLA
section 104(c) and addressed in 40 CFR 300.510(c)(1) of the NCP.
[FR Doc. E7-7990 Filed 5-1-07; 8:45 am]
BILLING CODE 6560-50-P