Professional Documents
Culture Documents
CFR 2021 Title40 Vol1
CFR 2021 Title40 Vol1
Protection of Environment
Parts 1 to 49
As of July 1, 2021
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U.S. GOVERNMENT OFFICIAL EDITION NOTICE
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Table of Contents
Page
Explanation ................................................................................................ v
Title 40:
Finding Aids:
iii
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Cite this Code: CFR
iv
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Explanation
The Code of Federal Regulations is a codification of the general and permanent
rules published in the Federal Register by the Executive departments and agen-
cies of the Federal Government. The Code is divided into 50 titles which represent
broad areas subject to Federal regulation. Each title is divided into chapters
which usually bear the name of the issuing agency. Each chapter is further sub-
divided into parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year and issued
on a quarterly basis approximately as follows:
Title 1 through Title 16..............................................................as of January 1
Title 17 through Title 27 .................................................................as of April 1
Title 28 through Title 41 ..................................................................as of July 1
Title 42 through Title 50 .............................................................as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially noticed (44
U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text
of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual issues
of the Federal Register. These two publications must be used together to deter-
mine the latest version of any given rule.
To determine whether a Code volume has been amended since its revision date
(in this case, July 1, 2021), consult the ‘‘List of CFR Sections Affected (LSA),’’
which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which
appears in the Reader Aids section of the daily Federal Register. These two lists
will identify the Federal Register page number of the latest amendment of any
given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal Reg-
ister since the last revision of that volume of the Code. Source citations for
the regulations are referred to by volume number and page number of the Federal
Register and date of publication. Publication dates and effective dates are usu-
ally not the same and care must be exercised by the user in determining the
actual effective date. In instances where the effective date is beyond the cut-
off date for the Code a note has been inserted to reflect the future effective
date. In those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be inserted following
the text.
OMB CONTROL NUMBERS
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The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies
to display an OMB control number with their information collection request.
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Many agencies have begun publishing numerous OMB control numbers as amend-
ments to existing regulations in the CFR. These OMB numbers are placed as
close as possible to the applicable recordkeeping or reporting requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of the revision
date stated on the cover of each volume are not carried. Code users may find
the text of provisions in effect on any given date in the past by using the appro-
priate List of CFR Sections Affected (LSA). For the convenience of the reader,
a ‘‘List of CFR Sections Affected’’ is published at the end of each CFR volume.
For changes to the Code prior to the LSA listings at the end of the volume,
consult previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published for 1949-
1963, 1964-1972, 1973-1985, and 1986-2000.
‘‘[RESERVED]’’ TERMINOLOGY
The term ‘‘[Reserved]’’ is used as a place holder within the Code of Federal
Regulations. An agency may add regulatory information at a ‘‘[Reserved]’’ loca-
tion at any time. Occasionally ‘‘[Reserved]’’ is used editorially to indicate that
a portion of the CFR was left vacant and not dropped in error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was established
by statute and allows Federal agencies to meet the requirement to publish regu-
lations in the Federal Register by referring to materials already published else-
where. For an incorporation to be valid, the Director of the Federal Register
must approve it. The legal effect of incorporation by reference is that the mate-
rial is treated as if it were published in full in the Federal Register (5 U.S.C.
552(a)). This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the Federal Register
will approve an incorporation by reference only when the requirements of 1 CFR
part 51 are met. Some of the elements on which approval is based are:
(a) The incorporation will substantially reduce the volume of material pub-
lished in the Federal Register.
(b) The matter incorporated is in fact available to the extent necessary to
afford fairness and uniformity in the administrative process.
(c) The incorporating document is drafted and submitted for publication in
accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If you have any
problem locating or obtaining a copy of material listed as an approved incorpora-
tion by reference, please contact the agency that issued the regulation containing
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available, please notify the Director of the Federal Register, National Archives
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call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a separate
volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS.
This volume contains the Parallel Table of Authorities and Rules. A list of CFR
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titles, chapters, subchapters, and parts and an alphabetical list of agencies pub-
lishing in the CFR are also included in this volume.
An index to the text of ‘‘Title 3—The President’’ is carried within that volume.
vi
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The Federal Register Index is issued monthly in cumulative form. This index
is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Reg-
ister.
A List of CFR Sections Affected (LSA) is published monthly, keyed to the
revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing in the
Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this volume,
contact the issuing agency. The issuing agency’s name appears at the top of
odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202–741–6000 or write
to the Director, Office of the Federal Register, National Archives and Records
Administration, 8601 Adelphi Road, College Park, MD 20740-6001 or e-mail
fedreg.info@nara.gov.
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The full text of the Code of Federal Regulations, the LSA (List of CFR Sections
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Federal Register finding aids, and related information. Connect to NARA’s
website at www.archives.gov/federal-register.
The e-CFR is a regularly updated, unofficial editorial compilation of CFR ma-
terial and Federal Register amendments, produced by the Office of the Federal
Register and the Government Publishing Office. It is available at www.ecfr.gov.
OLIVER A. POTTS,
Director,
Office of the Federal Register
July 1, 2021.
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vii
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THIS TITLE
For this volume, Susannah C. Hurley was Chief Editor. The Code of Federal
Regulations publication program is under the direction of John Hyrum Martinez,
assisted by Stephen J. Frattini.
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ix
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Title 40—Protection of
Environment
(This book contains parts 1 to 49)
Part
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CHAPTER I—ENVIRONMENTAL PROTECTION
AGENCY
SUBCHAPTER A—GENERAL
Part Page
1 Statement of organization and general information 5
2 Public information .................................................. 22
3 Cross-media electronic reporting ............................ 68
4 Uniform relocation assistance and real property
acquisition for Federal and federally assisted
programs .............................................................. 80
5 Nondiscrimination on the basis of sex in education
programs or activities receiving Federal finan-
cial assistance ...................................................... 80
6 Procedures for implementing the National Envi-
ronmental Policy Act and assessing the environ-
mental effects abroad of EPA actions .................. 96
7 Nondiscrimination in programs or activities re-
ceiving Federal assistance from the Environ-
mental Protection Agency ................................... 114
8 Environmental impact assessment of nongovern-
mental activities in Antarctica ........................... 130
9 OMB approvals under the Paperwork Reduction
Act ....................................................................... 138
10 Administrative claims under Federal Tort Claims
Act ....................................................................... 169
11 Security classification regulations pursuant to Ex-
ecutive Order 11652 ............................................... 173
12 Nondiscrimination on the basis of handicap in pro-
grams or activities conducted by the Environ-
mental Protection Agency ................................... 177
13 Claims collection standards .................................... 183
14 Employee personal property claims ........................ 199
16 Implementation of Privacy Act of 1974 ................... 203
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40 CFR Ch. I (7–1–21 Edition)
Part Page
18 Environmental protection research fellowships and
special research consultants for environmental
protection ............................................................. 220
19 Adjustment of civil monetary penalties for infla-
tion ....................................................................... 223
20 Certification of facilities ........................................ 229
21 Small business ......................................................... 237
22 Consolidated rules of practice governing the ad-
ministrative assessment of civil penalties and
the revocation/termination or suspension of per-
mits ...................................................................... 246
23 Judicial review under EPA-administered statutes .. 273
24 Rules governing issuance of and administrative
hearings on interim status corrective action or-
ders ....................................................................... 275
25 Public participation in programs under the Re-
source Conservation and Recovery Act, the Safe
Drinking Water Act, and the Clean Water Act .... 283
26 Protection of human subjects ................................. 292
27 Program fraud civil remedies .................................. 330
29 Intergovernmental review of Environmental Pro-
tection Agency programs and activities .............. 347
30 [Reserved]
31 On-site civil inspection procedures ......................... 350
SUBCHAPTER B—GRANTS AND OTHER FEDERAL ASSISTANCE
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SUBCHAPTER A—GENERAL
tive governmental action to assure the (b) The address of (and States served
protection of the environment by abat- by) the EPA Regional Offices (see § 1.61)
ing and controlling pollution on a sys- are:
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§ 1.21 40 CFR Ch. I (7–1–21 Edition)
(1) Region I, U.S. Environmental Pro- Seattle, WA 98101. (Alaska, Idaho, Or-
tection Agency, 5 Post Office Square— egon, and Washington.)
Suite 100, Boston, MA 02109–3912. (Con-
[50 FR 26721, June 28, 1985, as amended at 62
necticut, Maine, Massachusetts, New FR 1833, Jan. 14, 1997; 75 FR 69349, Nov. 12,
Hampshire, Rhode Island, and 2010; 76 FR 49670, Aug. 11, 2011; 78 FR 37975,
Vermont.) June 25, 2013; 84 FR 44226, Aug. 23, 2019]
(2) Region II, U.S. Environmental
Protection Agency, Room 900, 26 Fed-
eral Plaza, New York, NY 10278. (New Subpart B—Headquarters
Jersey, New York, Puerto Rico, and the § 1.21 General.
Virgin Islands.)
(3) Region III, U.S. Environmental EPA Headquarters is comprised of:
Protection Agency, 841 Chestnut (a) The Office of the Administrator;
Street, Philadelphia, PA 19107. (Dela- (b) Two Associate Administrators
ware, Maryland, Pennsylvania, Vir- and four staff offices which advise the
ginia, West Virginia, and the District Administrator on cross-cutting Agency
of Columbia.) headquarters and regional issues and
(4) Region IV, U.S. Environmental conduct programs with respect to
Protection Agency, 345 Courtland EPA’s interface with other national
Street NE., Atlanta, GA 30365. (Ala- and international governmental orga-
bama, Florida, Georgia, Kentucky, nizations;
Mississippi, North Carolina, South (c) The Office of Inspector General;
Carolina, and Tennessee.) (d) The Office of General Counsel; and
(5) Region V, U.S. Environmental (e) Nine operational offices, each
Protection Agency, 77 West Jackson headed by an Assistant Administrator,
Boulevard, Chicago, IL 60604. (Illinois, responsible for carrying out EPA’s
Indiana, Michigan, Minnesota, Ohio major environmental and administra-
and Wisconsin.) tive programs.
(6) EPA Region 6, 1201 Elm Street,
Suite 500, Dallas, Texas 75270–2102. (Ar- § 1.23 Office of the Administrator.
kansas, Louisiana, New Mexico, Okla-
homa, and Texas.) The Environmental Protection Agen-
(7) Region 7, U.S. Environmental Pro- cy is headed by an Administrator who
tection Agency, 11201 Renner Boule- is appointed by the President, by and
vard, Lenexa, Kansas 66219. (Iowa, Kan- with the consent of the Senate. The
sas, Missouri, and Nebraska.) Administrator is responsible to the
(8) Region VIII, U.S. Environmental President for providing overall super-
Protection Agency, 999 18th street, One vision to the Agency, and is assisted by
Denver Place, Denver, CO 80202. (Colo- a Deputy Administrator also appointed
rado, Montana, North Dakota, South by the President, by and with the con-
Dakota, Utah, and Wyoming.) sent of the Senate. The Deputy Admin-
(9) Region IX, U.S. Environmental istrator assists the Administrator in
Protection Agency, 75 Hawthorne the discharge of Agency duties and re-
Street, San Francisco, California 94105. sponsibilities and serves as Acting Ad-
(Arizona, California, Hawaii, Nevada; ministrator in the absence of the Ad-
the territories of American Samoa and ministrator.
Guam; the Commonwealth of the
Northern Mariana Islands; the terri- § 1.25 Staff offices.
tories of Baker Island, Howland Island, (a) Office of Administrative Law
Jarvis Island, Johnston Atoll, Kingman Judges. The Office of Administrative
Reef, Midway Atoll, Palmyra Atoll, Law Judges, under the supervision of
and Wake Islands; and certain U.S. the Chief Administrative Law Judge, is
Government activities in the freely as- responsible for presiding over and con-
sociated states of the Republic of the ducting formal hearings, and issuance
Marshall Islands, the Federated States of initial decisions, if appropriate, in
of Micronesia, and the Republic of such proceedings. The Office provides
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Environmental Protection Agency § 1.25
Judges, in certain Agency Regional Of- Agency’s small and disadvantaged busi-
fices. The Office provides the Agency ness utilization responsibilities. The
Hearing Clerk. Office provides information and assist-
(b) Office of Civil Rights. The Office of ance to components of the Agency’s
Civil Rights, under the supervision of a field offices responsible for carrying
Director, serves as the principal ad- out related activities. The Office devel-
viser to the Administrator with respect ops and implements a program to pro-
to EPA’s civil rights programs. The Of- vide the maximum utilization of
fice develops policies, procedures, and women-owned business enterprises in
regulations to implement the Agency’s all aspects of EPA contract work; in
civil rights responsibilities, and pro- collaboration with the Procurement
vides direction to Regional and field and Contracts Management Division,
activities in the Office’s area of respon- develops programs to stimulate and
sibilities. The Office implements and improve involvement of small and mi-
monitors the Agency’s equal employ- nority business enterprises; and rec-
ment opportunity program; provides ommends the assignment of technical
advice and guidance to EPA program advisers to assist designated Procure-
officials and Regional Administrators ment Center Representatives of the
on EEO matters; serves as advocate for Small Business Administration in their
furthering career opportunities for mi- duties. The Office represents EPA at
norities and women; and processes hearings, interagency meetings, con-
complaints of discrimination for Agen- ferences and other appropriate forums
cy disposition. The office assures: on matters related to the advancement
(1) Maximum participation of minor- of these cited business enterprises in
ity business enterprises under EPA EPA’s Federal Contracting Program.
contracts and grants; (e)(1) Environmental Appeals Board.
(2) Equal employment opportunity The Environmental Appeals Board is a
under Agency service contracts, con- permanent body with continuing func-
struction contracts, and grants; tions composed of no more than four
(3) Compliance with the Davis-Bacon Board Members designated by the Ad-
Act and related acts; ministrator. The Board shall decide
(4) Compliance with the provisions of each matter before it in accordance
laws affecting Agency programs requir- with applicable statutes and regula-
ing nondiscrimination on account of tions. The Board typically shall sit on
age and physical handicap and; matters before it in three-Member pan-
(5) Services or benefits are dispensed els, and shall decide each matter by a
under any program or activity receiv- majority vote. In the event that ab-
ing Agency financial assistance on a sence or recusal prevents a three-Mem-
nondiscrimination basis. ber panel, the Board shall sit on a mat-
(c) Science Advisory Board. The ter as a panel of two Members, and two
Science Advisory Board, under the di- Members shall constitute a quorum
rection of a Director, provides expert under such circumstances. The Board
and independent advice to the Adminis- in its sole discretion shall establish
trator on the scientific and technical panels to consider matters before it.
issues facing the Agency. The Office The Board’s decisions regarding panel
advises on broad, scientific, technical size and composition shall not be re-
and policy matters; assesses the results viewable. In the case of a tie vote, the
of specific research efforts; assists in matter shall be referred to the Admin-
identifying emerging environmental istrator to break the tie.
problems; and advises the Adminis- (2) Functions. The Environmental Ap-
trator on the cohesiveness and cur- peals Board shall exercise any author-
rency of the Agency’s scientific pro- ity expressly delegated to it in this
grams. title. With respect to any matter for
(d) Office of Small and Disadvantaged which authority has not been expressly
Business Utilization. The Office of Small delegated to the Environmental Ap-
and Disadvantaged Business Utiliza- peals Board, the Environmental Ap-
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tion, under the supervision of a Direc- peals Board shall, at the Administra-
tor, is responsible for developing policy tor’s request, provide advice and con-
and procedures implementing the sultation, make findings of fact and
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§ 1.27 40 CFR Ch. I (7–1–21 Edition)
conclusions of law, prepare a rec- ministrator. The Office advises the Ad-
ommended decision, or serve as the ministrator and principal Agency offi-
final decisionmaker, as the Adminis- cials on the progress and effect of for-
trator deems appropriate. In per- eign and international programs and
forming its functions, the Environ- issues. The Office serves as the Admin-
mental Appeals Board may consult istrator’s representative in contacts
with any EPA employee concerning with the Department of State and
any matter governed by the rules set other Federal agencies concerned with
forth in this title, provided such con- international affairs. It negotiates ar-
sultation does not violate applicable ex rangements or understandings relating
parte rules in this title. to international cooperation with for-
(3) Qualifications. Each member of the eign organizations. The Office coordi-
Environmental Appeals Board shall be nates Agency international contacts
a graduate of an accredited law school and commitments; serves as the focal
and a member in good standing of a point for responding to requests for in-
recognized bar association of any State formation relating to EPA inter-
or the District of Columbia. Board national activities; and provides an ini-
Members shall not be employed by the tial point of contact for all foreign
Office of Enforcement, the Office of the visitors. The Office maintains liaison
General Counsel, a Regional Office, or with all relevant international organi-
any other office directly associated zations and provides representation
with matters that could come before where appropriate. It establishes Agen-
the Environmental Appeals Board. A cy policy, and approves annual plans
Board Member shall recuse himself or and modifications for travel abroad and
herself from deciding a particular case attendance at international con-
if that Board Member in previous em- ferences and events. It provides admin-
ployment performed prosecutorial or istrative support for the general activi-
investigative functions with respect to ties of the Executive Secretary of the
the case, participated in the prepara- U.S. side of the US-USSR/PRC agree-
tion or presentation of evidence in the ments on environmental protection
case, or was otherwise personally in- and of the U.S. Coordinator for the
volved in the case. NATO Committee on the Challenges of
[50 FR 26721, June 28, 1985, as amended at 57 Modern Society. The Office supervises
FR 5323, Feb. 13, 1992; 63 FR 67780, Dec. 9, these programs with respect to activi-
1998; 85 FR 51655, Aug. 21, 2020; 86 FR 31176, ties which are completely within the
June 11, 2021] purview of EPA.
(b) Office of Regional Operations. The
§ 1.27 Offices of the Associate Adminis- Office of Regional Operations, under
trators. the supervision of an Associate Admin-
(a) Office of International Activities. istrator, reports directly to the Admin-
The Office of International Activities, istrator and Deputy Administrator.
under the supervision of an Associate The Office serves as the primary com-
Administrator, provides direction to munications link between the Adminis-
and supervision of the activities, pro- trator/Deputy Administrator and the
grams, and staff assigned to the Office Regional Administrators. It provides a
of International Activities. All of the Headquarters focus for ensuring the in-
functions and responsibilities of the volvement of Regions, or consideration
Associate Administrator are Agency- of Regional views and needs, in all as-
wide, and apply to all international ac- pects of the Agency’s work. The Office
tivities of the Agency. The Office de- is responsible for assuring Regional
velops policies and procedures for the participation in Agency decision-mak-
direction of the Agency’s international ing processes, assessing the impact of
programs and activities, subject to Headquarters actions on Regional oper-
U.S. foreign policy, and assures that ations, and acting as ombudsman to re-
adequate program, scientific, and legal solve Regional problems on behalf of
inputs are provided. It conducts con- the Administrator. The Associate Ad-
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Environmental Protection Agency § 1.33
legal adviser to the Administrator. The ices to all of the programs and activi-
office provides legal services to all or- ties at RTP and certain financial and
ganizational elements of the Agency automated data processing services
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§ 1.33 40 CFR Ch. I (7–1–21 Edition)
10
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Environmental Protection Agency § 1.37
(f) The Office of Human Resources and the Management and Organization
Management. The Office of Human Re- Division), the Office of the Comp-
sources Management (OHRM), under troller, the Office of Information Re-
the supervision of a Director, designs sources Management, and the Office of
strategies, plans, and policies aimedat Policy, Planning and Evaluation.
developing and training all employees,
revitalizing EPA organizations, and § 1.35 Office of Enforcement and Com-
matching the right people with the pliance Monitoring.
right jobs. The Office is responsible for The Office of Enforcement and Com-
developing and assuring implementa- pliance Monitoring, under the super-
tion of policies and practices necessary vision of the Assistant Administrator
for EPA to meet its present and future for Enforcement and Compliance Moni-
workforce needs. This includes consid- toring, serves as the principal adviser
eration of the interrelationships be- to the Administrator in matters con-
tween the environmental protection cerning enforcement and compliance;
workforce needs of EPA and State gov- and provides the principal direction
ernments. For Senior Executive Serv- and review of civil enforcement activi-
ice (SES) personnel, SES candidates, ties for air, water, waste, pesticides,
Presidential Executive Interchange toxics, and radiation. The Assistant
Participants, and Management Interns, Administrator reviews the efforts of
OHRM establishes policies; assesses each Assistant and Regional Adminis-
and projects Agency executive needs trator to assure that EPA develops and
and workforce capabilities; creates, es- conducts a strong and consistent en-
tablishes, and implements training and forcement and compliance monitoring
development strategies and programs; program. The Office manages the na-
provides the full range of personnel tional criminal enforcement program;
functions; supports the Performance ensures coordination of media office
Review Board (PRB) and the Executive administrative compliance programs,
Resources Board (ERB); and reassigns and civil and criminal enforcement ac-
SES personnel with the concurrence of tivities; and provides technical exper-
the ERB. For the areas of workforce tise for enforcement activities.
management and employee and organi-
zational development, OHRM develops § 1.37 Office of External Affairs.
strategies, plans, and policies; coordi- (a) Office of Federal Activities. The Of-
nates Agencywide implementation of fice of Federal Activities is headed by
those strategies, plans, and policies; a Director who reports to the Assistant
and provides technical assistance to Administrator for External Affairs and
operating personnel offices and States. supervises all the functions of the Of-
OHRM, in cooperation with the Office fice. The Director acts as national pro-
of the Comptroller, evaluates problems gram manager for five major programs
with previous workyear use, monitors that include:
current workyear utilization, and (1) The review of other agency envi-
projects future workyear needs in co- ronmental impact statements and
ordination with the Agency’s budget other major actions under the author-
process. The Office is the lead office for ity of Section 309 of the Clean Air Act;
coordination of human resources man- (2) EPA compliance with the Na-
agement with the Agency’s Strategic tional Environmental Policy Act
Planning and Management System. (NEPA) and related laws, directives,
The Office develops methodologies and and Executive policies concerning spe-
procedures for evaluations of Agency cial environmental areas and cultural
human resources management activi- resources;
ties; conducts evaluations of human re- (3) Compliance with Executive policy
sources management activities Agen- on American Indian affairs and the de-
cywide; and carries out human re- velopment of programs for environ-
sources management projects of special mental protection on Indian lands; and
interest to Agency management. The (4) The development and oversight of
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Office coordinates its efforts with the national programs and internal poli-
Office of Administration (specifically cies, strategies, and procedures for im-
the Personnel Management Division plementing Executive Order 12088 and
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§ 1.37 40 CFR Ch. I (7–1–21 Edition)
other administrative or statutory pro- issues and assures that there are oppor-
visions concerning compliance with en- tunities for public involvement in the
vironmental requirements by Federal resolution of problems. The Office su-
facilities. The Director chairs the pervises the production of audio-visual
Standing Committee on Implementa- materials, including graphics, radio
tion of Executive Order 12088. The Of- and video materials, for the general
fice serves as the Environmental Pro- public and for internal audiences, in
tection Agency’s (EPA) principal point support of EPA policies and programs.
of contact and liaison with other Fed- The Office provides program direction
eral agencies and provides consultation and professional review of the perform-
and technical assistance to those agen- ance of public affairs functions in the
cies relating to EPA’s areas of exper- Regional Offices of EPA, as well as at
tise and responsibility. The Office ad- laboratories and other field offices. The
ministers the filing and information Office of Public Affairs is responsible
system for all Federal Environmental for reviewing interagency agreements
Impact Statements under agreement and Headquarters purchase request req-
with the Council on Environmental uisitions expected to result in con-
Quality (CEQ) and provides liaison tracts in the area of public information
with CEQ on this function and related and community relations. It develops
matters of NEPA program administra- proposals and reviews Headquarters
tion. The Office provides a central grant applications under consideration
point of information for EPA and the when public affairs goals are involved.
public on environmental impact assess- (c) Office of Legislative Analysis. The
ment techniques and methodologies. Office of Legislative Analysis, under
(b) Office of Public Affairs. The Office the supervision of a Director who
of Public Affairs is under the super- serves in the capacity of Legislative
vision of a Director who serves as chief Counsel, is responsible for legislative
spokesperson for the Agency and as a drafting and liaison activities relating
principal adviser, along with the As- to the Agency’s programs. It exercises
sistant Administrator for External Af- responsibility for legislative drafting;
fairs, to the Adminstrator, Deputy Ad- reports to the Office of Management
ministrator, and Senior Management and Budget and congressional commit-
Officials, on public affairs aspects of tees on proposed legislation and pend-
the Agency’s activities and programs. ing and enrolled bills, as required by
The Office of Public Affairs provides to OMB Circular No. A–19 and Bulletin
the media adequate and timely infor- No. 72–6; provides testimony on legisla-
mation as well as responses to queries tion and other matters before congres-
from the media on all EPA program ac- sional committees; and reviews tran-
tivities. It assures that the policy of scripts of legislative hearings. It main-
openness in all information matters, as tains liaison with the Office of Con-
enunciated by the Administrator, is gressional Liaison on all Agency ac-
honored in all respects. Develops publi- tivities of interest to the Congress. The
cations to inform the general public of Office works closely with the staffs of
major EPA programs and activities; it various Assistant Administrators, As-
also develops informational materials sociate Administrators, Regional Ad-
for internal EPA use in Headquarters ministrators, and Staff Office Directors
and at the Regions, Labs and Field Of- in accordance with established Agency
fices. It maintains clearance systems procedures, in the development of the
and procedures for periodicals and non- Agency’s legislative program. The Of-
technical information developed by fice assists the Assistant Adminis-
EPA for public distribution, and re- trator for External Affairs and the
views all publications for public affairs Agency’s senior policy officials in guid-
interests. The Office of Public Affairs ing legislative initiatives through the
provides policy direction for, and co- legislative process. It advises the As-
ordination and oversight of EPA’s com- sistant Administrator for Administra-
munity relations program. It provides tion and Resources Management in
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Environmental Protection Agency § 1.39
local governments, and is the principal wide basis: economic analysis of Agen-
source of advice and information for cy programs, policies, standards, and
the Administrator and the Assistant regulations, including the estimation
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§ 1.41 40 CFR Ch. I (7–1–21 Edition)
of abatement costs; research into de- objectives, and ensures that programs
veloping new benefits models; benefit- are evaluated against their accom-
cost analyses; impact assessments; in- plishments of goals.
termediate and long-range strategic
studies; consultation and analytical as- § 1.41 Office of Air and Radiation.
sistance in the areas described above to The Office of Air and Radiation is
senior policy and program officials and under supervision of the Assistant Ad-
other offices in the Agency; develop- ministrator for Air and Radiation who
ment and coordination proposals for serves as principal adviser to the Ad-
major new Agency initiatives; liaison ministrator in matters pertaining to
with other agencies; universities, and air and radiation programs, and is re-
interest groups on major policy issues sponsible for the management of these
and development of a coordinated EPA programs: Program policy devel-
Agency position; and development of opment and evaluation; environmental
integrated pollution control strategies and pollution sources’ standards devel-
for selected industrial and geo- opment; enforcement of standards; pro-
graphical areas. gram policy guidance and overview,
(b) Office of Standards and Regula- technical support or conduct of compli-
tions. The Office of Standards and Reg- ance activities and evaluation of Re-
ulations is under the supervision of a gional air and radiation program ac-
Director who is responsible for: involv- tivities; development of programs for
ing the Office of Policy, Planning and technical assistance and technology
Evaluation (OPPE) in regulatory re- transfer; and selected demonstration
view; conducting technical and statis- programs.
tical analyses of proposed standards, (a) Office of Mobile Sources. The Office
regulations and guidelines; serving as of Mobile Sources, under the super-
the Agency focal point for identifying, vision of a Director, is responsible for
developing and implementing alter- the mobile source air pollution control
natives to conventional ‘‘command and functions of the Office of Air and Radi-
control’’ regulations; conducting anal- ation. The Office is responsible for:
yses of Agency activities related to Characterizing emissions from mobile
chemical substances and providing sources and related fuels; developing
mechanisms for establishing regu- programs for their control, including
latory priorities and resolving sci- assessment of the status of control
entific issues affecting rulemaking; en- technology and in-use vehicle emis-
suring Agency compliance with the Pa- sions; for carrying out, in coordination
perwork Reduction Act; evaluating and with the Office of Enforcement and
reviewing all Agency information col- Compliance Monitoring as appropriate,
lection requests and activities, and, in a regulatory compliance program to
cooperation with the Office of Adminis- ensure adherence of mobile sources to
tration and Resources Management standards; and for fostering the devel-
and the Office of Management Systems opment of State motor vehicles emis-
and Evaluation, evaluating Agency sion inspection and maintenance pro-
management and uses of data for deci- grams.
sion-making. (b) Office of Air Quality Planning and
(c) Office of Management Systems and Standards. The Office of Air Quality
Evaluation. The Office of Management Planning and Standards, under the su-
Systems and Evaluation is under the pervision of a Director, is responsible
supervision of a Director who directs for the air quality planning and stand-
and coordinates the development, im- ards functions of the Office of Air and
plementation and administration of Radiation. The Director for Air Quality
Agencywide systems for planning, Planning and Standards is responsible
tracking, and evaluating the accom- for emission standards for new sta-
plishments of Agency programs. In tionary sources, and emission stand-
consultation with other offices, the Of- ards for hazardous pollutants; for de-
fice develops a long-range policy veloping national programs, technical
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framework for Agency goals, and objec- policies, regulations, guidelines, and
tives, identifies strategies for achiev- criteria for air pollution control; for
ing goals, establishes timetables for assessing the national air pollution
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Environmental Protection Agency § 1.43
control program and the success in regulation of pesticides and toxic sub-
achieving air quality goals; for pro- stances and is responsible for managing
viding assistance to the States, indus- the Agency’s pesticides and toxic sub-
try and other organizations through stances programs under the Federal In-
personnel training activities and tech- secticide, Fungicide, and Rodenticide
nical information; for providing tech- Act (FIFRA); the Federal Food, Drug,
nical direction and support to Regional and Cosmetic Act (FFDCA); the Toxic
Offices and other organizations; for Substances Control Act (TSCA); the
evaluating Regional programs with re- Pollution Prevention Act (PPA); and
spect to State implementation plans portions of several other statutes. The
and strategies, technical assistance, Assistant Administrator has responsi-
and resource requirements and alloca- bility for establishing Agency strate-
tions for air related programs; for de- gies for implementation and integra-
veloping and maintaining a national tion of the pesticides and the toxic sub-
air programs data system, including stances programs under applicable Fed-
air quality, emissions and other tech- eral statutes; developing and operating
nical data; and for providing effective Agency programs and policies for as-
technology transfer through the trans- sessment and control of pesticides and
lation of technological developments toxic substances; developing rec-
into improved control program proce- ommendations for Agency priorities for
dures. research, monitoring, regulatory, and
(c) Office of Radiation Programs. The information-gathering activities relat-
Office of Radiation Programs, under ing to pesticides and toxic substances;
the supervision of a Director, is respon- developing scientific, technical, eco-
sible to the Assistant Administrator nomic, and social databases for the
for Air and Radiation for the radiation conduct of hazard assessments and
activities of the Agency, including de- evaluations in support of toxic sub-
velopment of radiation protection cri- stances and pesticides activities; pro-
teria, standards, and policies; measure- viding toxic substances and pesticides
ment and control of radiation expo- program guidance to EPA Regional Of-
sure; and research requirements for ra- fices and monitoring, evaluating, and
diation programs. The Office provides assessing pesticides and toxic sub-
technical assistance to States through stances program operations in EPA
EPA Regional Offices and other agen- Headquarters and Regional Offices.
cies having radiation protection pro- (a) Office of Pesticide Programs. The
grams; establishes and directs a na- Office of Pesticide Programs (OPP),
tional surveillance and investigation under the management of a Director
program for measuring radiation levels and Deputy Director are responsible to
in the environment; evaluates and as- the Assistant Administrator for leader-
sesses the impact of radiation on the ship of the overall pesticide activities
general public and the environment; of the Agency under the authority of
and maintains liaison with other public FIFRA, FFDCA, and portions of sev-
and private organizations involved in eral other statutes. Responsibilities in-
environmental radiation protection ac- clude the development of strategic
tivities. The Office coordinates with plans for the control of the national
and assists the Office of Enforcement environmental pesticide situation.
and Compliance Monitoring in enforce- Such plans are implemented by OPP,
ment activities where EPA has juris- other EPA components, other Federal
diction. The Office provides editorial agencies, or by State, local, and pri-
policy and guidance, and assists in pre- vate sectors. OPP is also responsible
paring publications. for establishment of tolerance levels
for pesticide residues which occur in or
§ 1.43 Office of Chemical Safety and on food; registration and reregistration
Pollution Prevention. of pesticides; special review of pes-
The Assistant Administrator, Office ticides suspected of posing unreason-
of Chemical Safety and Pollution Pre- able risks to human health or the envi-
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§ 1.45 40 CFR Ch. I (7–1–21 Edition)
pesticide registration guidelines; devel- tion and Policy (OSCP) provides co-
opment of standards for the registra- ordination, leadership, peer review, and
tion and reregistration of pesticide synthesis of science and science policy
products; provision of program policy within OCSPP. OSCP provides guid-
direction to technical and manpower ance to assure sound scientific deci-
training activities in the pesticides sions are made regarding safe pesticide
area; development of research needs and chemical management through the
and monitoring requirements for the leadership of the Scientific Advisory
pesticide program and related areas; Panel (SAP). OSCP also coordinates
review of impact statements dealing emerging exposure and hazard assess-
with pesticides; providing operational ment topics such as endocrine
guidance to EPA Regional Offices; and disruptors and biotechnology.
carrying out of assigned international [77 FR 46290, Aug. 3, 2012]
activities.
(b) Office of Pollution Prevention and § 1.45 Office of Research and Develop-
Toxics. The Office of Pollution Preven- ment.
tion and Toxics (OPPT), under the The Office of Research and Develop-
management of a Director and Deputy ment is under the supervision of the
Director is responsible to the Assistant Assistant Administrator for Research
Administrator for those activities of and Development who serves as the
the Agency mandated by TSCA, PPA, principal science adviser to the Admin-
and portions of several other statutes. istrator, and is responsible for the de-
The Director is responsible for devel- velopment, direction, and conduct of a
oping and operating Agency programs national research, development and
and policies for new and existing demonstration program in: Pollution
chemicals. In each of these areas, the sources, fate, and health and welfare
Director is responsible for information effects; pollution prevention and con-
collection and coordination; data de- trol, and waste management and utili-
velopment; health, environmental, and zation technology; environmental
economic assessment; and negotiated sciences; and monitoring systems. The
or regulatory control actions. The Di- Office participates in the development
rector provides operational guidance to of Agency policy, standards, and regu-
EPA Regional Offices, reviews and lations and provides for dissemination
evaluates toxic substances activities at of scientific and technical knowledge,
EPA Headquarters and Regional Of- including analytical methods, moni-
fices; coordinates TSCA activities with toring techniques, and modeling meth-
other EPA offices and Federal and odologies. The Office serves as coordi-
State agencies, and conducts the ex- nator for the Agency’s policies and pro-
port notification required by TSCA and grams concerning carcinogenesis and
provides information to importers. The related problems and assures appro-
Director is responsible for developing priate quality control and standardiza-
policies and procedures for the coordi- tion of analytical measurement and
nation and integration of Agency and monitoring techniques utilized by the
Federal activities concerning toxic Agency. The Office exercises review
substances. The Director is also re- and concurrence responsibilities on an
sponsible for coordinating communica- Agencywide basis in all budgeting and
tion with the industrial community, planning actions involving monitoring
environmental groups, and other inter- which require Heardquarters approval.
ested parties on matters relating to the (a) Office of Acid Deposition, Environ-
implementation of TSCA; providing mental Monitoring and Quality Assur-
technical support to international ac- ance. The Office of Acid Deposition, En-
tivities managed by the Office of Inter- vironmental Monitoring and Quality
national Activities; and managing the Assurance (OADEMQA), under the su-
joint planning of toxic research and de- pervision of an Office Director, is re-
velopment under the auspices of the sponsible for planning, managing and
Pesticides/Toxic Substances Research evaluating a comprehensive program
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Committee. for:
(c) Office of Science Coordination and (1) Monitoring the cause and effects
Policy. The Office of Science Coordina- of acid deposition;
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Environmental Protection Agency § 1.45
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§ 1.45 40 CFR Ch. I (7–1–21 Edition)
search activities associated with the (e) Office of Health and Environmental
health and environmental impacts of Assessment (OHEA). The Office of
energy production and use; and Health and Environmental Assessment,
18
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Environmental Protection Agency § 1.47
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§ 1.49 40 CFR Ch. I (7–1–21 Edition)
analyses of the recovery of useful en- permit program. The office has over-
ergy from solid waste; development and view responsibilities and provides tech-
implementation of a program to re- nical assistance to the regional activi-
spond to uncontrolled hazardous waste ties in both enforcement and permit-
sites and spills (including oil spills); ting programs.
long-term strategic planning and spe- (b) Office of Water Regulations and
cial studies; economic and long-term Standards. The Office of Water Regula-
environmental analyses; economic im- tions and Standards, under the super-
pact assessment of regulations under vision of a Director, is responsible for
RCRA, CERCLA, and other relevant the Agency’s water regulations and
statutes; analyses of alternative tech- standards functions. The Office is re-
nologies and trends; and cost-benefit sponsible for developing an overall pro-
analyses and development of OLEM en- gram strategy for the achievement of
vironmental criteria. For purposes of water pollution abatement in coopera-
42 U.S.C. 6911(a), OLEM carries out the tion with other appropriate program
functions of the Office of Solid Waste. offices. The Office assures the coordi-
For purposes of 42 U.S.C. 6911a, the nation of all national water-related ac-
functions and duties of the Assistant tivities within this water program
Administrator of the Office of Solid strategy, and monitors national
Waste are carried out by the Assistant progress toward the achievement of
Administrator for the Office of Land water quality goals and is responsible
and Emergency Management. for the development of effluent guide-
[80 FR 77577, Dec. 15, 2015] lines and water quality standards, and
other pollutant standards, regulations,
§ 1.49 Office of Water. and guidelines within the program re-
The Office of Water, under the super- sponsibilities of the Office. It exercises
vision of the Assistant Administrator overall responsibility for the develop-
for Water who serves as the principal ment of effective State and Regional
adviser to the Administrator in mat- water quality regulatory control pro-
ters pertaining to water programs, is grams. The Office is responsible for the
responsible for management of EPA’s development and maintenance of a cen-
water programs. Functions of the Of- tralized water programs data system
fice include program policy develop- including compatible water quality,
ment and evaluation; environmental discharger, and program data files uti-
and pollution source standards develop- lizing, but not displacing, files devel-
ment; program policy guidance and oped and maintained by other program
overview; technical support; and eval- offices. It is responsible for developing
uation of Regional water activities; the national accomplishment plans and re-
conduct of compliance and permitting source and schedule guidelines for
activities as they relate to drinking monitoring and evaluating the per-
water and water programs; develop- formance, progress, and fiscal status of
ment of programs for technical assist- the organization in implementing pro-
ance and technology transfer; develop- gram plans. The Office represents EPA
ment of selected demonstration pro- in activities with other Federal agen-
grams; economic and long-term envi- cies concerned with water quality regu-
ronmental analysis; and marine and es- lations and standards.
tuarine protection. (c) Office of Municipal Pollution Con-
(a) Office of Water Enforcement and trol. The Office of Municipal Pollution
Permits. The Office of Water Enforce- Control, under the supervision of a Di-
ment and Permits, under the super- rector, is responsible for the Agency’s
vision of a Director, develops policies, water program operations functions.
strategies, procedures and guidance for The Office is responsible for developing
EPA and State compliance monitoring, national strategies, program and policy
evaluation, and enforcement programs recommendations, regulations and
for the Clean Water Act and the Marine guidelines for municipal water pollu-
Protection Research and Sanctuaries tion control; for providing technical di-
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Act. The Office also provides national rection and support to Regional Offices
program direction to the National Pol- and other organizations; and for evalu-
lutant Discharge Elimination System ating Regional and State programs
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Environmental Protection Agency § 1.61
(e) Office of Ground-Water Protection. other public and private groups. Re-
The Office of Ground-Water Protection, gional Administrators are responsible
under the supervision of a Director, for:
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Pt. 2 40 CFR Ch. I (7–1–21 Edition)
22
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Environmental Protection Agency § 2.101
2.404 Procedures when an employee is sub- quester Service Center. A FOIA Public
poenaed. Liaison is responsible for assisting in
2.405 Subpoenas duces tecum. reducing delays, increasing trans-
2.406 Requests for authenticated copies of
EPA documents. parency and understanding of the sta-
tus of requests, and assisting in the
AUTHORITY: 5 U.S.C. 552, 552a, 553; 28 U.S.C. resolution of disputes. The public can
509, 510, 534; 31 U.S.C. 3717.
find more information about the FOIA
SOURCE: 41 FR 36902, Sept. 1, 1976, unless Public Liaisons at EPA’s website.
otherwise noted.
§ 2.101 Where to file requests for
Subpart A—Procedures for Disclo- records.
sure of Records Under the (a) Requesters must submit all re-
Freedom of Information Act quests for records from EPA under the
FOIA in writing and by one of the fol-
SOURCE: 84 FR 30032, June 26, 2019, unless lowing methods:
otherwise noted. (1) EPA’s FOIA submission website at
https://www.foiaonline.gov;
§ 2.100 General provisions. (2) An electronic government submis-
(a) This Subpart contains the rules sion website established pursuant to 5
that the Environmental Protection U.S.C. 552(m), such as FOIA.gov;
Agency (EPA or Agency) follows in (3) U.S. Mail sent to the following ad-
processing requests for records under dress: National FOIA Office, U.S. Envi-
the Freedom of Information Act ronmental Protection Agency, 1200
(FOIA), 5 U.S.C. 552. The Agency also Pennsylvania Avenue NW (2310A),
has rules that it follows in processing Washington, DC 20460; or
FOIA requests for records submitted to (4) Overnight delivery service to Na-
it as Confidential Business Information tional FOIA Office, U.S. Environmental
(CBI). Such records are covered in Sub- Protection Agency, 1200 Pennsylvania
part B of this Part. Requests made by NW, Room 5315, Washington, DC 20460.
individuals for records about them- EPA will not treat a request submitted
selves under the Privacy Act of 1974, by any other method as a FOIA re-
which are processed under 40 CFR part quest, and the Agency will not re-route
16, will also be treated as FOIA re- the request. The requester or requester
quests under this Subpart. This ensures organization must include the full
that the requestor has access to all re- name of their point of contact and
sponsive records. Information rou- their mailing address for EPA to proc-
tinely provided to the public as part of ess the request. For all requests, re-
a regular EPA activity may be pro- questers should provide an email ad-
vided to the public without following dress and daytime telephone number
this Subpart. whenever possible. For requests sub-
(b) EPA will inform the requester of mitted through EPA’s FOIA submis-
the steps necessary to obtain records sion website or as provided by an elec-
from agencies operating statutory- tronic government submission website
based fee schedule programs, such as, established pursuant to 5 U.S.C. 552(m),
but not limited to, the Government requesters must include an email ad-
Printing Office or the National Tech- dress. For requests submitted through
nical Information Service. U.S. Mail, the requester must mark
(c) The Chief FOIA Officer designates both the request letter and envelope
the office that performs the duties of ‘‘Freedom of Information Act Re-
the National FOIA Office. The National quest.’’ The requester should not pro-
FOIA Office reports to the Chief FOIA vide social security numbers when
Officer. making a request for information
(d) The Chief FOIA Officer designates under the FOIA. Requesters submitting
the FOIA Public Liaisons. The FOIA requests electronically must do so be-
Public Liaisons report to the Chief fore 5:00 p.m. Eastern Time for the
FOIA Officer. A FOIA Public Liaison is Agency to consider the request as re-
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§ 2.102 40 CFR Ch. I (7–1–21 Edition)
make regularly available for public in- ther what additional information the
spection and copying. Each office is re- requester needs to provide or why the
sponsible for determining which of the request is otherwise insufficient. EPA
records it generates are required to be will also give the requester an oppor-
made publicly available and for pro- tunity to discuss and modify the re-
viding access by the public to them. quest to meet the requirements of this
The Agency will also maintain and Section.
make available for public inspection (d) Agreement to pay fees. If the re-
and copying a current subject matter quester makes a FOIA request, EPA
index of such records and provide a will consider the request to be an
copy or a link to the respective website agreement that the requester will pay
for Headquarters or the Regions. Each all applicable fees charged under
index will be updated regularly, at § 2.107, up to $25.00, unless the requester
least quarterly, with respect to newly- seeks a waiver of fees. The EPA office
included records. responsible for responding to the re-
(c) All records created by EPA on or quest ordinarily will confirm this
after November 1, 1996, which the FOIA agreement in writing. When making a
requires an agency to make regularly request, the requester may specify a
available for public inspection and willingness to pay a greater or lesser
copying, will be made available elec- amount.
tronically through EPA’s website, lo-
cated at http://www.epa.gov, or, upon re- § 2.103 Responsibility for responding
quest, through other electronic means. to requests.
EPA will also include on its website (a) In general. Upon receipt of a FOIA
the current subject matter index of all request under § 2.101(a) of this Subpart,
such records. the National FOIA Office will assign
the request to an appropriate office
§ 2.102 Procedures for making re- within the Agency for processing. To
quests. determine which records are within the
(a) General information. EPA will con- scope of a request, an office will ordi-
sider a request received when the Agen- narily include only those records in the
cy receives a request by one of the Agency’s possession as of the date the
methods identified in § 2.101(a). request was received by one of the
(b) EPA employees may attempt in methods described in § 2.101(a). The
good faith to comply with oral requests Agency will inform the requester if any
for inspection or disclosure of EPA other date is used.
records publicly available under (b) Authority to issue final determina-
§ 2.201(a) and (b), but such requests are tions. The Administrator, Deputy Ad-
not subject to the FOIA or this Part. ministrators, Assistant Administra-
(c) Description of records sought. A re- tors, Deputy Assistant Administrators,
quest should reasonably describe the Regional Administrators, Deputy Re-
records the requester seeks in a way gional Administrators, General Coun-
that will permit EPA employees to sel, Deputy General Counsels, Regional
identify and locate them. Whenever Counsels, Deputy Regional Counsels,
possible, a request should include spe- and Inspector General or those individ-
cific information about each record uals’ delegates, are authorized to make
sought, such as the date, title or name, determinations required by 5 U.S.C.
author, recipient, and subject matter. 552(a)(6)(A), including to issue final de-
If known, the requester should include terminations whether to release or
any file designations or descriptions withhold a record or a portion of a
for the records that the requester record on the basis of responsiveness or
wants. The more specific the requester under one or more exemptions under
is about the records or type of records the FOIA, and to issue ‘‘no records’’ re-
that the requester wants, the more sponses.
likely EPA will be able to identify and (c) Authority to grant or deny fee waiv-
locate records responsive to the re- ers or requests for expedited processing.
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quest. If EPA determines that the re- EPA’s Chief FOIA Officer or EPA’s
quest does not reasonably describe the Chief FOIA Officer’s delegates are au-
records, EPA will tell the requester ei- thorized to grant or deny requests for
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Environmental Protection Agency § 2.104
fee waivers or requests for expedited essing number assigned to the request
processing. for future reference.
(d) Consultations and referrals. When a (c) Multitrack processing. The Agency
request to EPA seeks records in its uses three or more processing tracks
possession that originated with an- by distinguishing between simple and
other Federal agency, the EPA office complex requests based on the amount
assigned to process the request shall ei- of work, time needed to process the re-
ther: quest, or both, including limits based
(1) In coordination with the National on the number of pages involved. The
FOIA Office, consult with the Federal Agency will advise the requester of the
agency where the record or portion processing track in which the Agency
thereof originated and then respond to placed the request and the limits of the
the request, or different processing tracks. The Agen-
(2) With the concurrence of the Na- cy may place the request in a slower
tional FOIA Office, refer the request to track while providing the requester
the Federal agency where the record or with the opportunity to limit the scope
portion thereof originated. The Na- of the request to qualify for faster
tional FOIA Office will notify the re- processing within the specified limits
quester whenever all or any part of the of a faster track. If the Agency places
responsibility for responding to a re- the request in a slower track, the
Agency will contact the requester.
quest has been referred to another
(d) Tolling the request. Once the re-
agency.
quest is received, the Agency shall not
(e) Law enforcement information.
toll the processing time-period except:
Whenever a requester makes a request (1) The Agency may toll the proc-
for a record containing information essing time-period one time while seek-
that relates to an investigation of a ing clarification from the requester; or
possible violation of law and the inves- (2) The Agency may toll the proc-
tigation originated with another agen- essing time-period as many times as
cy, the assigned office, with the con- necessary to resolve fee issues.
currence of the National FOIA Office, (e) Unusual circumstances. When the
will refer the request to that other Agency cannot meet statutory time
agency or consult with that other limits for processing a request because
agency prior to making any release de- of ‘‘unusual circumstances,’’ as defined
termination. in the FOIA, and the time limits are
extended on that basis, the Agency will
§ 2.104 Responses to requests and ap-
peals. notify the requester in writing, as soon
as practicable, of the unusual cir-
(a) Timing of response. The EPA office cumstances and of the date by which
assigned to process the FOIA request processing of the request should be
will initiate the search, collection, and completed. If the 20 working-day period
review process, and respond to a re- is extended, EPA will give the re-
quest within 20 working days from the quester an opportunity to limit the
date the request was received by one of scope of the request, modify the re-
the methods identified in § 2.101(a), un- quest, or agree to an alternative time-
less unusual or exceptional cir- period for processing, as described by
cumstances exist as provided in para- the FOIA. EPA will also provide con-
graph (e) of this section. If EPA fails to tact information for its FOIA Public
respond to the request within the stat- Liaison to assist in the resolution of
utory time-period, or any authorized any disputes between the requester and
extension of time, the requester may the Agency, and the Agency will notify
seek judicial review to obtain the the requester of their right to seek dis-
records without first making an admin- pute resolution services from the Office
istrative appeal. of Government Information Services
(b) On receipt of a request, the Na- within the National Archives and
tional FOIA Office ordinarily will send Records Administration.
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a written acknowledgment advising the (f) Expedited processing. (1) EPA will
requester of the date the Agency re- take requests or appeals out of order
ceived the request and of the proc- and give expedited treatment whenever
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§ 2.104 40 CFR Ch. I (7–1–21 Edition)
EPA determines that such requests or quester and notify the requester of any
appeals involve a compelling need, as applicable fee charged under § 2.107.
follows: The office will annotate records re-
(i) Circumstances in which the lack leased in part, whenever technically
of expedited treatment could reason- feasible, with the applicable FOIA ex-
ably be expected to pose an imminent emption or exemptions at that part of
threat to the life or physical safety of the record from which the exempt in-
an individual; or formation was deleted.
(ii) An urgency to inform the public (h) Adverse determinations of requests.
about an actual or alleged Federal gov- When the Agency makes an adverse de-
ernment activity, if the information is termination, the Agency will notify
requested by a person primarily en- the requester of that determination in
gaged in disseminating information to writing. Adverse determinations in-
the public. clude:
(2) Requesters must make a request (1) A decision that the requested
for expedited processing at the time of record is exempt from disclosure, in
the initial request for records or at the whole or in part;
time of appeal. (2) A decision that the information
(3) If the requester seeks expedited requested is not a record subject to the
processing, the requester must submit FOIA;
a statement, certified to be true and (3) A decision that the requested
correct to the best of the requester’s record does not exist or cannot be lo-
knowledge and belief, explaining in de- cated;
tail the basis for the request. For ex-
(4) A decision that the requested
ample, if the requester fits within the
record is not readily reproducible in
category described in paragraph
the form or format sought by the re-
(f)(1)(ii) of this section and is not a
quester;
full-time member of the news media,
the requester must establish that they (5) A determination on any disputed
are a person whose primary profes- fee matter, including a denial of a re-
sional activity or occupation is infor- quest for a fee waiver; or
mation dissemination, although it need (6) A denial of a request for expedited
not be the requester’s sole occupation. processing.
If the requester fits within the cat- (i) Content of final determination letter.
egory described in paragraph (f)(1)(ii) The appropriate official will issue the
of this section, the requester must also final determination letter in accord-
establish a particular urgency to in- ance with § 2.103(b) of this subpart and
form the public about the government will include:
activity involved in the request, be- (1) The name and title or position of
yond the public’s right to know about the person responsible for the deter-
government activity generally. mination;
(4) Within 10 calendar days from the (2) A brief statement of the reason or
date of the request for expedited proc- reasons for the denial, including an
essing, the Chief FOIA Officer, or the identification of records being withheld
Chief FOIA Officer’s delegates, will de- (either individually or, if a large num-
cide whether to grant the request and ber of similar records are being denied,
will notify the requester of the deci- described by category) and any FOIA
sion. If the Agency grants the request exemption applied by the office in de-
for expedited processing, the Agency nying the request;
will give the request priority and will (3) An estimate of the volume of
process the request as soon as prac- records or information withheld, in
ticable. If the Agency denies the re- number of pages or in some other rea-
quest for expedited processing, the sonable form of estimation. This esti-
Agency will act on any appeal of that mate does not need to be provided if
decision expeditiously. the volume is otherwise indicated
(g) Grants of requests. Once the Agen- through annotated deletions on records
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Environmental Protection Agency § 2.107
(4) A statement that an adverse de- (3) If a requester seeks judicial re-
termination may be appealed under (j) view because the Agency has not re-
of this section and description of the sponded in a timely manner, any fur-
requirements for submitting an admin- ther action on an appeal will take
istrative appeal; and place through the lawsuit.
(5) A statement that the requester (k) EPA will make the decision on
has the right to seek dispute resolution the appeal in writing, normally within
services from an EPA FOIA Public Li- 20 working days of its receipt by the
aison or the Office of Government In- National FOIA Office. A decision af-
formation Service. firming an adverse determination in
(j) Appeals of adverse determinations. If whole or in part will contain a state-
the requester is dissatisfied with any ment of the reason or reasons for the
adverse determination of their request, decision, including any FOIA exemp-
the requester may appeal that deter- tion or exemptions applied, and inform
mination by letter to the National the requester of the FOIA provisions
FOIA Office, U.S. Environmental Pro- for judicial review of the decision. If
tection Agency, 1200 Pennsylvania Ave- the Agency reverses or modifies the ad-
nue NW (2310A), Washington, DC 20460 verse determination on appeal, the
or hq.foia@epa.gov. The requester must Agency will notify the requester in a
make their appeal in writing, and the written decision. In the written deci-
Agency must receive the requester’s sion, the Agency will attach the re-
appeal no later than 90 calendar days quested information that the Agency
determined on appeal to be releasable,
from the date of the letter that denied
or the Agency will return the request
the request. The Agency will not con-
to the appropriate office so that the of-
sider appeals received after the 90-cal-
fice may reprocess the request in ac-
endar day limit. Requesters submitting
cordance with the appeal decision.
appeals electronically must do so be-
(l) If the requester wishes to seek ju-
fore 5:00 p.m. Eastern Time for the
dicial review of any adverse determina-
Agency to consider the appeal as re-
tion, the requester must first appeal
ceived on that date. The appeal letter
that adverse determination under this
may include as much or as little re-
Section, except when EPA has not re-
lated information as the requester
sponded to the request within the ap-
wishes, as long as it clearly identifies plicable time-period. In such cases, the
the determination being appealed (in- requester may seek judicial review
cluding the assigned FOIA request without making an administrative ap-
number, if known). For quickest han- peal.
dling, the requester must mark their
appeal letter and its envelope with § 2.105 [Reserved]
‘‘Freedom of Information Act Appeal.’’
Unless the Administrator directs oth- § 2.106 Preservation of records.
erwise, the General Counsel or the Gen- The Agency shall preserve all cor-
eral Counsel’s delegate will act on be- respondence pertaining to the FOIA re-
half of the Administrator on all ap- quests that it receives until disposition
peals under this Section, except that: or destruction is authorized by title 44
(1) The Counsel to the Inspector Gen- of the United States Code or the Na-
eral will act on any appeal where the tional Archives and Records Adminis-
Inspector General or the Inspector tration’s General Records Schedule 14.
General’s delegate has made the final Copies of all responsive records should
adverse determination; however, if the be maintained by the appropriate pro-
Counsel to the Inspector General has gram office. Records shall not be dis-
signed the final adverse determination, posed of while they are the subject of a
the General Counsel or the General pending request, appeal, or lawsuit
Counsel’s delegate will act on the ap- under the FOIA.
peal;
(2) An adverse determination by the § 2.107 Fees.
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§ 2.107 40 CFR Ch. I (7–1–21 Edition)
this section, except where fees are lim- er education, an institution of profes-
ited under paragraph (d) of this section sional education, or an institution of
or where a waiver or reduction of fees vocational education, that operates a
is granted under paragraph (l) of this program of scholarly research. To be in
section. Requesters will pay fees by this category, a requester must show
check or money order made payable to that the request is authorized by, and
the U.S. Environmental Protection is made under the auspices of, a quali-
Agency. fying institution and that the records
(b) Definitions. For purposes of this are not sought for a commercial use
section: but are sought to further scholarly re-
(1) Commercial use request means a search.
request from or on behalf of a person (5) Noncommercial scientific institu-
who seeks information for a use or pur- tion means an institution not operated
pose that furthers the requester’s com- on a ‘‘commercial’’ basis, as defined in
mercial, trade, or profit interests, paragraph (b)(1) of this section, and
which can include furthering those in- that is operated solely for conducting
terests through litigation. The Agency scientific research that is not intended
will determine, whenever reasonably to promote any particular product or
possible, the use to which a requester industry. To be in this category, a re-
will put the requested records. When it quester must show that a qualifying in-
appears that the requester will put the stitution authorizes the request, that
records to a commercial use, either be- the requester makes the request under
cause of the nature of the request itself the auspices of the qualifying institu-
or because the Agency has reasonable tion, and that the requester does not
cause to doubt a requester’s stated use, seek the records for a commercial use
the Agency will provide the requester a but to further scientific research.
reasonable opportunity to submit fur- (6) Representative of the news media
ther clarification. has the meaning provided at 5 U.S.C.
(2) Direct costs means those expenses 552(a)(4)(A)(ii).
that the Agency actually incurs in (7) Review means the examination of
searching for and duplicating (and, in a record located in response to a re-
the case of commercial use requests, quest to determine whether any por-
reviewing) records to respond to a tion of it is exempt from disclosure. It
FOIA request. Direct costs include, for also includes processing any record for
example, the salary of the employee disclosure (for example, doing all that
performing the work and the cost of is necessary to redact it and prepare it
operating duplication equipment. Not for disclosure). Review costs are recov-
included in direct costs are overhead erable even if a record ultimately is
expenses such as the costs of space and not disclosed. Review time includes
heating or lighting of the facility in time spent considering any formal ob-
which the records are kept. jection to disclosure made by a busi-
(3) Duplication means the making of ness submitter requesting confidential
a copy of a record, or of the informa- treatment but does not include time
tion contained in it, necessary to re- spent resolving general legal or policy
spond to a FOIA request. Copies can issues regarding the application of ex-
take the form of paper, microform, emptions.
audiovisual materials, or electronic (8) Search means the process of look-
records (for example, magnetic tape, ing for and retrieving records or infor-
disk, or compact disk), among others. mation responsive to a request. It in-
The Agency will honor a requester’s cludes page-by-page or line-by-line
specified preference of form or format identification of information within
of disclosure if the record is readily re- records and includes reasonable efforts
producible with reasonable efforts in to locate and retrieve information
the requested form or format. from records maintained in electronic
(4) Educational institution means a form or format. Offices will ensure that
preschool, a public or private elemen- searches are done in the most efficient
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Environmental Protection Agency § 2.107
an entire document would be quicker Agency will charge for time spent
and less expensive. searching even if no responsive records
(c) Fees to be charged. (1) There are are found or if the records are located
four categories of requests. The Agency but are determined to be exempt from
charges fees for each of these cat- disclosure.
egories as follows: (B) For searches and retrievals of re-
(i) Commercial use requests. The Agen- quested records, either manually or
cy will charge a requester seeking ac- electronically, conducted by clerical
cess to records for a commercial use for personnel, the fee will be $4.00 for each
the time spent searching for the quarter hour of time. For searches and
records, reviewing the records for pos- retrievals of requested records, either
sible disclosure, and for the cost of manually or electronically, requiring
each page of duplication. The Agency the use of professional personnel, the
may charge for searching for and/or re- fee will be $7.00 for each quarter hour
viewing the records even if no respon- of time. For searches and retrievals of
sive records are found or if the records requested records, either manually or
are located but are determined to be electronically, requiring the use of
exempt from disclosure. managerial personnel, the fee will be
(ii) Educational or non-commercial sci- $10.25 for each quarter hour of time.
entific requests. The Agency will charge (C) When contractors conduct
requesters from educational or non- searches and retrievals, the Agency
commercial scientific institution, will charge requesters for the actual
whose purpose is scholarly or scientific charges up to but not exceeding the
research, only for the cost of record du- rate that the Agency would have
plication, except that the Agency will charged the requester had EPA em-
furnish the first 100 pages of duplica- ployees conducted the search. The
tion at no charge. Agency will charge the costs of actual
(iii) News media requests. The Agency computer resource usage in connection
will charge requesters who are rep- with such searches, to the extent they
resentatives of the news media, and can be determined.
whose purpose in seeking records is (ii) Duplication. The Agency will
noncommercial, for the cost of duplica- charge duplication fees to all request-
tion, except that the first 100 pages of ers, subject to the limitations of para-
duplication will be furnished at no graph (d) of this section. For either a
charge. photocopy or a computer-generated
(iv) All other requests. The Agency printout of a record (no more than one
will charge requesters not covered by copy of which need be supplied), the fee
one of the three categories above for will be fifteen (15) cents per page. For
the full cost of search and duplication, electronic forms of duplication, other
except that the Agency will furnish than a computer-generated printout,
without charge the first two hours of offices will charge the direct costs of
search time and the first 100 pages of that duplication. Such direct costs will
duplication. The Agency will charge for include the costs of the requested elec-
searching for the records even if no re- tronic medium on which the copy is to
sponsive records are found or if the be made and the actual operator time
records are located but are determined and computer resource usage required
to be exempt from disclosure. to produce the copy, to the extent they
(2) In responding to FOIA requests, can be determined.
the Agency will charge the following (iii) Review. The Agency will charge
fees unless a waiver or reduction of fees review fees to requesters who make a
has been granted under paragraph (l) of commercial use request. The Agency
this section: will charge review fees only for the ini-
(i) Search. (A) The Agency will charge tial record review (that is, the review
search fees for all requests except for done when an office is deciding whether
those made by educational institutions an exemption applies to a particular
or noncommercial scientific institu- record or portion of a record at the ini-
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tions, or representatives of the news tial request level). The Agency will not
media subject to the limitations of charge for review at the administrative
paragraph (d) of this section. The appeal level for an exemption already
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§ 2.107 40 CFR Ch. I (7–1–21 Edition)
applied. However, the Agency may apply and more than 5,000 pages are
again review records or portions of necessary to respond to the request,
records withheld under an exemption EPA may charge search fees, or, in the
that the Agency subsequently deter- case of requesters described in para-
mines not to apply to determine graph paragraphs (b)(4) through (6) of
whether any other exemption not pre- this section, may charge duplication
viously considered applies; the Agency fees, if the following steps are taken:
will charge costs of that review when a EPA must have provided timely writ-
change of circumstances makes it nec- ten notice of unusual circumstances to
essary. The Agency will charge review the requester in accordance with the
fees at the same rates as those charged FOIA and the EPA must have discussed
for a search under paragraph (c)(1)(i) of with the requester by written mail,
this section. email, or telephone (or made not less
(d) Limitations on charging fees. (1) than three good-faith attempts to do
The Agency will charge no search or so) how the requester could effectively
review fees for requests by educational limit the scope of the request in ac-
institutions or noncommercial sci- cordance with 5 U.S.C. 552(a)(6)(B)(ii),
entific institutions, or representatives which includes notification to the re-
of the news media. quester of the availability of the FOIA
(2) The Agency will charge no search Public Liaison and the right to seek
fee or review fee for a quarter-hour pe- dispute resolution services from the Of-
riod unless more than half of that pe- fice of Government Information Serv-
riod is required for search or review. ices. If this exception is satisfied, EPA
(3) Except for requesters seeking may charge all applicable fees incurred
records for a commercial use, offices in the processing of the request; or
will provide without charge: (iii) If a court determines that excep-
(i) The first 100 pages of duplication, tional circumstances exist, as defined
and by the FOIA, a failure to comply with
(ii) The first two hours of search. the time limits shall be excused for the
(4) The Agency will charge no fee length of time provided by the court
when a total fee calculated under para- order.
graph (c) of this section is $14.00 or less (e) Notice of anticipated fees in excess
for any request. of $25.00. When the Agency determines
(5) The provisions of paragraphs (d)(3) or estimates that the fees the Agency
and (4) of this section work together. will charge under this Section will
This means that for requesters other amount to more than $25.00, the Agen-
than those seeking records for a com- cy will notify the requester of the ac-
mercial use, the Agency will charge no tual or estimated amount of the fees,
fee unless the cost of search in excess unless the requester has indicated a
of two hours plus the cost of duplica- willingness to pay fees as high as those
tion in excess of 100 pages totals more anticipated. The amount of $25.00 is cu-
than $14.00. mulative for multi-office requests. If
(6) If EPA fails to comply with the the Agency can only readily estimate a
FOIA’s time limits for responding to a portion of the fee, the Agency will ad-
request, EPA will not charge search vise the requester that the estimated
fees, or, in the instance of requesters fee may be only a portion of the total
described in paragraphs (b)(4) through fee. When the Agency notifies a re-
(6) of this section, duplication fees, ex- quester that actual or estimated fees
cept as follows: will amount to more than $25.00, the
(i) If EPA determined that unusual Agency will do no further work on the
circumstances as defined by the FOIA request until the requester agrees to
apply and the Agency provided timely pay the anticipated total fee. The
written notice to the requester in ac- Agency will exclude time from the
cordance with the FOIA, a failure to twenty (20) working day time limit.
comply with the time limit shall be ex- EPA will memorialize any such agree-
cused for an additional 10 working ment in writing. A notice under this
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Environmental Protection Agency § 2.107
request to meet the requester’s needs (j) Advance payments. (1) For requests
at a lower cost. other than those described in para-
(f) Charges for other services. Apart graphs (j)(2) and (3) of this section, the
from the other provisions of this sec- Agency will not require the requester
tion, when the Agency chooses as a to make an advance payment (that is,
matter of administrative discretion to a payment made before EPA begins or
provide a special service—such as certi- continues work on a request). Payment
fying that records are true copies or owed for work already completed (that
sending records by other than ordinary is, a prepayment before the Agency
mail—the Agency will ordinarily sends copies to a requester) is not an
charge the direct costs of providing the advance payment.
service. (2) When the Agency determines or
(g) Charging interest. EPA may charge estimates that a total fee to be charged
interest on any unpaid bill starting on under this section will be more than
the 31st day following the date of bill- $250.00, it may require the requester to
ing the requester. The Agency will as- make an advance payment of an
sess interest charges at the rate pro- amount up to the amount of the entire
vided in 31 U.S.C. 3717 and will accrue anticipated fee before beginning to
from the date of the billing until the process the request, except when it re-
Agency receives payment. EPA will ceives a satisfactory assurance of full
follow the provisions of the Debt Col- payment from a requester that has a
lection Act of 1982 (Pub. L. 97–365), as history of prompt payment.
amended, and its administrative proce- (3) When a requester has previously
dures, including the use of consumer failed to pay a properly charged FOIA
reporting agencies, collection agencies, fee to the Agency within 30 calendar
and offset. The Agency will assess no days of the date of billing, the Agency
penalty against FOIA requesters for ex- may require the requester to pay the
ercising their statutory right to ask full amount due, plus any applicable
the Agency to waive or reduce a fee or interest, and to make an advance pay-
to dispute a billing. If a fee is in dis- ment of the full amount of any antici-
pute, the Agency will suspend penalties pated fee, before the Agency begins to
upon notification. process a new request or continues to
(h) Delinquent requesters. If requesters process a pending request from that re-
fail to pay all fees within 60 calendar quester.
days of the fees assessment, the Agen- (4) When the Agency requires ad-
cy will place the requester on a delin- vance payment or payment due under
quency list. The Agency will not proc- paragraph (j)(3) of this section, the
ess subsequent FOIA requests until the Agency will not consider the request,
requester makes payment of the over- and EPA will do no further work on the
due fees. request until the requester makes the
(i) Aggregating requests. When the required payment.
Agency reasonably believes that a re- (k) Other statutes specifically providing
quester or a group of requesters acting for fees. The fee schedule of this section
together is attempting to divide a re- does not apply to fees charged under
quest into a series of requests for the any other statute that specifically re-
purpose of avoiding fees, the Agency quires an agency to set and collect fees
may aggregate those requests and for particular types of records. When
charge accordingly. The Agency may records responsive to requests are
presume that multiple requests of this maintained for distribution by agencies
type made within a 30-day period have operating such statutorily based fee
been made to avoid fees. When requests schedule programs, EPA will inform re-
are separated by a longer period, the questers of the steps for obtaining
Agency will aggregate them only if records from those sources so that they
there exists a solid basis for deter- may do so most economically.
mining that aggregation is warranted (l) Waiver or reduction of fees. (1)
under all the circumstances involved. Records responsive to a request will be
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Environmental Protection Agency § 2.201
waiver of fees, the Agency will grant a (d) Affected business means, with ref-
waiver for only those records. erence to an item of business informa-
(5) Requests for the waiver or reduc- tion, a business which has asserted
tion of fees must address the factors (and not waived or withdrawn) a busi-
listed in paragraphs (k)(l) through (3) ness confidentiality claim covering the
of this section, as far as they apply to information, or a business which could
each request. Offices will exercise their be expected to make such a claim if it
discretion to consider the cost-effec- were aware that disclosure of the infor-
tiveness of their investment of admin- mation to the public was proposed.
istrative resources in deciding whether (e) Reasons of business confidentiality
to grant waivers or reductions of fees include the concept of trade secrecy
and will consult the appropriate EPA
and other related legal concepts which
offices as needed. Requesters must sub-
give (or may give) a business the right
mit requests for the waiver or reduc-
tion of fees along with the request. to preserve the confidentiality of busi-
(6) When the EPA denies a fee waiver ness information and to limit its use or
request, EPA will do no further work disclosure by others in order that the
on the request until it receives an as- business may obtain or retain business
surance of payment from the requester, advantages it derives from its rights in
or until the requester appeals the fee the information. The definition is
waiver adverse determination and the meant to encompass any concept which
EPA completes its final appeal deter- authorizes a Federal agency to with-
mination pursuant to § 2.104(j). hold business information under 5
U.S.C. 552(b)(4), as well as any concept
§ 2.108 Other rights and services. which requires EPA to withhold infor-
Nothing in this Subpart shall be con- mation from the public for the benefit
strued to entitle any person, as a right, of a business under 18 U.S.C. 1905 or
to any service or to the disclosure of any of the various statutes cited in
any record to which such person is not §§ 2.301 through 2.309.
entitled under the FOIA. (f) [Reserved]
(g) Information which is available to
Subpart B—Confidentiality of the public is information in EPA’s pos-
Business Information session which EPA will furnish to any
member of the public upon request and
§ 2.201 Definitions. which EPA may make public, release
For the purposes of this subpart: or otherwise make available to any
(a) Person means an individual, part- person whether or not its disclosure
nership, corporation, association, or has been requested.
other public or private organization or (h) Business confidentiality claim (or,
legal entity, including Federal, State simply, claim) means a claim or allega-
or local governmental bodies and agen- tion that business information is enti-
cies and their employees. tled to confidential treatment for rea-
(b) Business means any person en- sons of business confidentiality, or a
gaged in a business, trade, employ- request for a determination that such
ment, calling or profession, whether or information is entitled to such treat-
not all or any part of the net earnings ment.
derived from such engagement by such (i) Voluntarily submitted information
person inure (or may lawfully inure) to means business information in EPA’s
the benefit of any private shareholder possession—
or individual.
(1) The submission of which EPA had
(c) Business information (sometimes no statutory or contractual authority
referred to simply as information)
to require; and
means any information which pertains
to the interests of any business, which (2) The submission of which was not
was developed or acquired by that busi- prescribed by statute or regulation as a
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ness, and (except where the context condition of obtaining some benefit (or
otherwise requires) which is possessed avoiding some disadvantage) under a
by EPA in recorded form.
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§ 2.202 40 CFR Ch. I (7–1–21 Edition)
U.S.C. 552) under which EPA operates may be entitled to confidentiality (e.g.,
contain special provisions concerning by withholding such portions of a
the entitlement to confidential treat- record as would identify a business, or
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Environmental Protection Agency § 2.204
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§ 2.204 40 CFR Ch. I (7–1–21 Edition)
36
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Environmental Protection Agency § 2.204
nished to that business. A copy of each (4) The written notice required by
notice furnished to a business under paragraph (e)(1) of this section shall in-
this paragraph (d)(2) and § 2.205(f) shall vite the business’s comments on the
37
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§ 2.205 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 2.205
(2) When a request for release of the shall promptly inquire whether the
information under 5 U.S.C. 552 is pend- business has complied with paragraph
ing, the EPA legal office’s determina- (b)(1) of this section. If the business has
tion shall serve as the final determina- complied with paragraph (b)(1) but the
tion on appeal from an initial denial of comments have been lost in trans-
the request. mission, duplicate comments shall be
(i) If the initial denial was issued requested.
under § 2.204(b)(1), a final determination (c) Confidential treatment of comments
by the EPA legal office is necessary from business. If information submitted
only if the requestor has actually filed to EPA by a business as part of its
an appeal. comments under this section pertains
(ii) If the initial denial was issued to the business’s claim, is not other-
under § 2.204(d)(1), however, the EPA wise possessed by EPA, and is marked
legal office shall issue a final deter- when received in accordance with
mination in every case, unless the re- § 2.203(b), it will be regarded by EPA as
quest has been withdrawn. (Initial de- entitled to confidential treatment and
nials under § 2.204(d)(1) are of a proce- will not be disclosed by EPA without
dural nature, to allow further inquiry the business’s consent, unless its dis-
into the merits of the matter, and a re- closure is duly ordered by a Federal
questor is entitled to a decision on the court, notwithstanding other provi-
merits.) If an appeal from such a denial sions of this subpart to the contrary.
has not been received by the EPA Free- (d) Types of final determinations; mat-
dom of Information Officer on the
ters to be considered. (1) If the EPA legal
tenth working day after issuance of the
office finds that a business has failed to
denial, the matter shall be handled as
furnish comments under paragraph (b)
if an appeal had been received on that
of this section by the specified due
day, for purposes of establishing a
date, it shall determine that the busi-
schedule for issuance of an appeal deci-
ness has waived its claim. If, after ap-
sion under § 2.117 of this part.
plication of the preceding sentence, no
(b) Comment period; extensions; untime-
claim applies to the information, the
liness as waiver of claim. (1) Each busi-
office shall determine that the infor-
ness which has been furnished the no-
mation is not entitled to confidential
tice and opportunity to comment pre-
scribed by § 2.204(d)(1) and § 2.204(e) treatment under this subpart and, sub-
shall furnish its comments to the office ject to § 2.210, is available to the public.
specified in the notice in time to be (2) In all other cases, the EPA legal
postmarked or hand delivered to that office shall consider each business’s
office not later than the date specified claim and comments, the various pro-
in the notice (or the date established in visions of this subpart, any previously-
lieu thereof under this section). issued determinations under this sub-
(2) The period for submission of com- part which are pertinent, the materials
ments may be extended if, before the furnished it under § 2.204(f), and such
comments are due, a request for an ex- other materials as it finds appropriate.
tension of the comment period is made With respect to each claim, the office
by the business and approved by the shall determine whether or not the in-
EPA legal office. Except in extraor- formation is entitled to confidential
dinary circumstances, the EPA legal treatment for the benefit of the busi-
office will not approve such an exten- ness that asserted the claim, and the
sion without the consent of any person period of any such entitlement (e.g.,
whose request for release of the infor- until a certain date, until the occur-
mation under 5 U.S.C. 552 is pending. rence of a specified event, or perma-
(3) The period for submission of com- nently), and shall take further action
ments by a business may be shortened under paragraph (e) or (f) of this sec-
in the manner described in paragraph tion, as appropriate.
(g) of this section. (3) Whenever the claims of two or
(4) If a business’s comments have not more businesses apply to the same in-
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been received by the specified EPA of- formation, the EPA legal office shall
fice by the date they are due (including take action appropriate under the par-
any approved extension), that office ticular circumstances to protect the
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§ 2.205 40 CFR Ch. I (7–1–21 Edition)
interests of all persons concerned (in- final agency action may be subject to
cluding any person whose request for judicial review under Chapter 7 of Title
the information is pending under 5 5, United States Code. With respect to
U.S.C. 552). EPA’s implementation of the deter-
(e) Determination that information is mination, the notice shall state that
entitled to confidential treatment. If the (subject to § 2.210) EPA will make the
EPA legal office determines that the information available to the public on
information is entitled to confidential the tenth working day after the date of
treatment for the full period requested the business’s receipt of the written
by the business which made the claim, notice (or on such later date as is es-
EPA shall maintain the information in tablished in lieu thereof by the EPA
confidence for such period, subject to legal office under paragraph (f)(3) of
paragraph (h) of this section, § 2.209, this section), unless the EPA legal of-
and the other provisions of this subpart fice has first been notified of the
which authorize disclosure in specified business’s commencement of an action
circumstances, and the office shall so in a Federal court to obtain judicial re-
inform the business. If any person’s re- view of the determination, and to ob-
quest for the release of the information tain preliminary injunctive relief
is then pending under 5 U.S.C. 552, the against disclosure. The notice shall
EPA legal office shall issue a final de- further state that if such an action is
termination denying that request. timely commenced, EPA may nonethe-
(f) Determination that information is less make the information available to
not entitled to confidential treatment; no-
the public (in the absence of an order
tice; waiting period; release of informa-
by the court to the contrary), once the
tion. (1) Notice of denial (or partial de-
court has denied a motion for a pre-
nial) of a business confidentiality
liminary injunction in the action or
claim, in the form prescribed by para-
has otherwise upheld the EPA deter-
graph (f)(2) of this section, shall be fur-
mination, or whenever it appears to
nished—
the EPA legal office, after reasonable
(i) By the EPA office taking action
notice to the business, that the busi-
under § 2.204, to each business on behalf
ness is not taking appropriate meas-
of which a claim has been made, when-
ures to obtain a speedy resolution of
ever § 2.204(d)(2) requires such notice;
and the action. If the information has been
(ii) By the EPA legal office taking found to be temporarily entitled to
action under this section, to each busi- confidential treatment, the notice
ness which has asserted a claim appli- shall further state that the informa-
cable to the information and which has tion will not be disclosed prior to the
furnished timely comments under para- end of the period of such temporary en-
graph (b) of this section, whenever the titlement to confidential treatment.
EPA legal office determines that the (3) The period established in a notice
information is not entitled to confiden- under paragraph (f)(2) of this section
tial treatment under this subpart for for commencement of an action to ob-
the benefit of the business, or deter- tain judicial review may be extended if,
mines that the period of any entitle- before the expiration of such period, a
ment to confidential treatment is request for an extension is made by the
shorter than that requested by the business and approved by the EPA
business. legal office. Except in extraordinary
(2) The notice prescribed by para- circumstances, the EPA legal office
graph (f)(1) of this section shall be will not approve such an extension
written, and shall be furnished by cer- without the consent of any person
tified mail (return receipt requested), whose request for release of the infor-
by personal delivery, or by other means mation under 5 U.S.C. 552 is pending.
which allows verification of the fact of (4) After the expiration of any period
receipt and the date of receipt. The no- of temporary entitlement to confiden-
tice shall state the basis for the deter- tial treatment, a determination under
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Environmental Protection Agency § 2.206
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§ 2.207 40 CFR Ch. I (7–1–21 Edition)
only if EPA first determines that the (e) If the EPA legal office determines
information is entitled to confidential that the information would constitute
treatment under this subpart; and voluntarily submitted information and
(4) The EPA office which desires sub- that it is entitled to confidential treat-
mission of the information has re- ment, it shall so inform the EPA office
quested that the EPA legal office issue which requested the determination and
a determination under this section. the business which submitted it, and
(b) The EPA office requesting an ad- shall forward the information to the
vance determination under this section EPA office which requested the deter-
shall— mination.
(1) Arrange to have the business fur-
nish directly to the EPA legal office a § 2.207 Class determinations.
copy of the information (or, where fea- (a) The General Counsel may make
sible, a description of the nature of the and issue a class determination under
information sufficient to allow a deter- this section if he finds that—
mination to be made), as well as the (1) EPA possesses, or is obtaining, re-
business’s comments concerning the lated items of business information;
matters addressed in § 2.204(e)(4), ex- (2) One or more characteristics com-
cluding, however, matters addressed in mon to all such items of information
§ 2.204 (e)(4)(iii) and (e)(4)(iv); and will necessarily result in identical
(2) Furnish to the EPA legal office treatment for each such item under
the materials referred to in § 2.204(f) (3), one or more of the provisions in this
(7), (8), and (9). subpart, and that it is therefore proper
(c) In making a determination under to treat all such items as a class for
this section, the EPA legal office shall one or more purposes under this sub-
first determine whether or not the in- part; and
formation would constitute voluntarily (3) A class determination would serve
submitted information under § 2.201(i). a useful purpose.
If the information would constitute (b) A class determination shall clear-
voluntarily submitted information, the ly identify the class of information to
legal office shall further determine which it pertains.
whether the information is entitled to (c) A class determination may state
confidential treatment. that all of the information in the
(d) If the EPA legal office determines class—
that the information would not con- (1) Is, or is not, voluntarily sub-
stitute voluntarily submitted informa- mitted information under § 2.201(i);
tion, or determines that it would con- (2) Is, or is not, governed by a par-
stitute voluntarily submitted informa- ticular section of this subpart, or by a
tion but would not be entitled to con- particular set of substantive criteria
fidential treatment, it shall so inform under this subpart;
the business and the EPA office which (3) Fails to satisfy one or more of the
requested the determination, stating applicable substantive criteria, and is
the basis of the determination, and therefore ineligible for confidential
shall return to the business all copies treatment;
of the information which it may have (4) Satisfies one or more of the appli-
received from the business (except that cable substantive criteria; or
if a request under 5 U.S.C. 552 for re- (5) Satisfies one or more of the appli-
lease of the information is received cable substantive criteria during a cer-
while the EPA legal office is in posses- tain period, but will be ineligible for
sion of the information, the legal office confidential treatment thereafter.
shall retain a copy of the information, (d) The purpose of a class determina-
but shall not disclose it unless ordered tion is simply to make known the
by a Federal court to do so). The legal Agency’s position regarding the man-
office shall not disclose the informa- ner in which information within the
tion to any other EPA office or em- class will be treated under one or more
ployee and shall not use the informa- of the provisions of this subpart. Ac-
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tion for any purpose except the deter- cordingly, the notice of opportunity to
mination under this section, unless submit comments referred to in
otherwise directed by a Federal court. § 2.204(d)(1)(ii) and § 2.205(b), and the list
42
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Environmental Protection Agency § 2.209
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§ 2.209 40 CFR Ch. I (7–1–21 Edition)
to cover the information and of any de- mation designated as confidential un-
termination under this subpart that less—
the information is entitled to confiden- (i) The other agency has statutory
tial treatment. authority both to compel production of
(c) Disclosure to other Federal agencies. the information and to make the pro-
EPA may disclose business information posed disclosure, and the other agency
to another Federal agency if— has, prior to disclosure of the informa-
(1) EPA receives a written request for tion to anyone other than its officers
disclosures of the information from a and employees, furnished to each af-
duly authorized officer or employee of fected business at least the same notice
the other agency or on the initiative of to which the affected business would be
EPA when such disclosure is necessary entitled under this subpart;
to enable the other agency to carry out (ii) The other agency has obtained
a function on behalf of EPA; the consent of each affected business to
(2) The request, if any, sets forth the the proposed disclosure; or
official purpose for which the informa- (iii) The other agency has obtained a
tion is needed; written statement from the EPA Gen-
(3) When the information has been eral Counsel or an EPA Regional Coun-
claimed as confidential or has been de- sel that disclosure of the information
termined to be confidential, the re- would be proper under this subpart.
sponsible EPA office provides notice to (d) Court-ordered disclosure. EPA may
each affected business of the type of in- disclose any business information in
formation to be disclosed and to whom any manner and to the extent ordered
it is to be disclosed. At the discretion by a Federal court. Where possible, and
of the office, such notice may be given when not in violation of a specific di-
by notice published in the FEDERAL rective from the court, the EPA office
REGISTER at least 10 days prior to dis- disclosing information claimed as con-
closure, or by letter sent by certified fidential or determined to be confiden-
mail return receipt requested or tele- tial shall provide as much advance no-
gram either of which must be received tice as possible to each affected busi-
by the affected business at least 10 ness of the type of information to be
days prior to disclosure. However, no disclosed and to whom it is to be dis-
notice shall be required when EPA fur- closed, unless the affected business has
nishes business information to another actual notice of the court order. At the
Federal agency to perform a function discretion of the office, subject to any
on behalf of EPA, including but not restrictions by the court, such notice
limited to— may be given by notice in the FEDERAL
(i) Disclosure to the Department of REGISTER, letter sent by certified mail
Justice for purposes of investigation or return receipt requested, or telegram.
prosecution of civil or criminal viola- (e) Disclosure within EPA. An EPA of-
tions of Federal law related to EPA ac- fice, officer, or employee may disclose
tivities; any business information to another
(ii) Disclosure to the Department of EPA office, officer, or employee with
Justice for purposes of representing an official need for the information.
EPA in any matter; or (f) Disclosure with consent of business.
(iii) Disclosure to any Federal agency EPA may disclose any business infor-
for purposes of performing an EPA mation to any person if EPA has ob-
statutory function under an inter- tained the prior consent of each af-
agency agreement. fected business to such disclosure.
(4) EPA notifies the other agency of (g) Record of disclosures to be main-
any unresolved business confidentiality tained. Each EPA office which discloses
claim covering the information and of information to Congress, a committee
any determination under this subpart or subcommittee of Congress, the
that the information is entitled to con- Comptroller General, or another Fed-
fidential treatment, and that further eral agency under the authority of
disclosure of the information may be a paragraph (b) or (c) of this section,
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Environmental Protection Agency § 2.212
who has custody or possession of busi- available to the public (or otherwise
ness information shall take appro- disclose to persons other than EPA of-
priate measures to properly safeguard ficers and employees) any information
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§ 2.213 40 CFR Ch. I (7–1–21 Edition)
under this section, the following EPA ness information is entitled to con-
inquiries and notices to the business fidential treatment, and EPA is sued
shall be addressed to the designee: by a requester under the Freedom of
46
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Environmental Protection Agency § 2.301
Information Act for disclosure of that (i) EPA has no statutory power to
information, EPA will: compel submission of the information
(1) Notify each affected business of directly from the affected business, or
the suit within 10 days after service of (ii) While EPA has statutory power
the complaint upon EPA; to compel submission of the informa-
(2) Where necessary to preparation of tion directly from the affected busi-
EPA’s defense, call upon each affected ness, compelling submission of the in-
business to furnish assistance; and formation directly from the business
(3) Not oppose a motion by any af- would—
fected business to intervene as a party (A) Require time in excess of that
to the suit under rule 24(b) of the Fed- available to the EPA office to perform
eral Rules of Civil Procedure. its necessary work with the informa-
(c) EPA will defend its final confiden- tion,
tiality determination, but EPA expects (B) Duplicate information already
the affected business to cooperate to collected by the other agency and over-
the fullest extent possible in this de- ly burden the affected business, or
fense. (C) Overly burden the resources of
EPA.
[43 FR 40001, Sept. 8, 1978] (d) To determine that an agreement
proposed under paragraph (b) of this
§ 2.215 Confidentiality agreements. section is proper, the General Counsel
(a) No EPA officer, employee, con- must find that the agreement states—
tractor, or subcontractor shall enter (1) The purpose for which the infor-
into any agreement with any affected mation is required by EPA;
business to keep business information (2) The conditions under which the
confidential unless such agreement is agency will furnish the information to
consistent with this subpart. No EPA EPA;
officer, employee, contractor, or sub- (3) The information subject to the
contractor shall promise any affected agreement;
business that business information will (4) That the agreement does not
be kept confidential unless the promise cover information acquired by EPA
is consistent with this subpart. from another source;
(b) If an EPA office has requested in- (5) The manner in which EPA will
formation from a State, local, or Fed- treat the information; and
eral agency and the agency refuses to (6) That EPA will treat the informa-
furnish the information to EPA be- tion in accordance with the agreement
cause the information is or may con- subject to an order of a Federal court
stitute confidential business informa- to disclose the information.
tion, the EPA office may enter into an (e) EPA will treat any information
agreement with the agency to keep the acquired pursuant to an agreement
information confidential, notwith- under paragraph (b) of this section in
standing the provisions of this subpart. accordance with the procedures of this
However, no such agreement shall be subpart except where the agreement
made unless the General Counsel deter- specifies otherwise.
mines that the agreement is necessary
[43 FR 40001, Sept. 8, 1978]
and proper.
(c) To determine that an agreement §§ 2.216–2.300 [Reserved]
proposed under paragraph (b) of this
section is necessary, the General Coun- § 2.301 Special rules governing certain
sel must find: information obtained under the
(1) The EPA office requesting the in- Clean Air Act.
formation needs the information to (a) Definitions. For the purpose of this
perform its functions; section:
(2) The agency will not furnish the (1) Act means the Clean Air Act, as
information to EPA without an agree- amended, 42 U.S.C. 7401 et seq.
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ment by EPA to keep the information (2)(i) Emission data means, with ref-
confidential; and erence to any source of emission of any
(3) Either: substance into the air—
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§ 2.301 40 CFR Ch. I (7–1–21 Edition)
(A) Information necessary to deter- tions which implement the Act, except
mine the identity, amount, frequency, for determinations under this subpart.
concentration, or other characteristics (5) Manufacturer has the meaning
(to the extent related to air quality) of given it in section 216(1) of the Act, 42
any emission which has been emitted U.S.C. 7550(1).
by the source (or of any pollutant re- (b) Applicability. (1) This section ap-
sulting from any emission by the plies to business information which
source), or any combination of the was—
foregoing; (i) Provided or obtained under sec-
(B) Information necessary to deter- tion 114 of the Act, 42 U.S.C. 7414, by
mine the identity, amount, frequency, the owner or operator of any sta-
concentration, or other characteristics tionary source, for the purpose (A) of
(to the extent related to air quality) of developing or assisting in the develop-
the emissions which, under an applica- ment of any implementation plan
ble standard or limitation, the source under section 110 or 111(d) of the Act, 42
was authorized to emit (including, to U.S.C. 7410, 7411(d), any standard of per-
the extent necessary for such purposes, formance under section 111 of the Act,
a description of the manner or rate of 42 U.S.C. 7411, or any emission standard
operation of the source); and under section 112 of the Act, 42 U.S.C.
(C) A general description of the loca- 7412, (B) of determining whether any
tion and/or nature of the source to the
person is in violation of any such
extent necessary to identify the source
standard or any requirement of such a
and to distinguish it from other
plan, or (C) of carrying out any provi-
sources (including, to the extent nec-
sion of the Act (except a provision of
essary for such purposes, a description
Part II of the Act with respect to a
of the device, installation, or operation
manufacturer of new motor vehicles or
constituting the source).
new motor vehicle engines);
(ii) Notwithstanding paragraph
(a)(2)(i) of this section, the following (ii) Provided or obtained under sec-
information shall be considered to be tion 208 of the Act, 42 U.S.C. 7542, for
emission data only to the extent nec- the purpose of enabling the Adminis-
essary to allow EPA to disclose pub- trator to determine whether a manu-
licly that a source is (or is not) in com- facturer has acted or is acting in com-
pliance with an applicable standard or pliance with the Act and regulations
limitation, or to allow EPA to dem- under the Act, or provided or obtained
onstrate the feasibility, practicability, under section 206(c) of the Act, 42
or attainability (or lack thereof) of an U.S.C. 7525(c); or
existing or proposed standard or limi- (iii) Provided in response to a sub-
tation: poena for the production of papers,
(A) Information concerning research, books, or documents issued under the
or the results of research, on any authority of section 307(a) of the Act,
project, method, device or installation 42 U.S.C. 7607(a).
(or any component thereof) which was (2) Information will be considered to
produced, developed, installed, and have been provided or obtained under
used only for research purposes; and section 114 of the Act if it was provided
(B) Information concerning any prod- in response to a request by EPA made
uct, method, device, or installation (or for any of the purposes stated in sec-
any component thereof) designed and tion 114, or if its submission could have
intended to be marketed or used com- been required under section 114, regard-
mercially but not yet so marketed or less of whether section 114 was cited as
used. the authority for any request for the
(3) Standard or limitation means any information, whether an order to pro-
emission standard or limitation estab- vide the information was issued under
lished or publicly proposed pursuant to section 113(a) of the Act, 42 U.S.C.
the Act or pursuant to any regulation 7413(a), whether an action was brought
under the Act. under section 113(b) of the Act, 42
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(4) Proceeding means any rulemaking, U.S.C. 7413(b), or whether the informa-
adjudication, or licensing conducted by tion was provided directly to EPA or
EPA under the Act or under regula- through some third person.
48
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Environmental Protection Agency § 2.301
the Clean Air Act, to be either of the ation of any timely comments sub-
following: mitted by the business, the Office of
(i) Emission data. General Counsel makes a revised final
49
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§ 2.301 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 2.301
timely comments submitted by the ceeding and to the public interest that
business, the EPA office determines in would result from the disclosure. The
writing that, for reasons directly asso- presiding officer may condition disclo-
ciated with the conduct of the pro- sure of the information to a party of
ceeding, the contemplated disclosure record on the making of such protec-
would serve the public interest, and the tive arrangements and commitments
presiding officer determines in writing as he finds to be warranted. Disclosure
that the information is relevant to a to one or more parties of record, under
matter in controversy in the pro- protective arrangements or commit-
ceeding. The presiding officer may con- ments, shall not, of itself, affect the
dition disclosure of the information to eligibility of information to confiden-
a party of record on the making of such tial treatment under the other provi-
protective arrangements and commit- sions of this subpart. Any affected
ments as he finds to be warranted. Dis- business shall be given at least 5 days
closure to one or more parties of notice by the presiding officer prior to
record, under protective arrangements making the information available to
or commitments, shall not, of itself, af- one or more of the parties of record to
fect the eligibility of information for the proceeding.
confidential treatment under the other (h) Disclosure to authorized representa-
provisions of this subpart. Any affected tives. (1) Under sections 114, 208 and
business shall be given at least 5 days 307(a) of the Act, EPA possesses au-
notice by the presiding officer prior to thority to disclose to any authorized
making the information available to representative of the United States any
the public or to one or more of the par- information to which this section ap-
ties of record to the proceeding. plies, notwithstanding the fact that
(4) In connection with any proceeding the information might otherwise be en-
involving a decision by a presiding offi- titled to confidential treatment under
cer after an evidentiary or adjudica- this subpart. Such authority may be
tory hearing, information to which this exercised only in accordance with para-
section applies may be made available graph (h) (2) or (3) of this section.
to one or more parties of record to the (2)(i) A person under contract or sub-
proceeding, upon request of a party, contract to the United States govern-
under this paragraph (g)(4). A party of ment to perform work in support of
record seeking disclosure of informa- EPA in connection with the Act or reg-
tion shall direct his request to the pre- ulations which implement the Act may
siding officer. Upon receipt of such a be considered an authorized representa-
request, the presiding officer shall no- tive of the United States for purposes
tify each affected business that disclo- of this paragraph (h). For purposes of
sure under this paragraph (g)(4) has this section, the term ‘‘contract’’ in-
been requested, and shall afford each cludes grants and cooperative agree-
such business a period for comment ments under the Environmental Pro-
found by the presiding officer to be rea- grams Assistance Act of 1984 (Pub. L.
sonable under the circumstances. Infor- 98–313), and the term ‘‘contractor’’ in-
mation may be disclosed to a party of cludes grantees and cooperators under
record under this paragraph (g)(4) only the Environmental Programs Assist-
if, after consideration of any timely ance Act of 1984. Subject to the limita-
comments submitted by the business, tions in this paragraph (h)(2), informa-
the presiding officer determines in tion to which this section applies may
writing that (i) the party of record has be disclosed:
satisfactorily shown that with respect (A) To a contractor or subcontractor
to a significant matter which is in con- with EPA, if the EPA program office
troversy in the proceeding, the party’s managing the contract first determines
ability to participate effectively in the in writing that such disclosure is nec-
proceeding will be significantly im- essary in order that the contractor or
paired unless the information is dis- subcontractor may carry out the work
closed to him, and (ii) any harm to an required by the contract or sub-
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§ 2.301 40 CFR Ch. I (7–1–21 Edition)
EPA program office which provides the (iii) No information shall be disclosed
information to that agency, con- under this paragraph (h)(2) until each
tractor, or subcontractor first deter- affected business has been furnished
mines in writing, in consultation with notice of the contemplated disclosure
the General Counsel, that such disclo- by the EPA program office and has
sure is necessary in order that the con- been afforded a period found reasonable
tractor or subcontractor may carry out by that office (not less than 5 working
the work required by the contract or days) to submit its comments. Such
subcontract. notice shall include a description of
(ii) No information shall be disclosed the information to be disclosed, the
under this paragraph (h)(2), unless this identity of the contractor or subcon-
contract or subcontract in question tractor, the contract or subcontract
provides: number, if any, and the purposes to be
(A) That the contractor or subcon- served by the disclosure.
tractor and the contractor’s or sub- (iv) The EPA program office shall
contractor’s employees shall use the prepare a record of each disclosure
information only for the purpose of under this paragraph (h)(2), showing
carrying out the work required by the the contractor or subcontractor, the
contract or subcontract, shall refrain contract or subcontract number, the
from disclosing the information to any-
information disclosed, the date(s) of
one other than EPA without the prior
disclosure, and each affected business.
written approval of each affected busi-
The EPA program office shall maintain
ness or of an EPA legal office and shall
return to EPA all copies of the infor- the record of disclosure and the deter-
mation (and any abstracts or extracts mination of necessity prepared under
therefrom) upon request by the EPA paragraph (h)(2)(i) of this section for a
program office, whenever the informa- period of not less than 36 months after
tion is no longer required by the con- the date of the disclosure.
tractor or subcontractor for the per- (3) A State or local governmental
formance of the work required under agency which has duties or responsibil-
the contract or subcontract, or upon ities under the Act, or under regula-
completion of the contract or sub- tions which implement the Act, may be
contract (where the information was considered an authorized representa-
provided to the contractor or subcon- tive of the United States for purposes
tractor by an agency other than EPA, of this paragraph (h). Information to
the contractor may disclose or return which this section applies may be fur-
the information to that agency); nished to such an agency at the agen-
(B) That the contractor or subcon- cy’s written request, but only if—
tractor shall obtain a written agree- (i) The agency has first furnished to
ment to honor such terms of the con- the EPA office having custody of the
tract or subcontract from each of the information a written opinion from the
contractor’s or subcontractor’s em- agency’s chief legal officer or counsel
ployees who will have access to the in- stating that under applicable State or
formation, before such employee is al- local law the agency has the authority
lowed such access; and to compel a business which possesses
(C) That the contractor or subcon- such information to disclose it to the
tractor acknowledges and agrees that agency, or
the contract or subcontract provisions (ii) Each affected business is in-
concerning the use and disclosure of formed of those disclosures under this
business information are included for paragraph (h)(3) which pertain to it,
the benefit of, and shall be enforceable and the agency has shown to the satis-
by, both the United States government
faction of an EPA legal office that the
and any affected business having an in-
agency’s use and disclosure of such in-
terest in information concerning it
formation will be governed by State or
supplied to the contractor or subcon-
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Environmental Protection Agency § 2.302
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§ 2.303 40 CFR Ch. I (7–1–21 Edition)
33 U.S.C. 1319(b), and whether the infor- tial treatment, shall be available to
mation was provided directly to EPA the public, unless EPA determines that
or through some third person. the information is exempt from manda-
(3) Information will be considered to tory disclosure under 5 U.S.C. 552(b) for
have been provided or obtained under reasons other than reasons of business
section 509(a) of the Act if it was pro- confidentiality and cannot or should
vided in response to a subpoena issued not be made available to the public.
under section 509(a), or if its produc- (g) Disclosure of information relevant to
tion could have been required by sub- a proceeding. (1) Under sections 308 and
poena under section 509(a), regardless 509(a) of the Act, any information to
of whether section 509(a) was cited as which this section applies may be re-
the authority for any request for the leased by EPA because of the relevance
information, whether a subpoena was of the information to a proceeding,
issued by EPA, whether a court issued notwithstanding the fact that the in-
an order under section 307(a), or wheth- formation otherwise might be entitled
er the information was provided di- to confidential treatment under this
rectly to EPA or through some third subpart. Release of information to
person. which this section applies because of
(4) This section specifically does not
its relevance to a proceeding shall be
apply to information obtained under
made only in accordance with this
section 310(d) or 312(g)(3) of the Act, 33
paragraph (g).
U.S.C. 1320(d), 1322(g)(3).
(c) Basic rules which apply without (2)–(4) The provisions of § 2.301(g) (2),
change. Sections 2.201 through 2.207, (3), and (4) are incorporated by ref-
2.209, 2.211 through 2.215 apply without erence as paragraphs (g) (2), (3), and (4),
change to information to which this respectively of this section.
section applies. (h) Disclosure to authorized representa-
(d) [Reserved] tives. (1) Under sections 308 and 509(a) of
(e) Substantive criteria for use in con- the Act, EPA possesses authority to
fidentiality determinations. Section 2.208 disclose to any authorized representa-
applies to information to which this tive of the United States any informa-
section applies, except that informa- tion to which this section applies, not-
tion which is effluent data or a stand- withstanding the fact that the infor-
ard or limitation is not eligible for mation might otherwise be entitled to
confidential treatment. No information confidential treatment under this sub-
to which this section applies is volun- part. Such authority may be exercised
tarily submitted information. only in accordance with paragraph
(f) Availability of information not enti- (h)(2) or (h)(3) of this section.
tled to confidential treatment. Section (2)–(3) The provisions of § 2.301(h) (2)
2.210 does not apply to information to and (3) are incorporated by reference as
which this section applies. Effluent paragraphs (h) (2) and (3), respectively,
data, standards or limitations, and any of this section.
other information provided or obtained
[41 FR 36902, Sept. 1, 1976, as amended at 43
under section 308 of the Act which is
FR 40003, Sept. 8, 1978]
determined under this subpart not to
be entitled to confidential treatment, § 2.303 Special rules governing certain
shall be available to the public not- information obtained under the
withstanding any other provision of Noise Control Act of 1972.
this part. Effluent data and standards
or limitations provided in response to a (a) Definitions. For the purposes of
subpoena issued under section 509(a) of this section:
the Act shall be available to the public (1) Act means the Noise Control Act
notwithstanding any other provision of of 1972, 42 U.S.C. 4901 et seq.
this part. Information (other than ef- (2) Manufacturer has the meaning
fluent data and standards or limita- given it in 42 U.S.C. 4902(6).
tions) provided in response to a sub- (3) Product has the meaning given it
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Environmental Protection Agency § 2.304
EPA under the Act or under regula- erence as paragraphs (g) (2), (3), and (4),
tions which implement the Act, except respectively, of this section.
for determinations under this subpart.
[41 FR 36902, Sept. 1, 1976, as amended at 43
(b) Applicability. This section applies FR 40003, Sept. 8, 1978]
only to information provided to or ob-
tained by EPA under section 13 of the § 2.304 Special rules governing certain
Act, 42 U.S.C. 4912, by or from any information obtained under the
manufacturer of any product to which Safe Drinking Water Act.
regulations under section 6 or 8 of the (a) Definitions. For the purposes of
Act (42 U.S.C. 4905, 4907) apply. Infor- this section:
mation will be deemed to have been (1) Act means the Safe Drinking
provided or obtained under section 13 Water Act, 42 U.S.C. 300f et seq.
of the Act, if it was provided in re- (2) Contaminant means any physical,
sponse to a request by EPA made for chemical, biological, or radiological
the purpose of enabling EPA to deter- substance or matter in water.
mine whether the manufacturer has (3) Proceeding means any rulemaking,
acted or is acting in compliance with adjudication, or licensing process con-
the Act, or if its submission could have ducted by EPA under the Act or under
been required under section 13 of the regulations which implement the Act,
Act, regardless of whether section 13 except for any determination under
was cited as authority for the request, this part.
whether an order to provide such infor- (b) Applicability. (1) This section ap-
mation was issued under section 11(d) plies only to information—
of the Act, 42 U.S.C. 4910(d), and wheth- (i) Which was provided to or obtained
er the information was provided di- by EPA pursuant to a requirement of a
rectly to EPA by the manufacturer or regulation which was issued by EPA
through some third person. under the Act for the purpose of—
(c) Basic rules which apply without (A) Assisting the Administrator in
change. Sections 2.201 through 2.207 and establishing regulations under the Act;
2.209 through 2.215 apply without (B) Determining whether the person
change to information to which this providing the information has acted or
section applies. is acting in compliance with the Act;
(d) [Reserved] or
(e) Substantive criteria for use in con- (C) Administering any program of fi-
fidentiality determinations. Section 2.208 nancial assistance under the Act; and
applies without change to information (ii) Which was provided by a person—
to which this section applies; however, (A) Who is a supplier of water, as de-
no information to which this section fined in section 1401(5) of the Act, 42
applies is voluntarily submitted infor- U.S.C. 300f(5);
mation. (B) Who is or may be subject to a pri-
(f) [Reserved] mary drinking water regulation under
(g) Disclosure of information relevant to section 1412 of the Act, 42 U.S.C. 300g–
a proceeding. (1) Under section 13 of the 1;
Act, any information to which this sec- (C) Who is or may be subject to an
tion applies may be released by EPA applicable underground injection con-
because of its relevance to a matter in trol program, as defined in section
controversy in a proceeding, notwith- 1422(d) of the Act, 42 U.S.C.300h–1(d);
standing the fact that the information (D) Who is or may be subject to the
otherwise might be entitled to con- permit requirements of section 1424(b)
fidential treatment under this subpart. of the Act, 42 U.S.C. 300h–3(b);
Release of information because of its (E) Who is or may be subject to an
relevance to a proceeding shall be order issued under section 1441(c) of the
made only in accordance with this Act, 42 U.S.C. 300j(c); or
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§ 2.305 40 CFR Ch. I (7–1–21 Edition)
(2) This section applies to any infor- (h) Disclosure to authorized representa-
mation which is described by para- tives. (1) Under section 1445(d) of the
graph (b)(1) of this section if it was pro- Act, EPA possesses authority to dis-
vided in response to a request by EPA close to any authorized representative
or its authorized representative (or by of the United States any information
a State agency administering any pro- to which this section applies, notwith-
gram under the Act) made for any pur- standing the fact that the information
pose stated in paragraph (b)(1) of this otherwise might be entitled to con-
section, or if its submission could have fidential treatment under this subpart.
been required under section 1445 of the Such authority may be exercised only
Act, 42 U.S.C. 300j–4, regardless of in accordance with paragraph (h)(2) or
whether such section was cited in any (h)(3) of this section.
request for the information, or whether (2)–(3) The provisions of § 2.301(h) (2)
the information was provided directly and (3) are incorporated by reference as
to EPA or through some third person. paragraphs (h) (2) and (3), respectively,
(c) Basic rules which apply without of this section.
change. Sections 2.201 through 2.207, [41 FR 36902, Sept. 1, 1976, as amended at 43
2.209, and 2.211 through 2.215 apply FR 40003, Sept. 8, 1978]
without change to information to
which this section applies. § 2.305 Special rules governing certain
(d) [Reserved] information obtained under the
Solid Waste Disposal Act, as amend-
(e) Substantive criteria for use in con- ed.
fidentiality determinations. Section 2.208
applies to information to which this (a) Definitions. For purposes of this
section applies, except that informa- section:
(1) Act means the Solid Waste Dis-
tion which deals with the existence, ab-
posal Act, as amended, including
sence, or level of contaminants in
amendments made by the Resource
drinking water is not eligible for con-
Conservation and Recovery Act of 1976,
fidential treatment. No information to
as amended, 42 U.S.C. 6901 et seq.
which this section applies is volun-
(2) Person has the meaning given it in
tarily submitted information.
section 1004(15) of the Act, 42 U.S.C.
(f) Nondisclosure for reasons other than 6903(15).
business confidentiality or where disclo- (3) Hazardous waste has the meaning
sure is prohibited by other statute. Sec- given it in section 1004(5) of the Act, 42
tion 2.210 applies to information to U.S.C. 6903(5).
which this section applies, except that (4) Proceeding means any rulemaking,
information which deals with the exist- adjudication, or licensing conducted by
ence, absence, or level of contaminants EPA under the Act or under regula-
in drinking water shall be available to tions which implement the Act includ-
the public notwithstanding any other ing the issuance of administrative or-
provision of this part. ders and the approval or disapproval of
(g) Disclosure of information relevant to plans (e.g. closure plans) submitted by
a proceeding. (1) Under section 1445(d) of persons subject to regulation under the
the Act, any information to which this Act, but not including determinations
section applies may be released by EPA under this subpart.
because of the relevance of the infor- (b) Applicability. This section applies
mation to a proceeding, notwith- to information provided to or obtained
standing the fact that the information by EPA under section 3001(b)(3)(B),
otherwise might be entitled to con- 3007, or 9005 of the Act, 42 U.S.C
fidential treatment under this subpart. 6921(b)(3)(B), 6927, or 6995. Information
Release of information to which this will be considered to have been pro-
section applies because of its relevance vided or obtained under sections
to a proceeding shall be made only in 3001(b)(3)(B), 3007, or 9005 of the Act if
accordance with this paragraph (g). it was provided in response to a request
(2)–(4) The provisions of § 2.301(g) (2), from EDA made for any of the purposes
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(3), (4) are incorporated by reference as stated in the Act or if its submission
paragraphs (g) (2), (3), and (4), respec- could have been required under those
tively, of this section. provisions of the Act regardless of
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Environmental Protection Agency § 2.306
whether a specific section was cited as agency under this paragraph (h), the
the authority for any request for the EPA office furnishing the information
information or whether the informa- to the contractor, subcontractor, or
tion was provide directly to EPA or State or local government agency shall
through some third person. notify the contractor, subcontractor,
(c) Basic rules which apply without or State or local government agency
change. Sections 2.201 through 2.207 and that the information may be entitled
2.209 through 2.215 apply without to confidential treatment and that any
change to information to which this knowing and willful disclosure of the
section applies. information may subject the con-
(d) [Reserved] tractor, subcontractor, or State or
(e) Substantive criteria for use in con- local government agency and its em-
fidentiality determinations. Section 2.208 ployees to penalties in section
applies without change to information 3001(b)(3)(B), 3007(b)(2), or 9005(b)(1) of
to which this section applies; however, the Act (42 U.S.C. 6921(b)(3)(B), 6927(b),
no information to which this section or 6995(b)).
applies is voluntarily submitted infor- [43 FR 40003, Sept. 8, 1978, as amended at 50
mation. FR 51662, Dec. 18, 1985]
(f) [Reserved]
(g) Disclosure of information relevant in § 2.306 Special rules governing certain
a proceeding. (1) Under sections 3007(b) information obtained under the
and 9005(b) of the Act (42 U.S.C. 6927(b) Toxic Substances Control Act.
and 6995(b)), any information to which (a) Definitions. For the purposes of
this section applies may be disclosed this section:
by EPA because of the relevance of the (1) Act means the Toxic Substances
information in a proceeding under the Control Act, 15 U.S.C. 2601 et seq.
Act, notwithstanding the fact that the (2) Chemical substance has the mean-
information otherwise might be enti- ing given it in section 3(2) of the Act,
tled to confidential treatment under 15 U.S.C. 2602(2).
this subpart. Disclosure of information (3)(i) Health and safety data means the
to which this section applies because of information described in paragraphs
its relevance in a proceeding shall be (a)(3)(i) (A), (B), and (C) of this section
made only in accordance with this with respect to any chemical substance
paragraph (g). or mixture offered for commercial dis-
(2)–(4) The provisions of § 2.301(g) (2), tribution (including for test marketing
(3), and (4) are incorporated by ref- purposes and for use in research and
erence as paragraphs (g) (2), (3), and (4), development), any chemical substance
respectively, of this section. included on the inventory of chemical
(h) Disclosure to authorized representa- substances under section 8 of the Act
tives. (1) Under sections 3001(b)(3)(B), (15 U.S.C. 2607), or any chemical sub-
3007(b), and 9005(b) of the Act (42 U.S.C. stance or mixture for which testing is
6921(b)(3)(B), 6927(b), and 6995(b)), EPA required under section 4 of the Act (15
possesses authority to disclose to any U.S.C. 2603) or for which notification is
authorized representative of the United required under section 5 of the Act (15
States any information to which this U.S.C. 2604).
section applies, notwithstanding the (A) Any study of any effect of a
fact that the information might other- chemical substance or mixture on
wise be entitled to confidential treat- health, on the environment, or on both,
ment under this subpart. Such author- including underlying data and epide-
ity may be exercised only in accord- miological studies; studies of occupa-
ance with paragraph (h)(2) or (h)(3) of tional exposure to a chemical sub-
this section. stance or mixture; and toxicological,
(2)–(3) The provisions of § 2.301(h) (2) clinical, and ecological studies of a
and (3) are incorporated by reference as chemical substance or mixture;
paragraphs (h) (2) and (3), respectively, (B) Any test performed under the
of this section. Act; and
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(4) At the time any information is (C) Any data reported to, or other-
furnished to a contractor, subcon- wise obtained by, EPA from a study de-
tractor, or State or local government scribed in paragraph (a)(3)(i)(A) of this
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§ 2.306 40 CFR Ch. I (7–1–21 Edition)
for seeking judicial review shall be re- (1) The official purpose for which the
flected in any notice furnished to a information is needed must be in con-
business under § 2.204(d)(2). nection with the agency’s duties under
58
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Environmental Protection Agency § 2.306
any law for protection of health or the tractor, or subcontractor first deter-
environment or for specific law en- mines in writing, in consultation with
forcement purposes; and the General Counsel, that such disclo-
(2) EPA notifies the other agency sure is necessary for the satisfactory
that the information was acquired performance by the contractor or sub-
under authority of the Act and that contractor of the contract or sub-
any knowing disclosure of the informa- contract.
tion may subject the officers and em- (2)–(4) The provisions of § 2.301(h)(2)
ployees of the other agency to the pen- (ii), (iii), and (iv) are incorporated by
alties in section 14(d) of the Act (15 reference as paragraphs (j) (2), (3), and
U.S.C. 2613(d)). (4), respectively, of this section.
(i) Disclosure of information relevant in (5) At the time any information is
a proceeding. (1) Under section 14(a)(4) furnished to a contractor or subcon-
of the Act (15 U.S.C. 2613(a)(4)), any in- tractor under this paragraph (j), the
formation to which this section applies EPA office furnishing the information
may be disclosed by EPA when the in- to the contractor or subcontractor
formation is relevant in a proceeding shall notify the contractor or subcon-
under the Act, notwithstanding the tractor that the information was ac-
fact that the information otherwise quired under authority of the Act and
might be entitled to confidential treat- that any knowing disclosure of the in-
ment under this subpart. However, any formation may subject the contractor
such disclosure shall be made in a man- or subcontractor and its employees to
ner that preserves the confidentiality
the penalties in section 14(d) of the Act
of the information to the extent prac-
(15 U.S.C. 2613(d)).
ticable without impairing the pro-
(k) Disclosure of information when nec-
ceeding. Disclosure of information to
which this section applies because of essary to protect health or the environ-
its relevance in a proceeding shall be ment against an unreasonable risk of in-
made only in accordance with this jury. (1) Under section 14(a)(3) of the
paragraph (i). Act (15 U.S.C 2613(a)(3)), any informa-
(2)–(4) The provisions of § 2.301(g) (2), tion to which this section applies may
(3), and (4) are incorporated by ref- be disclosed by EPA when disclosure is
erence as paragraphs (i) (2), (3), and (4), necessary to protect health or the envi-
respectively, of this section. ronment against an unreasonable risk
(j) Disclosure of information to contrac- of injury to health or the environment.
tors and subcontractors. (1) Under sec- However, any disclosure shall be made
tion 14(a)(2) of the Act (15 U.S.C. in a manner that preserves the con-
2613(a)(2)), any information to which fidentiality of the information to the
this section applies may be disclosed extent not inconsistent with protecting
by EPA to a contractor or subcon- health or the environment against the
tractor of the United States per- unreasonable risk of injury. Disclosure
forming work under the Act, notwith- of information to which this section
standing the fact that the information applies because of the need to protect
otherwise might be entitled to con- health or the environment against an
fidential treatment under this subpart. unreasonable risk of injury shall be
Subject to the limitations in this para- made only in accordance with this
graph (j), information to which this paragraph (k).
section applies may be disclosed: (2) If any EPA office determines that
(i) To a contractor or subcontractor there is an unreasonable risk of injury
with EPA, if the EPA program office to health or the environment and that
managing the contract first determines to protect health or the environment
in writing that such disclosure is nec- against the unreasonable risk of injury
essary for the satisfactory performance it is necessary to disclose information
by the contractor or subcontractor of to which this section applies that oth-
the contract or subcontract; or erwise might be entitled to confiden-
(ii) To a contractor or subcontractor tial treatment under this subpart, the
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with an agency other than EPA, if the EPA office shall notify the General
EPA program office which provides the Counsel in writing of the nature of the
information to that agency, con- unreasonable risk of injury, the extent
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§ 2.307 40 CFR Ch. I (7–1–21 Edition)
of the disclosure proposed, how the pro- § 2.307 Special rules governing certain
posed disclosure will serve to protect information obtained under the
health or the environment against the Federal Insecticide, Fungicide and
unreasonable risk of injury, and the Rodenticide Act.
proposed date of disclosure. Such noti- (a) Definitions. For the purposes of
fication shall be made as soon as prac- this section;
ticable after discovery of the unreason- (1) Act means the Federal Insecticide,
able risk of injury. If the EPA office Fungicide and Rodenticide Act, as
determines that the risk of injury is so amended, 7 U.S.C. 136 et seq., and its
imminent that it is impracticable to predecessor, 7 U.S.C. 135 et seq.
furnish written notification to the (2) Applicant means any person who
General Counsel, the EPA office shall has submitted to EPA (or to a prede-
notify the General Counsel orally. cessor agency with responsibility for
(3) Upon receipt of notification under administering the Act) a registration
paragraph (k)(2) of this section, the statement or application for registra-
General Counsel shall make a deter- tion under the Act of a pesticide or of
mination in writing whether disclosure an establishment.
of information to which this section (3) Registrant means any person who
applies that otherwise might be enti- has obtained registration under the
tled to confidential treatment is nec- Act of a pesticide or of an establish-
essary to protect health or the environ- ment.
ment against an unreasonable risk of (b) Applicability. This section applies
injury. The General Counsel shall also to all information submitted to EPA
determine the extent of disclosure nec- by an applicant or registrant for the
essary to protect against the unreason- purpose of satisfying some requirement
able risk of injury as well as when the or condition of the Act or of regula-
disclosure must be made to protect tions which implement the Act, includ-
against the unreasonable risk of in- ing information originally submitted
jury. to EPA for some other purpose but in-
(4) If the General Counsel determines corporated by the applicant or reg-
that disclosure of information to which istrant into a submission in order to
satisfy some requirement or condition
this section applies that otherwise
of the Act or of regulations which im-
might be entitled to confidential treat-
plement the Act. This section does not
ment is necessary to protect health or
apply to information supplied to EPA
the environment against an unreason-
by a petitioner in support of a petition
able risk of injury, the General Counsel
for a tolerance under 21 U.S.C. 346a(d),
shall furnish notice to each affected
unless the information is also described
business of the contemplated disclo-
by the first sentence of this paragraph.
sure and of the General Counsel’s de-
(c) Basic rules which apply without
termination. Such notice shall be made
change. Sections 2.201 through 2.203,
in writing by certified mail, return re-
2.206, 2.207, and 2.210 through 2.215
ceipt requested, at least 15 days before
apply without change to information
the disclosure is to be made. The notice
to which this section applies.
shall state the date upon which disclo- (d) Initial action by EPA office. Sec-
sure will be made. However, if the Gen- tion 2.204 applies to information to
eral Counsel determines that the risk which this section applies, except that
of injury is so imminent that it is im- the provisions of paragraph (e) of this
practicable to furnish such notice 15 section regarding the time allowed for
days before the proposed date of disclo- seeking judicial review shall be re-
sure, the General Counsel may provide flected in any notice furnished to a
notice by means that will provide re- business under § 2.204(d)(2).
ceipt of the notice by the affected busi- (e) Final confidentiality determination
ness at least 24 hours before the disclo- by EPA legal office. Section 2.205 applies
sure is to be made. This may be done to information to which this section
by telegram, telephone, or other rea- applies, except that—
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Environmental Protection Agency § 2.308
make the determinations and take the Such authority under section
actions required by § 2.205; 12(a)(2)(D) of the Act may be exercised
(2) In addition to the statement pre- only in accordance with paragraph
scribed by the second sentence of (h)(2) or (h)(3) of this section.
§ 2.205(f)(2), the notice of denial of a (2) Information to which this section
business confidentiality claim shall applies may be disclosed (notwith-
state that under section 10(c) of the standing the fact that it might other-
Act, 7 U.S.C. 136h(c), the business may wise be entitled to confidential treat-
commence an action in an appropriate ment under this subpart) to physicians,
Federal district court for a declaratory pharmacists, hospitals, veterinarians,
judgment; law enforcement personnel, or govern-
(3) The following sentence is sub- mental agencies with responsibilities
stituted for the third sentence of for protection of public health, and to
§ 2.205(f)(2): ‘‘With respect to EPA’s im- employees of any such persons or agen-
plementation of the determination, the cies, or to other qualified persons,
notice shall state that (subject to when and to the extent that disclosure
§ 2.210) EPA will make the information is necessary in order to treat illness or
available to the public on the thirty- injury or to prevent imminent harm to
first (31st) calendar day after the date persons, property, or the environment,
of the business’s receipt of the written in the opinion of the Administrator or
notice (or on such later date as is es- his designee.
tablished in lieu thereof under para- (3) Information to which this section
graph (f)(3) of this section), unless the applies may be disclosed (notwith-
EPA legal office has first been notified standing the fact that it otherwise
of the business’s commencement of an might be entitled to confidential treat-
action in a Federal court to obtain ju- ment under this subpart) to a person
dicial review of the determination or under contract to EPA to perform
to obtain a declaratory judgment under work for EPA in connection with the
section 10(c) of the Act and to obtain Act or regulations which implement
preliminary injunctive relief against the Act, if the EPA program office
disclosure.’’; and managing the contract first determines
(4) Notwithstanding § 2.205(g), the 31 in writing that such disclosure is nec-
calendar day period prescribed by essary in order that the contractor
§ 2.205(f)(2), as modified by paragraph may carry out the work required by
(e)(3) of this section, shall not be short- the contract. Any such disclosure to a
ened without the consent of the busi- contractor shall be made only in ac-
ness. cordance with the procedure and re-
(f) [Reserved] quirements of § 2.301(h)(2) (ii) through
(g) Substantive criteria for use in con- (iv).
fidentiality determinations. Section 2.208
(4) Information to which this section
applies without change to information
applies, and which relates to formulas
to which this section applies; however,
of products, may be disclosed at any
no information to which this section
public hearing or in findings of fact
applies is voluntarily submitted infor-
issued by the Administrator, to the ex-
mation.
tent and in the manner authorized by
(h) Disclosure in special circumstances.
the Administrator or his designee.
(1) Section 2.209 applies without change
to information to which this section [41 FR 36902, Sept. 1, 1976, as amended at 43
applies. In addition, under section FR 40005, Sept. 8, 1978]
12(a)(2)(D) of the Act, 7 U.S.C.
136j(a)(2)(D), EPA possesses authority § 2.308 Special rules governing certain
to disclose any information to which information obtained under the
this section applies to physicians, Federal Food, Drug and Cosmetic
Act.
pharmacists, and other qualified per-
sons needing such information for the (a) Definitions. For the purposes of
performance of their duties, notwith- this section:
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standing the fact that the information (1) Act means the Federal Food, Drug
might otherwise be entitled to con- and Cosmetic Act, as amended, 21
fidential treatment under this subpart. U.S.C. 301 et seq.
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§ 2.308 40 CFR Ch. I (7–1–21 Edition)
(2) Petition means a petition for the an affected business, a petition shall be
issuance of a regulation establishing a treated as if it were covered by a busi-
tolerance for a pesticide chemical or ness confidentiality claim, and an EPA
exempting the pesticide chemical from office acting under § 2.204(d) shall de-
the necessity of a tolerance, pursuant termine that the information in the pe-
to section 408(d) of the Act, 21 U.S.C. tition is or may be entitled to con-
346a(d). fidential treatment and shall take ac-
(3) Petitioner means a person who has tion in accordance with § 2.204(d)(1);
submitted a petition to EPA (or to a (2) In addition to other required pro-
predecessor agency). visions of any notice furnished to a pe-
(b) Applicability. (1) This section ap- titioner under § 2.204(e), such notice
plies only to business information sub- shall state that—
mitted to EPA (or to an advisory com- (i) Section 408(f) of the Act, 21 U.S.C.
mittee established under the Act) by a 346a(f), affords absolute confidentiality
petitioner, solely in support of a peti- to information to which this section
tion which has not been acted on by applies, but after publication by EPA
the publication by EPA of a regulation of a regulation establishing a tolerance
establishing a tolerance for a pesticide (or exempting the pesticide chemical
chemical or exempting the pesticide from the necessity of a tolerance) nei-
chemical from the necessity of a toler- ther the Act nor this section affords
ance, as provided in section 408(d) (2) or any protection to the information;
(3) of the Act, 21 U.S.C. 346a(d) (2) or (ii) Information submitted in support
(3). of a petition which is also incorporated
(2) Section 2.307, rather than this sec- into a submission in order to satisfy a
tion, applies to information described requirement or condition of the Fed-
by the first sentence of § 2.307(b) (mate- eral Insecticide, Fungicide and
rial incorporated into submissions in Rodenticide Act, as amended, 7 U.S.C.
order to satisfy the requirements of the 136 et seq., is regarded by EPA as being
Federal Insecticide, Fungicide and governed, with respect to business con-
Rodenticide Act, as amended), even fidentiality, by § 2.307 rather than by
though such information was origi- this section;
nally submitted by a petitioner in sup- (iii) Although it appears that this
port of a petition. section may apply to the information
(3) This section does not apply to in- at this time, EPA is presently engaged
formation gathered by EPA under a in determining whether for any reason
proceeding initiated by EPA to estab- the information is entitled to confiden-
lish a tolerance under section 408(e) of tial treatment or will be entitled to
the Act, 21 U.S.C. 346a(e). such treatment if and when this sec-
(c) Basic rules which apply without tion no longer applies to the informa-
change. Sections 2.201, 2.202, 2.206, 2.207, tion; and
and 2.210 through 2.215 apply without (iv) Information determined by EPA
change to information to which this to be covered by this section will not
section applies. be disclosed for as long as this section
(d) Effect of submission of information continues to apply, but will be made
without claim. Section 2.203 (a) and (b) available to the public thereafter (sub-
apply without change to information ject to § 2.210) unless the business fur-
to which this section applies. Section nishes timely comments in response to
2.203(c), however, does not apply to in- the notice.
formation to which this section ap- (f) Final confidentiality determination
plies. A petitioner’s failure to assert a by EPA legal office. Section 2.205 applies
claim when initially submitting a peti- to information to which this section
tion shall not constitute a waiver of applies, except that—
any claim the petitioner may have. (1) Notwithstanding § 2.205(i), the
(e) Initial action by EPA office. Section General Counsel or his designee, rather
2.204 applies to information to which than the Regional counsel, shall in all
this section applies, except that— cases make the determinations and
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(1) Unless the EPA office has on file take the actions required by § 2.205;
a written waiver of a petitioner’s (2) In addition to the circumstances
claim, a petitioner shall be regarded as mentioned in § 2.205(f)(1), notice in the
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Environmental Protection Agency § 2.309
treatment.
applies may be disclosed (notwith-
standing the fact that it otherwise [41 FR 36902, Sept. 1, 1976, as amended at 43
might be entitled to confidential treat- FR 40005, Sept. 8, 1978]
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§ 2.310 40 CFR Ch. I (7–1–21 Edition)
§ 2.310 Special rules governing certain poses stated in section 104, if it was
information obtained under the provided pursuant to the terms of a
Comprehensive Environmental Re- contract, grant or other agreement to
sponse, Compensation, and Liabil- perform work pursuant to section 104,
ity Act of 1980, as amended. or if its submission could have been re-
(a) Definitions. For purposes of this quired under section 104, regardless of
section: whether section 104 was cited as au-
(1) Act means the Comprehensive En- thority for any request for the infor-
vironmental Response, Compensation, mation or whether the information was
and Liability Act of 1980, as amended, provided directly to EPA or through
including amendments made by the some third person.
Superfund Amendments and Reauthor- (c) Basic rules which apply without
ization Act of 1986, 42 U.S.C. 9601, et seq. change. Sections 2.201 through 2.207 and
(2) Person has the meaning given it in §§ 2.209 through 2.215 apply without
section 101(21) of the Act, 42 U.S.C. change to information to which this
9601(21). section applies.
(3) Facility has the meaning given it (d) [Reserved]
in section 101(9) of the Act, 42 U.S.C. (e) Substantive criteria for use in con-
9601(9). fidentiality determinations. Section 2.208
(4) Hazardous substance has the mean- applies without change to information
ing given it in section 101(14) of the to which this section applies; however,
Act, 42 U.S.C. 9601(14). no information to which this section
(5) Release has the meaning given it applies is voluntarily submitted infor-
in section 101(22) of the Act, 42 U.S.C. mation.
9601(22). (f) [Reserved]
(6) Proceeding means any rulemaking (g)(1) Under section 104(e)(7)(A) of the
or adjudication conducted by EPA Act (42 U.S.C. 9604(e)(7)(A)) any infor-
under the Act or under regulations mation to which this section applies
which implement the Act (including may be disclosed by EPA because of
the issuance of administrative orders the relevance of the information in a
under section 106 of the Act and cost proceeding under the Act, notwith-
recovery pre-litigation settlement ne- standing the fact that the information
gotiations under sections 107 or 122 of otherwise might be entitled to con-
the Act), any cost recovery litigation fidential treatment under this subpart.
under section 107 of the Act, or any ad- Disclosure of information to which this
ministrative determination made section applies because of its relevance
under section 104 of the Act, but not in- in a proceeding shall be made only in
cluding determinations under this sub- accordance with this paragraph (g).
part. (2) The provisions of § 2.301(g)(2) are
(b) Applicability. This section applies to be used as paragraph (g)(2) of this
only to information provided to or ob- section.
tained by EPA under section 104 of the (3) In connection with any proceeding
Act, 42 U.S.C. 9604, by or from any per- involving a decision by a presiding offi-
son who stores, treats, or disposes of cer after an evidentiary or adjudica-
hazardous wastes; or where necessary tory hearing, except with respect to
to ascertain facts not available at the litigation conducted by a Federal
facility where such hazardous sub- court, information to which this sec-
stances are located, by or from any tion applies which may be entitled to
person who generates, transports, or confidential treatment may be made
otherwise handles or has handled haz- available to the public, or to one or
ardous substances, or by or from any more parties of record to the pro-
person who performs or supports re- ceeding, upon EPA’s initiative, under
moval or remedial actions pursuant to this paragraph (g)(3). An EPA office
section 104(a) of the Act. Information proposing disclosure of information
will be considered to have been pro- under this paragraph (g)(3) shall so no-
vided or obtained under section 104 of tify the presiding officer in writing.
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the Act if it was provided in response Upon receipt of such a notification, the
to a request from EPA or a representa- presiding officer shall notify each af-
tive of EPA made for any of the pur- fected business that disclosure under
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Environmental Protection Agency § 2.310
this paragraph (g)(3) has been proposed, (i) The party of record has satisfac-
and shall afford each such business a torily shown that with respect to a sig-
period for comment found by the pre- nificant matter which is in controversy
siding officer to be reasonable under in the proceeding, the party’s ability to
the circumstances. Information may be participate effectively in the pro-
disclosed under this paragraph (g)(3) ceeding will be significantly impaired
only if, after consideration of any unless the information is disclosed to
timely comments submitted by the him; and
business, the EPA office determines in (ii) Any harm to an affected business
writing that, for reasons directly asso- that would result from the disclosure is
ciated with the conduct of the pro- likely to be outweighed by the benefit
ceeding, the contemplated disclosure to the proceeding and the public inter-
would serve the public interest, and the est that would result from the disclo-
presiding officer determines in writing sure.
that the information is relevant to a The presiding officer may condition
matter in controversy in the pro- disclosure of the information to a
ceeding. The presiding officer may con- party of record on the making of such
dition disclosure of the information to protective arrangements and commit-
a party of record on the making of such ments as he finds to be warranted. Dis-
protective arrangements and commit- closure to one or more parties of
ments as he finds to be warranted. Dis- record, under protective arrangements
closure to one or more parties of or commitments, shall not, of itself, af-
record, under protective arrangements fect the eligibility of information for
or commitments, shall not, of itself, af- confidential treatment under the other
fect the eligibility of information for provisions of this subpart. Any affected
confidential treatment under the other business shall be given at least 5 days
provisions of this subpart. Any affected notice by the presiding officer prior to
business shall be given at least 5 days making the information available to
notice by the presiding officer prior to one or more of the parties of record to
making the information available to the proceeding.
the public or to one or more of the par- (5) In connection with cost recovery
ties of record to the proceeding. pre-litigation settlement negotiations
(4) In connection with any proceeding under sections 107 or 122 of the Act (42
involving a decision by a presiding offi- U.S.C. 9607, 9622), any information to
cer after an evidentiary or adjudica- which this section applies that may be
tory hearing, except with respect to entitled to confidential treatment may
litigation conducted by a Federal be made available to potentially re-
court, information to which this sec- sponsible parties pursuant to a con-
tion applies which may be entitled to tractual agreement to protect the in-
confidential treatment may be made formation.
available to one or more parties of (6) In connection with any cost recov-
record to the proceeding, upon request ery proceeding under section 107 of the
of a party, under this paragraph (g)(4). Act involving a decision by a presiding
A party of record seeking disclosure of officer after an evidentiary or adju-
information shall direct his request to dicatory hearing, any information to
the presiding officer. Upon receipt of which this section applies that may be
such a request, the presiding officer entitled to confidential treatment may
shall notify each affected business that be made available to one or more par-
disclosure under this paragraph (g)(4) ties of record to the proceeding, upon
has been requested, and shall afford EPA’s initiative, under this paragraph
each such business a period for com- (g)(6). Such disclosure must be made
ment found by the presiding officer to pursuant to a stipulation and protec-
be reasonable under the circumstances. tive order signed by all parties to
Information may be disclosed to a whom disclosure is made and by the
party of record under this paragraph presiding officer.
(g)(4) only if, after consideration of any (h) Disclosure to authorized representa-
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timely comments submitted by the tives. (1) Under section 104(e)(7) of the
business, the presiding officer deter- Act (42 U.S.C. 9604(e)(7)), EPA possesses
mines in writing that: authority to disclose to any authorized
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§ 2.311 40 CFR Ch. I (7–1–21 Edition)
representative of the Untied States any (6) Model type has the meaning given
information to which this section ap- it in section 501(11) of the Act, 15 U.S.C.
plies, notwithstanding the fact that 2001(11).
the information might otherwise be en- (b) Applicability. This section applies
titled to confidential treatment under only to information provided to or ob-
this subpart. Such authority may be tained by EPA under Title V, Part A of
exercised only in accordance with para- the Act, 15 U.S.C. 2001 through 2012. In-
graph (h)(2) or (h)(3) of this section. formation will be considered to have
(2) The provisions of § 2.301(h)(2) are been provided or obtained under Title
to be used as paragraph (h)(2) of this V, Part A of the Act if it was provided
section. in response to a request from EPA
(3) The provisions of § 2.301(h)(3) are made for any purpose stated in Title V,
to be used as paragraph (h)(3) of this Part A, or if its submission could have
section. been required under Title V Part A, re-
(4) At the time any information is gardless of whether Title V Part A was
cited as the authority for any request
furnished to a contractor, subcon-
for information or whether the infor-
tractor, or State or local government
mation was provided directly to EPA
under this paragraph (h), the EPA of-
or through some third person.
fice furnishing the information to the
(c) Basic rules which apply without
contractor, subcontractor, or State or
change. Sections 2.201 through 2.207 and
local government agency shall notify
§§ 2.209 through 2.215 apply without
the contractor, subcontractor, or State
change to information to which this
or local government agency that the
section applies.
information may be entitled to con- (d) [Reserved]
fidential treatment and that any know- (e) Substantive criteria for use in con-
ing and willful disclosure of the infor- fidentiality determinations. Section 2.208
mation may subject the contractor, applies without change to information
subcontractor, or State or local gov- to which this section applies, except
ernment agency and its employees to that information this is fuel economy
penalties in section 104(e)(7)(B) of the data is not eligible for confidential
Act (42 U.S.C. 9604(e)(7)(B)). treatment. No information to which
[50 FR 51663, Dec. 18, 1985, as amended at 58 this section applies is voluntarily sub-
FR 462, Jan. 5, 1993] mitted information.
(f) [Reserved]
§ 2.311 Special rules governing certain (g) Disclosure of information relevant to
information obtained under the a proceeding. (1) Under section 505(d)(1)
Motor Vehicle Information and Cost of the Act, any information to which
Savings Act. this section applies may be released by
(a) Definitions. For the purposes of EPA because of the relevance of the in-
this section: formation to a proceeding under Title
(1) Act means the Motor Vehicle In- V, Part A of the Act, notwithstanding
formation and Cost Savings Act, as the fact that the information otherwise
amended, 15 U.S.C. 1901 et seq. might be entitled to confidential treat-
(2) Average fuel economy has the ment under this subpart. Release of in-
meaning given it in section 501(4) of the formation to which this section applies
Act, 15 U.S.C. 2001(4). because of its relevance to a proceeding
(3) Fuel economy has the meaning shall be made only in accordance with
given it in section 501(6) of the Act, 15 this paragraph (g).
U.S.C. 2001(6). (2) The provisions of § 2.301(g)(2) are
(4) Fuel economy data means any to be used as paragraph (g)(2) of this
measurement or calculation of fuel section.
economy for any model type and aver- (3) The provisions of § 2.301(g)(3) are
age fuel economy of a manufacturer to be used as paragraph (g)(3) of this
under section 503(d) of the Act, 15 section.
U.S.C. 2003(d). (4) The provisions of § 2.301(g)(4) are
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Environmental Protection Agency § 2.403
Subpart C—Testimony by Employ- own views and does not necessarily rep-
ees and Production of Docu- resent the official position of EPA).
(c) The purpose of this subpart is to
ments in Civil Legal Pro- ensure that employees’ official time is
ceedings Where the United used only for official purposes, to
States Is Not a Party maintain the impartiality of EPA
among private litigants, to ensure that
AUTHORITY: 5 U.S.C. 301; Reorganization public funds are not used for private
Plan No. 3 of 1970, 5 U.S.C. App.; 33 U.S.C. purposes and to establish procedures
361(a); 42 U.S.C. 300j–9; 42 U.S.C. 6911a, 42 for approving testimony or production
U.S.C. 7601(a). of documents when clearly in the inter-
SOURCE: 50 FR 32387, Aug. 9, 1985, unless ests of EPA.
otherwise noted.
§ 2.402 Policy on presentation of testi-
§ 2.401 Scope and purpose. mony and production of documents.
This subpart sets forth procedures to (a) With the approval of the cog-
be followed when an EPA employee is nizant Assistant Administrator, Office
requested or subpoenaed to provide tes- Director, Staff Office Director or Re-
timony concerning information ac- gional Administrator or his designee,
quired in the course of performing offi- EPA employees (as defined in 40 CFR
cial duties or because of the employee’s 3.102 (a) and (b)) may testify at the re-
official status. (In such cases, employ- quest of another Federal agency, or,
ees must state for the record that their where it is in the interests of EPA, at
testimony does not necessarily rep- the request of a State or local govern-
resent the official position of EPA. If ment or State legislative committee.
they are called to state the official po- (b) Except as permitted by paragraph
sition of EPA, they should ascertain (a) of this section, no EPA employee
that position before appearing.) These may provide testimony or produce doc-
procedures also apply to subpoenas uments in any proceeding to which this
duces tecum for any document in the subpart applies concerning information
possession of EPA and to requests for acquired in the course of performing
certification of copies of documents. official duties or because of the em-
(a) These procedures apply to: ployee’s official relationship with EPA,
(1) State court proceedings (including unless authorized by the General Coun-
grand jury proceedings); sel or his designee under §§ 2.403
through 2.406.
(2) Federal civil proceedings, except
where the United States, EPA or an- § 2.403 Procedures when voluntary tes-
other Federal agency is a party; and timony is requested.
(3) State and local legislative and ad- A request for testimony by an EPA
ministrative proceedings. employee under § 2.402(b) must be in
(b) These procedures do not apply: writing and must state the nature of
(1) To matters which are not related the requested testimony and the rea-
to EPA; sons why the testimony would be in the
(2) To Congressional requests or sub- interests of EPA. Such requests are im-
poenas for testimony or documents; mediately sent to the General Counsel
(3) Where employees provide expert or his designee (or, in the case of em-
witness services as approved outside ployees in the Office of Inspector Gen-
activities in accordance with 40 CFR eral, the Inspector General or his des-
part 3, subpart E (in such cases, em- ignee) with the recommendations of
ployees must state for the record that the employee’s supervisors. The Gen-
the testimony represents their own eral Counsel or his designee, in con-
views and does not necessarily rep- sultation with the appropriate Assist-
resent the official position of EPA); ant Administrator, Regional Adminis-
(4) Where employees voluntarily tes- trator, or Staff Office Director (or, in
tify as private citizens with respect to the case of employees in the Office of
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environmental matters (in such cases, Inspector General, the Inspector Gen-
employees must state for the record eral or his designee), determines
that the testimony represents their whether compliance with the request
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§ 2.404 40 CFR Ch. I (7–1–21 Edition)
would clearly be in the interests of that the subpoena was not validly
EPA and responds as soon as prac- issued or served or that the subpoena
ticable. has been withdrawn) and respectfully
refuse to produce the subpoenaed mate-
§ 2.404 Procedures when an employee rials. However, where a subpoena duces
is subpoenaed. tecum is essentially a written request
(a) Copies of subpoenas must imme- for documents, the requested docu-
diately be sent to the General Counsel ments will be provided or denied in ac-
or his designee with the recommenda- cordance with subparts A and B of this
tions of the employee’s supervisors. part where approval to respond to the
The General Counsel or his designee, in subpoena has not been granted.
consultation with the appropriate As-
sistant Administrator, Regional Ad- § 2.406 Requests for authenticated cop-
ministrator or Staff Office Director, ies of EPA documents.
determines whether compliance with Requests for authenticated copies of
the subpoena would clearly be in the EPA documents for purposes of admis-
interests of EPA and responds as soon sibility under 28 U.S.C. 1733 and Rule 44
as practicable. of the Federal Rules of Civil Procedure
(b) If the General Counsel or his des- will be granted for documents which
ignee denies approval to comply with would otherwise be released pursuant
the subpoena, or if he has not acted by to subpart A. For purposes of Rule 44
the return date, the employee must ap- the person having legal custody of the
pear at the stated time and place (un- record is the cognizant Assistant Ad-
less advised by the General Counsel or ministrator, Regional Administrator,
his designee that the subpoena was not Staff Office Director or Office Director
validly issued or served or that the or his designee. The advice of the Of-
subpoena has been withdrawn), produce fice of General Counsel should be ob-
a copy of these regulations and respect- tained concerning the proper form of
fully refuse to provide any testimony authentication.
or produce any documents. United
States ex rel. Touhy v. Ragen, 340 U.S. PART 3—CROSS-MEDIA
462 (1951). ELECTRONIC REPORTING
(c) Where employees in the Office of
Inspector General are subpoenaed, the Subpart A—General Provisions
Inspector General or his designee
Sec.
makes the determination under para- 3.1 Who does this part apply to?
graphs (a) and (b) of this section in 3.2 How does this part provide for electronic
consultation with the General Counsel. reporting?
(d) The General Counsel will request 3.3 What definitions are applicable to this
the assistance of the Department of part?
Justice or a U.S. Attorney where nec- 3.4 How does this part affect enforcement
essary to represent the interests of the and compliance provisions of Title 40?
Agency and the employee. Subpart B—Electronic Reporting to EPA
§ 2.405 Subpoenas duces tecum. 3.10 What are the requirements for elec-
Subpoenas duces tecum for documents tronic reporting to EPA?
or other materials are treated the same 3.20 How will EPA provide notice of changes
to the Central Data Exchange?
as subpoenas for testimony. Unless the
General Counsel or his designee, in Subpart C [Reserved]
consultation with the appropriate As-
sistant Administrator, Regional Ad- Subpart D—Electronic Reporting under
ministrator or Staff Office Director EPA-Authorized State, Tribe, and Local
(or, as to employees in the Office of In- Programs
spector General, the Inspector General)
3.1000 How does a state, tribe, or local gov-
determines that compliance with the
ernment revise or modify its authorized
subpoena is clearly in the interests of program to allow electronic reporting?
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EPA, the employee must appear at the 3.2000 What are the requirements author-
stated time and place (unless advised ized state, tribe, and local programs’ re-
by the General Counsel or his designee porting systems must meet?
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Environmental Protection Agency § 3.3
APPENDIX 1 TO PART 3—PRIORITY REPORTS lieu of a paper document, provided
AUTHORITY: 7 U.S.C. 136 to 136y; 15 U.S.C. that:
2601 to 2692; 33 U.S.C. 1251 to 1387; 33 U.S.C. (1) He or she satisfies the require-
1401 to 1445; 33 U.S.C. 2701 to 2761; 42 U.S.C. ments of § 3.10; and
300f to 300j–26; 42 U.S.C. 4852d; 42 U.S.C. 6901– (2) EPA has first published a notice
6992k; 42 U.S.C. 7401 to 7671q; 42 U.S.C. 9601 to
9675; 42 U.S.C. 11001 to 11050; 15 U.S.C. 7001; 44
in the FEDERAL REGISTER announcing
U.S.C. 3504 to 3506. that EPA is prepared to receive, in
electronic form, documents required or
SOURCE: 70 FR 59879, Oct. 13, 2005, unless
otherwise noted.
permitted by the identified part or sub-
part of Title 40.
(b) Electronic reporting under an EPA-
Subpart A—General Provisions authorized state, tribe, or local program.
§ 3.1 Who does this part apply to? (1) An authorized program may allow
any document submission requirement
(a) This part applies to: under that program to be satisfied with
(1) Persons who submit reports or an electronic document provided that
other documents to EPA to satisfy re-
the state, tribe, or local government
quirements under Title 40 of the Code
seeks and obtains revision or modifica-
of Federal Regulations (CFR); and
tion of that program in accordance
(2) States, tribes, and local govern-
ments administering or seeking to ad- with § 3.1000 and also meets the require-
minister authorized programs under ments of § 3.2000 for such electronic re-
Title 40 of the CFR. porting.
(b) This part does not apply to: (2) A state, tribe, or local govern-
(1) Documents submitted via fac- ment that is applying for initial dele-
simile in satisfaction of reporting re- gation, authorization, or approval to
quirements as permitted under other administer a federal program or a pro-
parts of Title 40 or under authorized gram in lieu of the federal program,
programs; and that will allow document submis-
(2) Electronic documents submitted sion requirements under the program
via magnetic or optical media such as to be satisfied with an electronic docu-
diskette, compact disc, digital video ment, must use the procedures for ob-
disc, or tape in satisfaction of report- taining delegation, authorization, or
ing requirements, as permitted under approval under the relevant part of
other parts of Title 40 or under author- Title 40 and may not use the proce-
ized programs; or dures set forth in § 3.1000; but the appli-
(3) Documents and information sub- cation must contain the information
mitted under grants, cooperative required by § 3.1000(b)(1) and the state,
agreements, or financial assistant reg- tribe, or local government must meet
ulations contained in Title 40. the requirements of § 3.2000.
(c) This part does not apply to any (c) Limitations. This part does not re-
data transfers between EPA and states, quire submission of electronic docu-
tribes, or local governments as a part
ments in lieu of paper. This part con-
of their authorized programs or as a
fers no right or privilege to submit
part of administrative arrangements
between states, tribes, or local govern- data electronically and does not obli-
ments and EPA to share data. gate EPA, states, tribes, or local gov-
ernments to accept electronic docu-
[70 FR 59879, Oct. 13, 2005, as amended at 74 ments.
FR 59106, Nov. 17, 2009]
§ 3.3 What definitions are applicable to
§ 3.2 How does this part provide for this part?
electronic reporting?
The definitions set forth in this sec-
(a) Electronic reporting to EPA. Except
tion apply when used in this part.
as provided in § 3.1(b), any person who
is required under Title 40 to create and Acknowledgment means a confirma-
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§ 3.3 40 CFR Ch. I (7–1–21 Edition)
Agency means the EPA or a state, lowing: The person’s employer or em-
tribe, or local government that admin- ployer’s corporate parent, subsidiary,
isters or seeks to administer an au- or affiliate; the person’s contracting
thorized program. agent; member of the person’s house-
Agreement collection certification hold; or relative with whom the person
means a signed statement by which a has a personal relationship.
local registration authority certifies Electronic document means any infor-
that a subscriber agreement has been mation in digital form that is conveyed
received from a registrant; the agree- to an agency or third-party, where
ment has been stored in a manner that ‘‘information’’ may include data, text,
prevents unauthorized access to these sounds, codes, computer programs,
agreements by anyone other than the software, or databases. ‘‘Data,’’ in this
local registration authority; and the context, refers to a delimited set of
local registration authority has no data elements, each of which consists
basis to believe that any of the col- of a content or value together with an
lected agreements have been tampered understanding of what the content or
with or prematurely destroyed. value means; where the electronic doc-
Authorized program means a Federal ument includes data, this under-
program that EPA has delegated, au- standing of what the data element con-
thorized, or approved a state, tribe, or tent or value means must be explicitly
local government to administer, or a included in the electronic document
program that EPA has delegated, au- itself or else be readily available to the
thorized, or approved a state, tribe or electronic document recipient.
local government to administer in lieu Electronic document receiving system
of a Federal program, under other pro- means any set of apparatus, proce-
visions of Title 40 and such delegation, dures, software, records, or documenta-
authorization, or approval has not been tion used to receive electronic docu-
withdrawn or expired.
ments.
Central Data Exchange means EPA’s
Electronic signature means any infor-
centralized electronic document receiv-
mation in digital form that is included
ing system, or its successors, including
associated instructions for submitting in or logically associated with an elec-
electronic documents. tronic document for the purpose of ex-
Chief Information Officer means the pressing the same meaning and inten-
EPA official assigned the functions de- tion as would a handwritten signature
scribed in section 5125 of the Clinger if affixed to an equivalent paper docu-
Cohen Act (Pub. L. 104–106). ment with the same reference to the
Copy of record means a true and cor- same content. The electronic document
rect copy of an electronic document re- bears or has on it an electronic signa-
ceived by an electronic document re- ture where it includes or has logically
ceiving system, which copy can be associated with it such information.
viewed in a human-readable format Electronic signature agreement means
that clearly and accurately associates an agreement signed by an individual
all the information provided in the with respect to an electronic signature
electronic document with descriptions device that the individual will use to
or labeling of the information. A copy create his or her electronic signatures
of record includes: requiring such individual to protect
(1) All electronic signatures con- the electronic signature device from
tained in or logically associated with compromise; to promptly report to the
that document; agency or agencies relying on the elec-
(2) The date and time of receipt; and tronic signatures created any evidence
(3) Any other information used to discovered that the device has been
record the meaning of the document or compromised; and to be held as legally
the circumstances of its receipt. bound, obligated, or responsible by the
Disinterested individual means an indi- electronic signatures created as by a
vidual who is not connected with the handwritten signature.
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Environmental Protection Agency § 3.4
the device is used to create an individ- whose identity has been established by
ual’s electronic signature, then the notarized affidavit, and who is author-
code or mechanism must be unique to ized in writing by a regulated entity to
that individual at the time the signa- issue agreement collection certifi-
ture is created and he or she must be cations on its behalf.
uniquely entitled to use it. The device Priority reports means the reports list-
is compromised if the code or mecha- ed in Appendix 1 to part 3.
nism is available for use by any other Subscriber agreement means an elec-
person. tronic signature agreement signed by
EPA means the United States Envi- an individual with a handwritten sig-
ronmental Protection Agency. nature. This agreement must be stored
Existing electronic document receiving until five years after the associated
system means an electronic document electronic signature device has been
receiving system that is being used to deactivated.
receive electronic documents in lieu of Transmit means to successfully and
paper to satisfy requirements under an accurately convey an electronic docu-
authorized program on October 13, 2005 ment so that it is received by the in-
or the system, if not in use, has been tended recipient in a format that can
substantially developed on or before be processed by the electronic docu-
that date as evidenced by the establish- ment receiving system.
ment of system services or specifica- Valid electronic signature means an
tions by contract or other binding electronic signature on an electronic
agreement. document that has been created with
Federal program means any program an electronic signature device that the
administered by EPA under any other identified signatory is uniquely enti-
provision of Title 40. tled to use for signing that document,
Federal reporting requirement means a where this device has not been com-
requirement to report information di- promised, and where the signatory is
rectly to EPA under any other provi- an individual who is authorized to sign
sion of Title 40. the document by virtue of his or her
Handwritten signature means the legal status and/or his or her relation-
scripted name or legal mark of an indi- ship to the entity on whose behalf the
vidual, handwritten by that individual signature is executed.
with a marking-or writing-instrument
such as a pen or stylus and executed or § 3.4 How does this part affect enforce-
adopted with the present intention to ment and compliance provisions of
authenticate a writing in a permanent Title 40?
form, where ‘‘a writing’’ means any in- (a) A person is subject to any applica-
tentional recording of words in a visual ble federal civil, criminal, or other pen-
form, whether in the form of hand- alties and remedies for failure to com-
writing, printing, typewriting, or any ply with a federal reporting require-
other tangible form. The physical in- ment if the person submits an elec-
stance of the scripted name or mark so tronic document to EPA under this
created constitutes the handwritten part that fails to comply with the pro-
signature. The scripted name or legal visions of § 3.10.
mark, while conventionally applied to (b) A person is subject to any applica-
paper, may also be applied to other ble federal civil, criminal, or other pen-
media. alties or remedies for failure to comply
Information or objects of independent with a State, tribe, or local reporting
origin means data or items that origi- requirement if the person submits an
nate from a disinterested individual or electronic document to a State, tribe,
are forensic evidence of a unique, im- or local government under an author-
mutable trait which is (and may at any ized program and fails to comply with
time be) attributed to the individual in the applicable provisions for electronic
whose name the device is issued. reporting.
Local registration authority means an (c) Where an electronic document
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§ 3.10 40 CFR Ch. I (7–1–21 Edition)
electronic signature legally binds, obli- plans to change Central Data Exchange
gates, and makes the signatory respon- hardware or software in ways that
sible, to the same extent as the sig- would affect the transmission process,
natory’s handwritten signature would EPA will provide notice as follows:
on a paper document submitted to sat- (1) Significant changes to CDX: Where
isfy the same federal or authorized pro- the equipment, software, or services
gram reporting requirement. needed to transmit electronic docu-
(d) Proof that a particular signature ments to the Central Data Exchange
device was used to create an electronic would be changed significantly, EPA
signature will suffice to establish that will provide public notice and seek
the individual uniquely entitled to use comment on the change and the pro-
the device did so with the intent to posed implementation schedule
sign the electronic document and give through the FEDERAL REGISTER;
it effect. (2) Other changes to CDX: EPA will
(e) Nothing in this part limits the use provide notice of other changes to Cen-
of electronic documents or information tral Data Exchange users at least sixty
derived from electronic documents as (60) days in advance of implementa-
evidence in enforcement or other pro- tion.
ceedings. (3) De minimis or transparent changes
to CDX: For de minimis or transparent
Subpart B—Electronic Reporting to changes that have minimal or no im-
pact on the transmission process, EPA
EPA may provide notice if appropriate on a
§ 3.10 What are the requirements for case-by-case basis.
electronic reporting to EPA? (b) Emergency changes to CDX: Any
change which EPA’s Chief Information
(a) A person may use an electronic Officer or his or her designee deter-
document to satisfy a federal reporting mines is needed to ensure the security
requirement or otherwise substitute and integrity of the Central Data Ex-
for a paper document or submission change is exempt from the provisions
permitted or required under other pro- of paragraph (a) of this section. How-
visions of Title 40 only if: ever, to the extent consistent with en-
(1) The person transmits the elec-
suring the security and integrity of the
tronic document to EPA’s Central Data
system, EPA will provide notice for
Exchange, or to another EPA elec-
any change other than de minimis or
tronic document receiving system that
transparent changes to the Central
the Administrator may designate for
Data Exchange.
the receipt of specified submissions,
complying with the system’s require-
ments for submission; and Subpart C [Reserved]
(2) The electronic document bears all
valid electronic signatures that are re- Subpart D—Electronic Reporting
quired under paragraph (b) of this sec- Under EPA-Authorized State,
tion. Tribe, and Local Programs
(b) An electronic document must
bear the valid electronic signature of a § 3.1000 How does a state, tribe, or
signatory if that signatory would be re- local government revise or modify
quired under Title 40 to sign the paper its authorized program to allow
electronic reporting?
document for which the electronic doc-
ument substitutes, unless EPA an- (a) A state, tribe, or local govern-
nounces special provisions to accept a ment that receives or plans to begin re-
handwritten signature on a separate ceiving electronic documents in lieu of
paper submission and the signatory paper documents to satisfy require-
provides that handwritten signature. ments under an authorized program
must revise or modify such authorized
§ 3.20 How will EPA provide notice of program to ensure that it meets the re-
changes to the Central Data Ex- quirements of this part.
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Environmental Protection Agency § 3.1000
the requirements of this part, a state, tion for program revision or modifica-
tribe, or local government must submit tion respecting their receipt of elec-
an application that complies with para- tronic documents. Such applications
graph (b)(1) of this section and must must comply with paragraph (a)(1) of
follow either the applicable procedures this section.
for program revision or modification in (5) Restrictions on the use of procedures
other parts of Title 40, or, at the appli- in this section: The procedures provided
cant’s option, the procedures provided in paragraphs (b) through (e) of this
in paragraphs (b) through (e) of this section may only be used for revising
section. or modifying an authorized program to
(2) Programs planning to receive elec- provide for electronic reporting and for
tronic documents under an authorized subsequent revisions or modifications
program: A state, tribe, or local govern-
to the electronic reporting elements of
ment that does not have an existing
an authorized program as provided
electronic document receiving system
under paragraph (a)(4) of this section.
for an authorized program must receive
EPA approval of revisions or modifica- (b)(1) To obtain EPA approval of pro-
tions to such program in compliance gram revisions or modifications using
with paragraph (a)(1) of this section be- procedures provided under this section,
fore the program may receive elec- a state, tribe, or local government
tronic documents in lieu of paper docu- must submit an application to the Ad-
ments to satisfy program require- ministrator that includes the following
ments. elements:
(3) Programs already receiving elec- (i) A certification that the state,
tronic documents under an authorized tribe, or local government has suffi-
program: A state, tribe, or local govern- cient legal authority provided by law-
ment with an existing electronic docu- fully enacted or promulgated statutes
ment receiving system for an author- or regulations that are in full force and
ized program must submit an applica- effect on the date of the certification
tion to revise or modify such author- to implement the electronic reporting
ized program in compliance with para- component of its authorized programs
graph (a)(1) of this section no later covered by the application in conform-
than January 13, 2010. On a case-by- ance with § 3.2000 and to enforce the af-
case basis, this deadline may be ex- fected programs using electronic docu-
tended by the Administrator, upon re- ments collected under these programs,
quest of the state, tribe, or local gov- together with copies of the relevant
ernment, where the Administrator de- statutes and regulations, signed by the
termines that the state, tribe, or local State Attorney General or his or her
government needs additional time to designee, or, in the case of an author-
make legislative or regulatory changes ized tribe or local government pro-
in order to meet the requirements of
gram, by the chief executive or admin-
this part.
istrative official or officer of the gov-
(4) Programs with approved electronic
ernmental entity, or his or her des-
document receiving systems: An author-
ized program that has EPA’s approval ignee;
to accept electronic documents in lieu (ii) A listing of all the state, tribe, or
of paper documents must keep EPA ap- local government electronic document
prised of those changes to laws, poli- receiving systems to accept the elec-
cies, or the electronic document receiv- tronic documents being addressed by
ing systems that have the potential to the program revisions or modifications
affect program compliance with § 3.2000. that are covered by the application, to-
Where the Administrator determines gether with a description for each such
that such changes require EPA review system that specifies how the system
and approval, EPA may request that meets the applicable requirements in
the state, tribe, or local government § 3.2000 with respect to those electronic
submit an application for program re- documents;
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§ 3.1000 40 CFR Ch. I (7–1–21 Edition)
section that have the potential to af- the Administrator need not take the
fect the program’s continued conform- same action with respect to the re-
ance with § 3.2000; and quested revisions or modifications for
(iv) Other information that the Ad- each such program.
ministrator may request to fully evalu- (3) When an application under para-
ate the application. graph (b) of this section requests revi-
(2) A state, tribe, or local govern- sion or modification of an authorized
ment that revises or modifies more public water system program under
than one authorized program for re- part 142 of this title, the Administrator
ceipt of electronic documents in lieu of will, in accordance with the procedures
paper documents may submit a consoli- in paragraph (f) of this section, provide
dated application under this section an opportunity for a public hearing be-
covering more than one authorized pro- fore a final determination pursuant to
gram, provided the consolidated appli- paragraph (c)(1) of this section with re-
cation complies with paragraph (b)(1) spect to that component of the applica-
of this section for each authorized pro- tion.
gram. (4) Except as provided under para-
(3)(i) Within 75 calendar days of re- graph (c)(4)(i) and (ii) of this section, if
ceiving an application for program re- the Administrator does not take any
vision or modification submitted under action under paragraph (c)(1) of this
paragraph (b)(1) of this section, the Ad- section on a specific request for revi-
ministrator will respond with a letter sion or modification of a specific au-
that either notifies the state, tribe, or thorized program addressed by an ap-
local government that the application plication submitted under paragraph
is complete or identifies deficiencies in (b) of this section within 180 calendar
the application that render the applica- days of notifying the state, tribe, or
tion incomplete. The state, tribe, or local government under paragraph
local government receiving a notice of (b)(3) of this section that the applica-
deficiencies may amend the application tion is complete, the specific request
and resubmit it. Within 30 calendar for program revision or modification
days of receiving the amended applica- for the specific authorized program is
tion, the Administrator will respond considered automatically approved by
with a letter that either notifies the EPA at the end of the 180 calendar days
applicant that the amended application unless the review period is extended at
is complete or identifies remaining de- the request of the state, tribe, or local
ficiencies that render the application government submitting the applica-
incomplete. tion.
(ii) If a state, tribe, or local govern- (i) Where an opportunity for public
ment receiving notice of deficiencies hearing is required under paragraph
under paragraph (b)(3)(i) of this section (c)(3) of this section, the Administra-
does not remedy the deficiencies and tor’s action on the requested revision
resubmit the subject application with- or modification will be in accordance
in a reasonable period of time, the Ad- with paragraph (f) of this section.
ministrator may act on the incomplete (ii) Where a requested revision or
application under paragraph (c) of this modification addressed by an applica-
section. tion submitted under paragraph (b) of
(c)(1) The Administrator will act on this section is to an authorized pro-
an application by approving or denying gram with an existing electronic docu-
the state’s, tribe’s or local govern- ment receiving system, and where noti-
ment’s request for program revision or fication under paragraph (b)(3) of this
modification. section that the application is com-
(2) Where a consolidated application plete is executed after October 13, 2007,
submitted under paragraph (b)(2) of if the Administrator does not take any
this section addresses revisions or action under paragraph (c)(1) of this
modifications to more than one author- section on the specific request for revi-
ized program, the Administrator may sion or modification within 360 cal-
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approve or deny the request for revi- endar days of such notification, the
sion or modification of each authorized specific request is considered auto-
program in the application separately; matically approved by EPA at the end
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Environmental Protection Agency § 3.2000
of the 360 calendar days unless the re- portunity for hearing in the FEDERAL
view period is extended at the request REGISTER. The Administrator will give
of the state, tribe, or local government notice in the FEDERAL REGISTER of any
submitting the application. hearing to be held pursuant to a re-
(d) Except where an opportunity for quest submitted by an interested per-
public hearing is required under para- son or on the Administrator’s own mo-
graph (c)(3) of this section, EPA’s ap- tion. Notice of hearing will be given
proval of a program revision or modi- not less than 15 days prior to the time
fication under this section will be ef- scheduled for the hearing;
fective upon publication of a notice of (3) The hearing will be conducted by
EPA’s approval of the program revision a designated hearing officer in an in-
or modification in the FEDERAL REG- formal, orderly, and expeditious man-
ISTER. EPA will publish such a notice ner. The hearing officer will have au-
promptly after approving a program re- thority to take such action as may be
vision or modification under paragraph necessary to assure the fair and effi-
(c)(1) of this section or after an EPA cient conduct of the hearing; and
approval occurs automatically under (4) After reviewing the record of the
paragraph (c)(4) of this section. hearing, the Administrator will issue
(e) If a state, tribe, or local govern- an order either affirming the deter-
ment submits material to amend its mination the Administrator made
application under paragraph (b)(1) of under paragraph (c)(1) of this section or
this section after the date that the Ad- rescinding such determination and will
ministrator sends notification under promptly publish a notice of the order
paragraph (b)(3)(i) of this section that in the FEDERAL REGISTER. If the order
the application is complete, this new is to approve the program revision or
submission will constitute withdrawal modification, EPA’s approval will be
of the pending application and submis- effective upon publication of the notice
sion of a new, amended application for in the FEDERAL REGISTER. If no timely
program revision or modification under request for a hearing is received and
paragraph (b)(1) of this section, and the the Administrator does not determine
180-day time period in paragraph (c)(4) to hold a hearing on the Administra-
of this section or the 360-day time pe- tor’s own motion, the Administrator’s
riod in paragraph (c)(4)(ii) of this sec- determination made under paragraph
tion will begin again only when the Ad- (c)(1) of this section will be effective 30
ministrator makes a new determina- days after notice is published pursuant
tion and notifies the state, tribe, or to paragraph (f)(1) of this section.
local government under paragraph [70 FR 59879, Oct. 13, 2005, as amended at 72
(b)(3)(i) of this section that the amend- FR 43169, Aug. 3, 2007; 73 FR 78994, Dec. 24,
ed application is complete. 2008]
(f) For an application under this sec-
tion that requests revision or modifica- § 3.2000 What are the requirements au-
tion of an authorized public water sys- thorized state, tribe, and local pro-
tem program under part 142 of this grams’ reporting systems must
chapter: meet?
(1) The Administrator will publish (a) Authorized programs that receive
notice of the Administrator’s prelimi- electronic documents in lieu of paper
nary determination under paragraph to satisfy requirements under such pro-
(c)(1) of this section in the FEDERAL grams must:
REGISTER, stating the reasons for the (1) Use an acceptable electronic docu-
determination and informing inter- ment receiving system as specified
ested persons that they may request a under paragraphs (b) and (c) of this sec-
public hearing on the Administrator’s tion; and
determination. Frivolous or insubstan- (2) Require that any electronic docu-
tial requests for a hearing may be de- ment must bear the valid electronic
nied by the Administrator; signature of a signatory if that signa-
(2) Requests for a hearing submitted tory would be required under the au-
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under this section must be submitted thorized program to sign the paper doc-
to the Administrator within 30 days ument for which the electronic docu-
after publication of the notice of op- ment substitutes, unless the program
75
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§ 3.2000 40 CFR Ch. I (7–1–21 Edition)
(iv) Each signatory had the oppor- paper documents must ensure that:
tunity, at the time of signing, to re- (1) A person is subject to any appro-
view the content or meaning of the re- priate civil, criminal penalties or other
76
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Environmental Protection Agency Pt. 3, App. 1
remedies under state, tribe, or local (3) Proof that a particular electronic
law for failure to comply with a report- signature device was used to create an
ing requirement if the person fails to electronic signature that is included in
comply with the applicable provisions or logically associated with an elec-
for electronic reporting. tronic document submitted to satisfy a
(2) Where an electronic document state, tribe, or local reporting require-
submitted to satisfy a state, tribe, or ment will suffice to establish that the
local reporting requirement bears an individual uniquely entitled to use the
electronic signature, the electronic sig- device at the time of signature did so
with the intent to sign the electronic
nature legally binds or obligates the
document and give it effect.
signatory, or makes the signatory re-
(4) Nothing in the authorized pro-
sponsible, to the same extent as the
gram limits the use of electronic docu-
signatory’s handwritten signature on a ments or information derived from
paper document submitted to satisfy electronic documents as evidence in
the same reporting requirement. enforcement proceedings.
Required Reports
State Implementation Plan ....... Emissions data reports for mobile sources .............................. 51.60(c).
Excess Emissions and Moni- Excess emissions and monitoring performance report detail- 60.7(c), 60.7(d).
toring Performance Report ing the magnitude of excess emissions, and provides the
Compliance Notification Re- date, time, and system status at the time of the excess
port. emission.
New Source Performance Semi-annual reports (quarterly, if report is approved for elec- 60.49a(e) & (j) & (v),
Standards Reporting Re- tronic submission by the permitting authority) on sulfur di- 60.49b(v).
quirements. oxide, nitrous oxides and particulate matter emission (in-
cludes reporting requirements in Subparts A through
DDDD).
Semi-annual Operations and Semi-annual report provides information on a company’s ex- 60.107(c), 60.107(d).
Corrective Action Reports. ceedance of its sulfur dioxide emission rate, sulfur content
of the fresh feed, and the average percent reduction and
average concentration of sulfur dioxide. When emissions
data is unavailable, a signed statement is required which
documents the changes, if any, made to the emissions
control system that would impact the company’s compli-
ance with emission limits.
National Emission Standards Include such reports as: Annual compliance, calculation, ini- 61.11, 61.24(a)(3) & (a)(8),
for Hazardous Air Pollutants tial startup, compliance status, certifications of compliance, 61.70(c)(1) & (c)(2)(v) &
Reporting Requirements. waivers from compliance certifications, quarterly inspection (c)(3) & (c)(4)(iv), 61.94(a) &
certifications, operations, and operations and process (b)(9), 61.104(a) & (a)(1)(x)
change. & (a)(1)(xi) & (a)(1)(xvi),
61.138(e) & (f), 61.165(d)(2)
& (d)(3) & (d)(4) & (f)(1) &
(f)(2) &(f)(3), 61.177(a)(2) &
(c)(1) & (c)(2) & (c)(3) &
(e)(1) & (e)(3), 61.186(b)(1)
& (b)(2) & (b)(3) & (c)(1) &
(f)(1), 61.247(a)(1) & (a)(4)
& (a)(5)(v) & (b)(5) & (d),
61.254(a)(4), 61.275(a) &
(b) & (c), 61.305(f) & (i),
61.357(a) & (b) & (c) & (d),
63.9(h).
Hazardous Air Pollutants Com- Reports containing results from performance test, opacity 63.10(d), 63.10(e)(1),
pliance Report. tests, and visible emissions tests. Progress reports; peri- 63.10(e)(3).
odic and immediate startup, shutdown, and malfunction re-
ports; results from continuous monitoring system perform-
ance evaluations; excess emissions and continuous moni-
toring system performance report; or summary report.
Notifications and Reports ......... Reports that document a facility’s initial compliance status, 65.5(d), 65.5(e).
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Pt. 3, App. 1 40 CFR Ch. I (7–1–21 Edition)
Continuous Emissions Moni- Quarterly emissions monitoring reports and opacity reports 75.64, 75.65.
toring. which document a facility’s excess emission.
Notice of Fuel or Fuel Additive Registration of new fuels and additives, and the submission 79.10, 79.11, 79.20, 79.21,
Registration and Health Ef- and certification of health effect data. 79.51.
fects Testing.
Manufacture In-Use and Prod- Reports that document the emissions testing results gen- 86.1845, 86.1846, 86.1847,
uct Line Emissions Testing. erated from the in-use testing program for new and in-use 90.113, 90.1205, 90.704,
highway vehicle ignition engines; non-road spark-ignition 91.805, 91.504, 92.607,
engines; marine spark-ignition engines; and locomotives 92.508, 92.509.
and locomotive engines.
Industrial and Publicly Owned Discharge monitoring reports for all individual permittees—in- 122.41(l)(4)(i), 403.12(b) & (d)
Treatment Works Reports. cluding baseline reports, pretreatment standards report, & (e) & (h).
periodic compliance reports, and reports made by signifi-
cant industrial users.
State Implementation Plan ....... Owners report emissions data from stationary sources ........... 51.211.
Report For Initial Performance Report that provides the initial performance test results, site- 60.2200 (initial performance
Test. specific operating limits, and, if installed, information on the tests).
bag leak detection device used by the facility.
Emissions Control Report ........ Report submitted by new sources within 90 days of set-up 61.153(a)(1), 61.153(a)(4)(i),
which describes emission control equipment used, proc- 61.153(a)(5)(ii).
esses which generate asbestos-containing waste material,
and disposal information.
State Operating Permits—Per- Monitoring and deviation reports under the State Operating 70.6(a)(3)(iii)(A),
mit Content. Permit. 70.6(a)(3)(iii)(B).
Title V Permits—Permit Con- Monitoring and deviation reports under the Federal Operating 71.6(a)(3)(iii).
tent. Permit.
Annual Export Report ............... Annual report summarizing the amount and type of haz- 262.56(a).
ardous waste exported.
Exceptions Reports .................. Reports submitted by a generator when the generator has 262.42, 262.55.
not received confirmation from the Treatment, Storage, and
Disposal Facility (TSDF) that it received the generator’s
waste and when hazardous waste shipment was received
by the TSDF. For exports, reports submitted when the gen-
erator has not received a copy of the manifest from the
transporter with departure date and place of export indi-
cated; and confirmation from the consignee that the haz-
ardous waste was received or when the hazardous waste
is returned to the U.S.
Contingency Plan Implementa- Follow-up reports made to the Agency for all incidents noted 264.56(j), 265.56(j).
tion Reports. in the operating record which required the implementation
of a facility’s contingency plan.
Significant Manifest Discrep- Report filed by Treatment, Storage, and Disposal Facilities 264.72(b), 265.72(b).
ancy Report. (TSDF) within 15 days of receiving wastes, when the TSDF
is unable to resolve manifest discrepancies with the gener-
ator.
Unmanifested Waste Report .... Report that documents hazardous waste received by a Treat- 264.76, 265.76.
ment, Storage, and Disposal Facility without an accom-
panying manifest.
Noncompliance Report ............. An owner/operator submitted report which documents haz- 264.1090.
ardous waste that was placed in hazardous waste manage-
ment units in noncompliance with 40 CFR sections
264.1082(c)(1) and (c)(2); 264.1084(b); 264.1035(c)(4); or
264.1033(d).
Notification—Low Level Mixed One-time notification concerning transportation and disposal 266.345.
Waste. of conditionally exempted waste.
Notification—Land Disposal One-time notification and certification that characteristic 268.9(d).
Restrictions. waste is no longer hazardous.
Underground Storage Tank No- Underground Storage Tank system notifications concerning 280.22.
tification. design, construction, and installation. As well as when sys-
tems are being placed in operation. (EPA Form 7530–1 or
state version.).
Free Product Removal Report Report written and submitted within 45 days after confirming 280.64, 280.65.
and Subsequent Investiga- a free product release, including information on the release
tion Report. and recovery methods used for the free product, and when
test indicate presence of free product, response measures.
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Environmental Protection Agency Pt. 3, App. 1
Permit Applications 1
State Implementation Plan ....... Information describing the source, its construction schedule, 52.21(n).
and the planned continuous emissions reductions system.
State Operating Permits ........... Reports, notices, or other written submissions required by a 70.6(c)(1).
State Operating Permit.
Title V Permits—Permit Con- Reports, notices, or other written submissions required by a 71.6(c)(1), 71.25(c)(1).
tent. Title V Operating Permit.
Title V Permits .......................... Specific criteria for permit modifications and or revisions, in- 71.7(e(2)(ii)(c).
cluding a certification statement by a responsible official.
Reclaimer Certification ............. Certification made by a reclaimer that the refrigerant was re- 82.164.
processed according to specifications and that no more
than 1.5% of the refrigerant was released during the rec-
lamation.
Application for Certification and Control of Emissions for New and In-Use Highway Vehicles 86.007–21 (heavy duty),
Statement of Compliance. and Engines statement of compliance made by manufac- 1844–01 (light duty).
turer, attesting that the engine family complies with stand-
ards for new and in-use highway vehicles and engines.
Application for Certification ...... Application made by engine manufacturer to obtain certificate 89.115, 90.107, 91.107,
of conformity. 92.203, 94.203.
National Pollutant Discharge National Pollutant Discharge Elimination System (NPDES) 122.21.
Elimination System. Permits and Renewals (includes individual permit applica-
tions, NPDES General Form 1, and NPDES Forms 2A–F,
and 2S).
Resource Conservation and Signatures for permit applications and reports; submission of 270.11, 270.42.
Recovery Act Permit Applica- permit modifications. (This category excludes Class I per-
tions and Modifications. mit modifications (40 CFR 270.42, Appendix I) that do not
require prior approval).
Certifications of Compliance/Non-Applicability
State Implementation Plan Re- State implementation plan certifications for testing, inspection, 51.212(c), 51.214(e).
quirements. enforcement, and continuous emissions monitoring.
Certification Statement ............. Chemical Accident Prevention Provisions—Risk Management 68.185.
Plan certification statements.
Title V Permits .......................... Federal compliance certifications and permit applications ....... 70.5(c)(9), 70.5(d), 70.6(c)(5).
State Operating Permits ........... State compliance certifications and permit applications ........... 71.5(c)(9), 71.5(d), 71.24(f).
Annual and Other Compliance Annual compliance certification report and is submitted by 72.90.
Certification Reports. units subject to acid rain emissions limitations.
Annual Compliance Certifi- Annual compliance certification report which is submitted in 74.43.
cation Report, Opt-In Report, lieu of annual compliance certification report listed in Sub-
and Confirmation Report. part I of Part 72.
Quarterly Reports and Compli- Continuous Emission Monitoring certifications, monitoring 75.73.
ance Certifications. plans, and quarterly reports for NOX emissions.
Certification Letters Recovery Protection of Stratospheric Ozone: Recycling & Emissions 79.4, 80.161, 82.162, 82.42.
and Recycling Equipment, Reduction. Acquisition of equipment for recovery or recy-
Motor Vehicle Air Condi- cling made by auto repair service technician and Fuels and
tioners Recycling Program, Fuel Additives Detergent additive certification.
Detergent Package.
Response Plan Cover Sheet ... Oil Pollution Prevention certification to the truth and accuracy 112 (Appendix f).
of information.
Closure Report ......................... Report which documents that closure was in accordance with 146.71.
closure plan and/or details difference between actual clo-
sure and the procedures outlined in the closure plan.
Certification of Closure and Certification that Treatment, Storage, and Disposal Facilities 264.115, 264.119,
Post Closure Care, Post-Clo- (TSDF) are closed in accordance with approved closure 264.119(b)(2), 264.120,
sure Notices. plan or post-closure plan. 265.115, 265.119(b)(2),
265.120, 265.19.
Certification of Testing Lab Certification that the testing and/or lab analyses required for 270.63.
Analysis. the treatment demonstration phase of a two-phase permit
was conducted.
Periodic Certification ................ Certification that facility is operating its system to provide 437.41(b).
equivalent treatment as in initial certification.
1 Included within each permit application category, though sometimes not listed, are the permits submitted to run/operate/main-
tain facilities and/or equipment/products under EPA or authorized programs.
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Pt. 4 40 CFR Ch. I (7–1–21 Edition)
5.215 Membership practices of certain orga- The purpose of these Title IX regula-
nizations. tions is to effectuate Title IX of the
5.220 Admissions. Education Amendments of 1972, as
80
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Environmental Protection Agency § 5.105
amended (except sections 904 and 906 of building or facility or any portion
those Amendments) (20 U.S.C. 1681, thereof; and
1682, 1683, 1685, 1686, 1687, 1688), which is (ii) Scholarships, loans, grants,
designed to eliminate (with certain ex- wages, or other funds extended to any
ceptions) discrimination on the basis of entity for payment to or on behalf of
sex in any education program or activ- students admitted to that entity, or
ity receiving Federal financial assist- extended directly to such students for
ance, whether or not such program or payment to that entity.
activity is offered or sponsored by an (2) A grant of Federal real or per-
educational institution as defined in sonal property or any interest therein,
these Title IX regulations. The effec- including surplus property, and the
tive date of these Title IX regulations proceeds of the sale or transfer of such
shall be September 29, 2000. property, if the Federal share of the
fair market value of the property is
§ 5.105 Definitions. not, upon such sale or transfer, prop-
As used in these Title IX regulations, erly accounted for to the Federal Gov-
the term: ernment.
Administratively separate unit means a (3) Provision of the services of Fed-
school, department, or college of an eral personnel.
educational institution (other than a (4) Sale or lease of Federal property
local educational agency) admission to or any interest therein at nominal con-
which is independent of admission to sideration, or at consideration reduced
any other component of such institu- for the purpose of assisting the recipi-
tion. ent or in recognition of public interest
Admission means selection for part- to be served thereby, or permission to
time, full-time, special, associate, use Federal property or any interest
transfer, exchange, or any other enroll- therein without consideration.
ment, membership, or matriculation in (5) Any other contract, agreement, or
or at an education program or activity arrangement that has as one of its pur-
operated by a recipient. poses the provision of assistance to any
Applicant means one who submits an education program or activity, except
application, request, or plan required a contract of insurance or guaranty.
to be approved by an official of the Institution of graduate higher edu-
Federal agency that awards Federal fi- cation means an institution that:
nancial assistance, or by a recipient, as (1) Offers academic study beyond the
a condition to becoming a recipient. bachelor of arts or bachelor of science
Designated agency official means the degree, whether or not leading to a cer-
Director, Office of Civil Rights. tificate of any higher degree in the lib-
Educational institution means a local eral arts and sciences;
educational agency (LEA) as defined by (2) Awards any degree in a profes-
20 U.S.C. 8801(18), a preschool, a private sional field beyond the first profes-
elementary or secondary school, or an sional degree (regardless of whether
applicant or recipient that is an insti- the first professional degree in such
tution of graduate higher education, an field is awarded by an institution of
institution of undergraduate higher undergraduate higher education or pro-
education, an institution of profes- fessional education); or
sional education, or an institution of (3) Awards no degree and offers no
vocational education, as defined in this further academic study, but operates
section. ordinarily for the purpose of facili-
Federal financial assistance means any tating research by persons who have
of the following, when authorized or received the highest graduate degree in
extended under a law administered by any field of study.
the Federal agency that awards such Institution of professional education
assistance: means an institution (except any insti-
(1) A grant or loan of Federal finan- tution of undergraduate higher edu-
cial assistance, including funds made cation) that offers a program of aca-
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§ 5.110 40 CFR Ch. I (7–1–21 Edition)
sions set forth at §§ 5.100 through 5.605. practices that do not or may not meet
Transition plan means a plan subject the requirements of these Title IX reg-
to the approval of the Secretary of ulations; and
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Environmental Protection Agency § 5.125
(3) Take appropriate remedial steps the recipient for the period during
to eliminate the effects of any dis- which it retains ownership or posses-
crimination that resulted or may have sion of the property.
resulted from adherence to these poli- (3) In all other cases such assurance
cies and practices. shall obligate the recipient for the pe-
(d) Availability of self-evaluation and riod during which Federal financial as-
related materials. Recipients shall main- sistance is extended.
tain on file for at least three years fol- (c) Form. (1) The assurances required
lowing completion of the evaluation re- by paragraph (a) of this section, which
quired under paragraph (c) of this sec- may be included as part of a document
tion, and shall provide to the des- that addresses other assurances or obli-
ignated agency official upon request, a gations, shall include that the appli-
description of any modifications made cant or recipient will comply with all
pursuant to paragraph (c)(2) of this sec- applicable Federal statutes relating to
tion and of any remedial steps taken nondiscrimination. These include but
pursuant to paragraph (c)(3) of this sec- are not limited to: Title IX of the Edu-
tion. cation Amendments of 1972, as amend-
§ 5.115 Assurance required. ed (20 U.S.C. 1681–1683, 1685–1688).
(2) The designated agency official
(a) General. Either at the application will specify the extent to which such
stage or the award stage, Federal agen- assurances will be required of the ap-
cies must ensure that applications for plicant’s or recipient’s subgrantees,
Federal financial assistance or awards contractors, subcontractors, trans-
of Federal financial assistance contain, ferees, or successors in interest.
be accompanied by, or be covered by a
specifically identified assurance from § 5.120 Transfers of property.
the applicant or recipient, satisfactory
to the designated agency official, that If a recipient sells or otherwise trans-
each education program or activity op- fers property financed in whole or in
erated by the applicant or recipient part with Federal financial assistance
and to which these Title IX regulations to a transferee that operates any edu-
apply will be operated in compliance cation program or activity, and the
with these Title IX regulations. An as- Federal share of the fair market value
surance of compliance with these Title of the property is not upon such sale or
IX regulations shall not be satisfactory transfer properly accounted for to the
to the designated agency official if the Federal Government, both the trans-
applicant or recipient to whom such as- feror and the transferee shall be
surance applies fails to commit itself deemed to be recipients, subject to the
to take whatever remedial action is provisions of §§ 5.205 through 5.235(a).
necessary in accordance with § 5.110(a)
§ 5.125 Effect of other requirements.
to eliminate existing discrimination on
the basis of sex or to eliminate the ef- (a) Effect of other Federal provisions.
fects of past discrimination whether The obligations imposed by these Title
occurring prior to or subsequent to the IX regulations are independent of, and
submission to the designated agency do not alter, obligations not to dis-
official of such assurance. criminate on the basis of sex imposed
(b) Duration of obligation. (1) In the by Executive Order 11246, 3 CFR, 1964–
case of Federal financial assistance ex- 1965 Comp., p. 339; as amended by Exec-
tended to provide real property or utive Order 11375, 3 CFR, 1966–1970
structures thereon, such assurance Comp., p. 684; as amended by Executive
shall obligate the recipient or, in the Order 11478, 3 CFR, 1966–1970 Comp., p.
case of a subsequent transfer, the 803; as amended by Executive Order
transferee, for the period during which 12087, 3 CFR, 1978 Comp., p. 230; as
the real property or structures are used amended by Executive Order 12107, 3
to provide an education program or ac- CFR, 1978 Comp., p. 264; sections 704
tivity. and 855 of the Public Health Service
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(2) In the case of Federal financial as- Act (42 U.S.C. 295m, 298b-2); Title VII of
sistance extended to provide personal the Civil Rights Act of 1964 (42 U.S.C.
property, such assurance shall obligate 2000e et seq.); the Equal Pay Act of 1963
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§ 5.130 40 CFR Ch. I (7–1–21 Edition)
(29 U.S.C. 206); and any other Act of and equitable resolution of student and
Congress or Federal regulation. employee complaints alleging any ac-
(b) Effect of State or local law or other tion that would be prohibited by these
requirements. The obligation to comply Title IX regulations.
with these Title IX regulations is not
obviated or alleviated by any State or § 5.140 Dissemination of policy.
local law or other requirement that (a) Notification of policy. (1) Each re-
would render any applicant or student cipient shall implement specific and
ineligible, or limit the eligibility of continuing steps to notify applicants
any applicant or student, on the basis for admission and employment, stu-
of sex, to practice any occupation or dents and parents of elementary and
profession. secondary school students, employees,
(c) Effect of rules or regulations of pri- sources of referral of applicants for ad-
vate organizations. The obligation to mission and employment, and all
comply with these Title IX regulations unions or professional organizations
is not obviated or alleviated by any holding collective bargaining or profes-
rule or regulation of any organization, sional agreements with the recipient,
club, athletic or other league, or asso- that it does not discriminate on the
ciation that would render any appli- basis of sex in the educational pro-
cant or student ineligible to partici- grams or activities that it operates,
pate or limit the eligibility or partici- and that it is required by Title IX and
pation of any applicant or student, on these Title IX regulations not to dis-
the basis of sex, in any education pro- criminate in such a manner. Such noti-
gram or activity operated by a recipi- fication shall contain such informa-
ent and that receives Federal financial tion, and be made in such manner, as
assistance. the designated agency official finds
necessary to apprise such persons of
§ 5.130 Effect of employment opportu- the protections against discrimination
nities. assured them by Title IX and these
The obligation to comply with these Title IX regulations, but shall state at
Title IX regulations is not obviated or least that the requirement not to dis-
alleviated because employment oppor- criminate in education programs or ac-
tunities in any occupation or profes- tivities extends to employment there-
sion are or may be more limited for in, and to admission thereto unless
members of one sex than for members §§ 5.300 through 5.310 do not apply to
of the other sex. the recipient, and that inquiries con-
cerning the application of Title IX and
§ 5.135 Designation of responsible em- these Title IX regulations to such re-
ployee and adoption of grievance cipient may be referred to the em-
procedures. ployee designated pursuant to § 5.135, or
(a) Designation of responsible employee. to the designated agency official.
Each recipient shall designate at least (2) Each recipient shall make the ini-
one employee to coordinate its efforts tial notification required by paragraph
to comply with and carry out its re- (a)(1) of this section within 90 days of
sponsibilities under these Title IX reg- September 29, 2000 or of the date these
ulations, including any investigation of Title IX regulations first apply to such
any complaint communicated to such recipient, whichever comes later,
recipient alleging its noncompliance which notification shall include publi-
with these Title IX regulations or al- cation in:
leging any actions that would be pro- (i) Newspapers and magazines oper-
hibited by these Title IX regulations. ated by such recipient or by student,
The recipient shall notify all its stu- alumnae, or alumni groups for or in
dents and employees of the name, of- connection with such recipient; and
fice address, and telephone number of (ii) Memoranda or other written com-
the employee or employees appointed munications distributed to every stu-
pursuant to this paragraph. dent and employee of such recipient.
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Environmental Protection Agency § 5.220
of this section in each announcement, with a specific tenet of the religious or-
bulletin, catalog, or application form ganization.
that it makes available to any person
of a type, described in paragraph (a) of § 5.210 Military and merchant marine
this section, or which is otherwise used educational institutions.
in connection with the recruitment of These Title IX regulations do not
students or employees. apply to an educational institution
(2) A recipient shall not use or dis- whose primary purpose is the training
tribute a publication of the type de- of individuals for a military service of
scribed in paragraph (b)(1) of this sec- the United States or for the merchant
tion that suggests, by text or illustra- marine.
tion, that such recipient treats appli-
cants, students, or employees dif- § 5.215 Membership practices of cer-
tain organizations.
ferently on the basis of sex except as
such treatment is permitted by these (a) Social fraternities and sororities.
Title IX regulations. These Title IX regulations do not apply
(c) Distribution. Each recipient shall to the membership practices of social
distribute without discrimination on fraternities and sororities that are ex-
the basis of sex each publication de- empt from taxation under section
scribed in paragraph (b)(1) of this sec- 501(a) of the Internal Revenue Code of
tion, and shall apprise each of its ad- 1954, 26 U.S.C. 501(a), the active mem-
mission and employment recruitment bership of which consists primarily of
representatives of the policy of non- students in attendance at institutions
discrimination described in paragraph of higher education.
(a) of this section, and shall require (b) YMCA, YWCA, Girl Scouts, Boy
such representatives to adhere to such Scouts, and Camp Fire Girls. These Title
policy. IX regulations do not apply to the
membership practices of the Young
Men’s Christian Association (YMCA),
Subpart B—Coverage the Young Women’s Christian Associa-
tion (YWCA), the Girl Scouts, the Boy
§ 5.200 Application.
Scouts, and Camp Fire Girls.
Except as provided in §§ 5.205 through (c) Voluntary youth service organiza-
5.235(a), these Title IX regulations tions. These Title IX regulations do not
apply to every recipient and to each apply to the membership practices of a
education program or activity operated voluntary youth service organization
by such recipient that receives Federal that is exempt from taxation under
financial assistance. section 501(a) of the Internal Revenue
Code of 1954, 26 U.S.C. 501(a), and the
§ 5.205 Educational institutions and membership of which has been tradi-
other entities controlled by reli- tionally limited to members of one sex
gious organizations.
and principally to persons of less than
(a) Exemption. These Title IX regula- nineteen years of age.
tions do not apply to any operation of
an educational institution or other en- § 5.220 Admissions.
tity that is controlled by a religious (a) Admissions to educational insti-
organization to the extent that appli- tutions prior to June 24, 1973, are not
cation of these Title IX regulations covered by these Title IX regulations.
would not be consistent with the reli- (b) Administratively separate units. For
gious tenets of such organization. the purposes only of this section,
(b) Exemption claims. An educational §§ 5.225 and 5.230, and §§ 5.300 through
institution or other entity that wishes 5.310, each administratively separate
to claim the exemption set forth in unit shall be deemed to be an edu-
paragraph (a) of this section shall do so cational institution.
by submitting in writing to the des- (c) Application of §§ 5.300 through .310.
ignated agency official a statement by Except as provided in paragraphs (d)
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the highest-ranking official of the in- and (e) of this section, §§ 5.300 through
stitution, identifying the provisions of 5.310 apply to each recipient. A recipi-
these Title IX regulations that conflict ent to which §§ 5.300 through 5.310 apply
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§ 5.225 40 CFR Ch. I (7–1–21 Edition)
shall not discriminate on the basis of plan may be addressed. The person who
sex in admission or recruitment in vio- submits the plan shall be the chief ad-
lation of §§ 5.300 through 5.310. ministrator or president of the institu-
(d) Educational institutions. Except as tion, or another individual legally au-
provided in paragraph (e) of this sec- thorized to bind the institution to all
tion as to recipients that are edu- actions set forth in the plan.
cational institutions, §§ 5.300 through (2) State whether the educational in-
5.310 apply only to institutions of voca- stitution or administratively separate
tional education, professional edu- unit admits students of both sexes as
cation, graduate higher education, and regular students and, if so, when it
public institutions of undergraduate began to do so.
higher education. (3) Identify and describe with respect
(e) Public institutions of undergraduate to the educational institution or ad-
higher education. §§ 5.300 through 5.310 ministratively separate unit any obsta-
do not apply to any public institution cles to admitting students without dis-
of undergraduate higher education that crimination on the basis of sex.
traditionally and continually from its (4) Describe in detail the steps nec-
establishment has had a policy of ad- essary to eliminate as soon as prac-
mitting students of only one sex.
ticable each obstacle so identified and
§ 5.225 Educational institutions eligi- indicate the schedule for taking these
ble to submit transition plans. steps and the individual directly re-
sponsible for their implementation.
(a) Application. This section applies
to each educational institution to (5) Include estimates of the number
which §§ 5.300 through 5.310 apply that: of students, by sex, expected to apply
(1) Admitted students of only one sex for, be admitted to, and enter each
as regular students as of June 23, 1972; class during the period covered by the
or plan.
(2) Admitted students of only one sex (c) Nondiscrimination. No policy or
as regular students as of June 23, 1965, practice of a recipient to which § 5.225
but thereafter admitted, as regular stu- applies shall result in treatment of ap-
dents, students of the sex not admitted plicants to or students of such recipi-
prior to June 23, 1965. ent in violation of §§ 5.300 through 5.310
(b) Provision for transition plans. An unless such treatment is necessitated
educational institution to which this by an obstacle identified in paragraph
section applies shall not discriminate (b)(3) of this section and a schedule for
on the basis of sex in admission or re- eliminating that obstacle has been pro-
cruitment in violation of §§ 5.300 vided as required by paragraph (b)(4) of
through 5.310. this section.
(d) Effects of past exclusion. To over-
§ 5.230 Transition plans. come the effects of past exclusion of
(a) Submission of plans. An institution students on the basis of sex, each edu-
to which § 5.225 applies and that is com- cational institution to which § 5.225 ap-
posed of more than one administra- plies shall include in its transition
tively separate unit may submit either plan, and shall implement, specific
a single transition plan applicable to steps designed to encourage individuals
all such units, or a separate transition of the previously excluded sex to apply
plan applicable to each such unit. for admission to such institution. Such
(b) Content of plans. In order to be ap- steps shall include instituting recruit-
proved by the Secretary of Education, ment programs that emphasize the in-
a transition plan shall: stitution’s commitment to enrolling
(1) State the name, address, and Fed- students of the sex previously ex-
eral Interagency Committee on Edu- cluded.
cation Code of the educational institu-
tion submitting such plan, the admin- § 5.235 Statutory amendments.
istratively separate units to which the (a) This section, which applies to all
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plan is applicable, and the name, ad- provisions of these Title IX regula-
dress, and telephone number of the per- tions, addresses statutory amendments
son to whom questions concerning the to Title IX.
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Environmental Protection Agency § 5.235
(b) These Title IX regulations shall (B) A local educational agency (as de-
not apply to or preclude: fined in section 8801 of title 20), system
(1) Any program or activity of the of vocational education, or other
American Legion undertaken in con- school system;
nection with the organization or oper- (iii)(A) An entire corporation, part-
ation of any Boys State conference, nership, or other private organization,
Boys Nation conference, Girls State or an entire sole proprietorship—
conference, or Girls Nation conference; (1) If assistance is extended to such
(2) Any program or activity of a sec- corporation, partnership, private orga-
ondary school or educational institu- nization, or sole proprietorship as a
tion specifically for: whole; or
(i) The promotion of any Boys State (2) Which is principally engaged in
conference, Boys Nation conference, the business of providing education,
Girls State conference, or Girls Nation health care, housing, social services, or
conference; or
parks and recreation; or
(ii) The selection of students to at-
(B) The entire plant or other com-
tend any such conference;
parable, geographically separate facil-
(3) Father-son or mother-daughter
ity to which Federal financial assist-
activities at an educational institution
ance is extended, in the case of any
or in an education program or activity,
other corporation, partnership, private
but if such activities are provided for
students of one sex, opportunities for organization, or sole proprietorship; or
reasonably comparable activities shall (iv) Any other entity that is estab-
be provided to students of the other lished by two or more of the entities
sex; described in paragraphs (c)(1)(i), (ii), or
(4) Any scholarship or other financial (iii) of this section.
assistance awarded by an institution of (2)(i) Program or activity does not in-
higher education to an individual be- clude any operation of an entity that is
cause such individual has received such controlled by a religious organization
award in a single-sex pageant based if the application of 20 U.S.C. 1681 to
upon a combination of factors related such operation would not be consistent
to the individual’s personal appear- with the religious tenets of such orga-
ance, poise, and talent. The pageant, nization.
however, must comply with other non- (ii) For example, all of the operations
discrimination provisions of Federal of a college, university, or other post-
law. secondary institution, including but
(c) Program or activity or program not limited to traditional educational
means: operations, faculty and student hous-
(1) All of the operations of any entity ing, campus shuttle bus service, cam-
described in paragraphs (c)(1)(i) pus restaurants, the bookstore, and
through (iv) of this section, any part of other commercial activities are part of
which is extended Federal financial as- a ‘‘program or activity’’ subject to
sistance: these Title IX regulations if the col-
(i)(A) A department, agency, special lege, university, or other institution
purpose district, or other instrumen- receives Federal financial assistance.
tality of a State or of a local govern-
(d)(1) Nothing in these Title IX regu-
ment; or
lations shall be construed to require or
(B) The entity of such State or local
prohibit any person, or public or pri-
government that distributes such as-
vate entity, to provide or pay for any
sistance and each such department or
agency (and each other State or local benefit or service, including the use of
government entity) to which the as- facilities, related to an abortion. Med-
sistance is extended, in the case of as- ical procedures, benefits, services, and
sistance to a State or local govern- the use of facilities, necessary to save
ment; the life of a pregnant woman or to ad-
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§ 5.300 40 CFR Ch. I (7–1–21 Edition)
or criteria that do not have such a dis- cruitment efforts for one sex as reme-
proportionately adverse effect are dial action pursuant to § 5.110(a), and
shown to be unavailable. may choose to undertake such efforts
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Environmental Protection Agency § 5.400
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§ 5.405 40 CFR Ch. I (7–1–21 Edition)
(ii) Shall not facilitate, require, per- § 5.415 Access to course offerings.
mit, or consider such participation if (a) A recipient shall not provide any
such action occurs. course or otherwise carry out any of its
§ 5.405 Housing. education program or activity sepa-
rately on the basis of sex, or require or
(a) Generally. A recipient shall not, refuse participation therein by any of
on the basis of sex, apply different its students on such basis, including
rules or regulations, impose different health, physical education, industrial,
fees or requirements, or offer different business, vocational, technical, home
services or benefits related to housing, economics, music, and adult education
except as provided in this section (in- courses.
cluding housing provided only to mar- (b)(1) With respect to classes and ac-
ried students). tivities in physical education at the el-
(b) Housing provided by recipient. (1) A ementary school level, the recipient
recipient may provide separate housing shall comply fully with this section as
on the basis of sex. expeditiously as possible but in no
(2) Housing provided by a recipient to event later than one year from Sep-
students of one sex, when compared to tember 29, 2000. With respect to phys-
that provided to students of the other ical education classes and activities at
sex, shall be as a whole: the secondary and post-secondary lev-
(i) Proportionate in quantity to the els, the recipient shall comply fully
number of students of that sex apply- with this section as expeditiously as
ing for such housing; and possible but in no event later than
(ii) Comparable in quality and cost to three years from September 29, 2000.
the student. (2) This section does not prohibit
(c) Other housing. (1) A recipient shall grouping of students in physical edu-
not, on the basis of sex, administer dif- cation classes and activities by ability
ferent policies or practices concerning as assessed by objective standards of
occupancy by its students of housing individual performance developed and
other than that provided by such re- applied without regard to sex.
cipient. (3) This section does not prohibit sep-
aration of students by sex within phys-
(2)(i) A recipient which, through so-
ical education classes or activities dur-
licitation, listing, approval of housing,
ing participation in wrestling, boxing,
or otherwise, assists any agency, orga-
rugby, ice hockey, football, basketball,
nization, or person in making housing
and other sports the purpose or major
available to any of its students, shall
activity of which involves bodily con-
take such reasonable action as may be
tact.
necessary to assure itself that such
(4) Where use of a single standard of
housing as is provided to students of
measuring skill or progress in a phys-
one sex, when compared to that pro-
ical education class has an adverse ef-
vided to students of the other sex, is as
fect on members of one sex, the recipi-
a whole:
ent shall use appropriate standards
(A) Proportionate in quantity; and that do not have such effect.
(B) Comparable in quality and cost to (5) Portions of classes in elementary
the student. and secondary schools, or portions of
(ii) A recipient may render such as- education programs or activities, that
sistance to any agency, organization, deal exclusively with human sexuality
or person that provides all or part of may be conducted in separate sessions
such housing to students of only one for boys and girls.
sex. (6) Recipients may make require-
ments based on vocal range or quality
§ 5.410 Comparable facilities. that may result in a chorus or choruses
A recipient may provide separate toi- of one or predominantly one sex.
let, locker room, and shower facilities
on the basis of sex, but such facilities § 5.420 Access to schools operated by
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Environmental Protection Agency § 5.430
sult of discrimination on the basis of for which he or she was selected under
sex in counseling or appraisal mate- paragraph (b)(2)(i) of this section be-
rials or by counselors. cause of the absence of a scholarship,
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§ 5.435 40 CFR Ch. I (7–1–21 Edition)
ices. However, any recipient that pro- riod of time as is deemed medically
vides full coverage health service shall necessary by the student’s physician,
provide gynecological care. at the conclusion of which the student
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Environmental Protection Agency § 5.500
shall be reinstated to the status that (vii) Provision of locker rooms, prac-
she held when the leave began. tice, and competitive facilities;
(viii) Provision of medical and train-
§ 5.450 Athletics. ing facilities and services;
(a) General. No person shall, on the (ix) Provision of housing and dining
basis of sex, be excluded from partici- facilities and services;
pation in, be denied the benefits of, be (x) Publicity.
treated differently from another per- (2) For purposes of paragraph (c)(1) of
son, or otherwise be discriminated this section, unequal aggregate expend-
against in any interscholastic, inter- itures for members of each sex or un-
collegiate, club, or intramural ath- equal expenditures for male and female
letics offered by a recipient, and no re- teams if a recipient operates or spon-
cipient shall provide any such athletics sors separate teams will not constitute
separately on such basis. noncompliance with this section, but
(b) Separate teams. Notwithstanding the designated agency official may
the requirements of paragraph (a) of consider the failure to provide nec-
this section, a recipient may operate or essary funds for teams for one sex in
sponsor separate teams for members of assessing equality of opportunity for
each sex where selection for such members of each sex.
teams is based upon competitive skill (d) Adjustment period. A recipient that
or the activity involved is a contact operates or sponsors interscholastic,
sport. However, where a recipient oper- intercollegiate, club, or intramural
ates or sponsors a team in a particular athletics at the elementary school
sport for members of one sex but oper- level shall comply fully with this sec-
ates or sponsors no such team for mem- tion as expeditiously as possible but in
bers of the other sex, and athletic op- no event later than one year from Sep-
portunities for members of that sex tember 29, 2000. A recipient that oper-
have previously been limited, members ates or sponsors interscholastic, inter-
of the excluded sex must be allowed to collegiate, club, or intramural ath-
letics at the secondary or postsec-
try out for the team offered unless the
ondary school level shall comply fully
sport involved is a contact sport. For
with this section as expeditiously as
the purposes of these Title IX regula-
possible but in no event later than
tions, contact sports include boxing,
three years from September 29, 2000.
wrestling, rugby, ice hockey, football,
basketball, and other sports the pur- § 5.455 Textbooks and curricular mate-
pose or major activity of which in- rial.
volves bodily contact. Nothing in these Title IX regulations
(c) Equal opportunity. (1) A recipient shall be interpreted as requiring or pro-
that operates or sponsors inter- hibiting or abridging in any way the
scholastic, intercollegiate, club, or in- use of particular textbooks or cur-
tramural athletics shall provide equal ricular materials.
athletic opportunity for members of
both sexes. In determining whether
equal opportunities are available, the Subpart E—Discrimination on the
designated agency official will con- Basis of Sex in Employment in
sider, among other factors: Education Programs or Activi-
(i) Whether the selection of sports ties Prohibited
and levels of competition effectively
accommodate the interests and abili- § 5.500 Employment.
ties of members of both sexes; (a) General. (1) No person shall, on
(ii) The provision of equipment and the basis of sex, be excluded from par-
supplies; ticipation in, be denied the benefits of,
(iii) Scheduling of games and prac- or be subjected to discrimination in
tice time; employment, or recruitment, consider-
(iv) Travel and per diem allowance; ation, or selection therefor, whether
(v) Opportunity to receive coaching full-time or part-time, under any edu-
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§ 5.505 40 CFR Ch. I (7–1–21 Edition)
(2) A recipient shall make all em- professional meetings, conferences, and
ployment decisions in any education other related activities, selection for
program or activity operated by such tuition assistance, selection for
recipient in a nondiscriminatory man- sabbaticals and leaves of absence to
ner and shall not limit, segregate, or pursue training;
classify applicants or employees in any (9) Employer-sponsored activities, in-
way that could adversely affect any ap- cluding social or recreational pro-
plicant’s or employee’s employment grams; and
opportunities or status because of sex. (10) Any other term, condition, or
(3) A recipient shall not enter into privilege of employment.
any contractual or other relationship
which directly or indirectly has the ef- § 5.505 Employment criteria.
fect of subjecting employees or stu- A recipient shall not administer or
dents to discrimination prohibited by operate any test or other criterion for
§§ 5.500 through 5.550, including rela- any employment opportunity that has
tionships with employment and refer- a disproportionately adverse effect on
ral agencies, with labor unions, and persons on the basis of sex unless:
with organizations providing or admin- (a) Use of such test or other criterion
istering fringe benefits to employees of is shown to predict validly successful
the recipient. performance in the position in ques-
(4) A recipient shall not grant pref- tion; and
erences to applicants for employment (b) Alternative tests or criteria for
on the basis of attendance at any edu- such purpose, which do not have such
cational institution or entity that ad- disproportionately adverse effect, are
mits as students only or predominantly shown to be unavailable.
members of one sex, if the giving of
such preferences has the effect of dis- § 5.510 Recruitment.
criminating on the basis of sex in vio- (a) Nondiscriminatory recruitment and
lation of these Title IX regulations. hiring. A recipient shall not discrimi-
(b) Application. The provisions of nate on the basis of sex in the recruit-
§§ 5.500 through 5.550 apply to: ment and hiring of employees. Where a
(1) Recruitment, advertising, and the recipient has been found to be pres-
process of application for employment; ently discriminating on the basis of sex
(2) Hiring, upgrading, promotion, in the recruitment or hiring of employ-
consideration for and award of tenure, ees, or has been found to have so dis-
demotion, transfer, layoff, termi- criminated in the past, the recipient
nation, application of nepotism poli- shall recruit members of the sex so dis-
cies, right of return from layoff, and criminated against so as to overcome
rehiring; the effects of such past or present dis-
(3) Rates of pay or any other form of crimination.
compensation, and changes in com- (b) Recruitment patterns. A recipient
pensation; shall not recruit primarily or exclu-
(4) Job assignments, classifications, sively at entities that furnish as appli-
and structure, including position de- cants only or predominantly members
scriptions, lines of progression, and se- of one sex if such actions have the ef-
niority lists; fect of discriminating on the basis of
(5) The terms of any collective bar- sex in violation of §§ 5.500 through 5.550.
gaining agreement;
(6) Granting and return from leaves § 5.515 Compensation.
of absence, leave for pregnancy, child- A recipient shall not make or enforce
birth, false pregnancy, termination of any policy or practice that, on the
pregnancy, leave for persons of either basis of sex:
sex to care for children or dependents, (a) Makes distinctions in rates of pay
or any other leave; or other compensation;
(7) Fringe benefits available by vir- (b) Results in the payment of wages
tue of employment, whether or not ad- to employees of one sex at a rate less
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Environmental Protection Agency § 5.535
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§ 5.540 40 CFR Ch. I (7–1–21 Edition)
(b) Benefits. A recipient that provides eral financial assistance shall publish
any compensation, service, or benefit in the FEDERAL REGISTER a notice of
to members of one sex pursuant to a the programs covered by these Title IX
State or local law or other requirement regulations. Each such Federal agency
shall provide the same compensation, shall periodically republish the notice
service, or benefit to members of the of covered programs to reflect changes
other sex. in covered programs. Copies of this no-
tice also shall be made available upon
§ 5.540 Advertising. request to the Federal agency’s office
A recipient shall not in any adver- that enforces Title IX.
tising related to employment indicate
preference, limitation, specification, or § 5.605 Enforcement procedures.
discrimination based on sex unless sex The investigative, compliance, and
is a bona fide occupational qualifica- enforcement procedural provisions of
tion for the particular job in question. Title VI of the Civil Rights Act of 1964
(42 U.S.C. 2000d) (‘‘Title VI’’) are hereby
§ 5.545 Pre-employment inquiries. adopted and applied to these Title IX
(a) Marital status. A recipient shall regulations. These procedures may be
not make pre-employment inquiry as found at 40 CFR 7.105 through 7.135.
to the marital status of an applicant
[65 FR 52890, Aug. 30, 2000]
for employment, including whether
such applicant is ‘‘Miss’’ or ‘‘Mrs.’’
(b) Sex. A recipient may make pre- PART 6—PROCEDURES FOR IMPLE-
employment inquiry as to the sex of an MENTING THE NATIONAL ENVI-
applicant for employment, but only if RONMENTAL POLICY ACT AND
such inquiry is made equally of such ASSESSING THE ENVIRONMENTAL
applicants of both sexes and if the re- EFFECTS ABROAD OF EPA AC-
sults of such inquiry are not used in TIONS
connection with discrimination prohib-
ited by these Title IX regulations. Subpart A—General Provisions for EPA
§ 5.550 Sex as a bona fide occupational Actions Subject to NEPA
qualification. Sec.
A recipient may take action other- 6.100 Policy and Purpose.
wise prohibited by §§ 5.500 through 5.550 6.101 Applicability.
6.102 Definitions.
provided it is shown that sex is a bona 6.103 Responsibilities of the NEPA and Re-
fide occupational qualification for that sponsible Officials.
action, such that consideration of sex
with regard to such action is essential Subpart B—EPA’s NEPA Environmental
to successful operation of the employ- Review Procedures
ment function concerned. A recipient
shall not take action pursuant to this 6.200 General requirements.
6.201 Coordination with other environ-
section that is based upon alleged com- mental review requirements.
parative employment characteristics 6.202 Interagency cooperation.
or stereotyped characterizations of one 6.203 Public participation.
or the other sex, or upon preference 6.204 Categorical exclusions and extraor-
based on sex of the recipient, employ- dinary circumstances.
ees, students, or other persons, but 6.205 Environmental assessments.
nothing contained in this section shall 6.206 Findings of no significant impact.
6.207 Environmental impact statements.
prevent a recipient from considering an 6.208 Records of decision.
employee’s sex in relation to employ- 6.209 Filing requirements for EPA EISs.
ment in a locker room or toilet facility 6.210 Emergency circumstances.
used only by members of one sex.
Subpart C—Requirements for Environ-
Subpart F—Procedures mental Information Documents and
Third-Party Agreements for EPA Actions
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Environmental Protection Agency § 6.102
6.302 Responsible Official requirements. § 6.101 Applicability.
6.303 Third-party agreements.
(a) Subparts A through C of this part
Subpart D—Assessing the Environmental apply to the proposed actions of EPA
Effects Abroad of EPA Actions that are subject to NEPA. EPA actions
subject to NEPA include the award of
6.400 Purpose and policy. wastewater treatment construction
6.401 Applicability. grants under Title II of the Clean
6.402 Definitions. Water Act, EPA’s issuance of new
6.403 Environmental review and assessment source National Pollutant Discharge
requirements. Elimination System (NPDES) permits
6.404 Lead or cooperating agency. under section 402 of the Clean Water
6.405 Exemptions and considerations. Act, certain research and development
6.406 Implementation. projects, development and issuance of
AUTHORITY: 42 U.S.C. 4321 et seq.; also 40 regulations, EPA actions involving
CFR parts 1500 through 1508, unless other- renovations or new construction of fa-
wise noted. cilities, and certain grants awarded for
SOURCE: 72 FR 53662, Sept. 19, 2007, unless projects authorized by Congress
otherwise noted. through the Agency’s annual Appro-
priations Act.
(b) Subparts A through C of this part
Subpart A—General Provisions for do not apply to EPA actions for which
EPA Actions Subject to NEPA NEPA review is not required. EPA ac-
tions under the Clean Water Act, ex-
§ 6.100 Policy and purpose.
cept those identified in § 6.101(a), and
(a) The National Environmental Pol- EPA actions under the Clean Air Act
icy Act of 1969 (NEPA), 42 U.S.C. 4321 et are statutorily exempt from NEPA. Ad-
seq., as implemented by the Council on ditionally, the courts have determined
Environmental Quality (CEQ) Regula- that certain EPA actions for which
tions (40 CFR Parts 1500 through 1508), analyses that have been conducted
requires that Federal agencies include under another statute are functionally
in their decision-making processes ap- equivalent with NEPA.
propriate and careful consideration of (c) The appropriate Responsible Offi-
all environmental effects of proposed cial will undertake certain EPA ac-
actions, analyze potential environ- tions required by the provisions of sub-
mental effects of proposed actions and parts A through C of this part.
their alternatives for public under- (d) Certain procedures in subparts A
standing and scrutiny, avoid or mini- through C of this part apply to the re-
mize adverse effects of proposed ac- sponsibilities of the NEPA Official.
tions, and restore and enhance environ- (e) Certain procedures in subparts A
mental quality to the extent prac- through C of this part apply to appli-
ticable. The U.S. Environmental Pro- cants who are required to provide envi-
tection Agency (EPA) shall integrate ronmental information to EPA.
these NEPA requirements as early in (f) When the Responsible Official de-
the Agency planning processes as pos- cides to perform an environmental re-
sible. The environmental review proc- view under the Policy for EPA’s Vol-
ess shall be the focal point to ensure untary Preparation of National Environ-
NEPA considerations are taken into mental Policy Act (NEPA) Documents,
account. the Responsible Official generally will
(b) Through this part, EPA adopts follow the procedures set out in sub-
the CEQ Regulations (40 CFR Parts 1500 parts A through C of this part.
through 1508) implementing NEPA;
subparts A through C of this part sup- § 6.102 Definitions.
plement those regulations, for actions (a) Subparts A through C of this part
proposed by EPA that are subject to use the definitions found at 40 CFR
NEPA requirements. Subparts A part 1508. Additional definitions are
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§ 6.103 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 6.200
(b) The Responsible Official must de- and social sciences with the environ-
termine the scope of the environmental mental design arts in planning and
review by considering the type of pro- making decisions on proposed actions
99
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§ 6.201 40 CFR Ch. I (7–1–21 Edition)
100
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Environmental Protection Agency § 6.203
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§ 6.204 40 CFR Ch. I (7–1–21 Edition)
contact information for the person des- tablish a longer public comment period
ignated by EPA to answer questions for a draft or final EIS.
about the proposed action and the EIS. (vi) After preparing a draft EIS and
The NOI must invite comments and before preparing a final EIS, the Re-
suggestions on the scope of the EIS. sponsible Official must solicit the com-
(2) The Responsible Official must dis- ments of appropriate federal agencies,
seminate the NOI consistent with 40 state and/or local governments, and/or
CFR 1506.6. federally-recognized Indian tribes, and
(3) The Responsible Official must the public (see 40 CFR 1503.1). The Re-
conduct the scoping process consistent sponsible Official must respond in the
with 40 CFR 1501.7 and any applicable
final EIS to substantive comments re-
EPA public participation regulations
ceived (see 40 CFR 1503.4).
(e.g., 40 CFR Part 25).
(i) Publication of the NOI in the FED- (vii) The Responsible Official may
ERAL REGISTER begins the scoping proc- conduct one or more public meetings or
ess. hearings on the draft EIS as part of the
(ii) The Responsible Official must en- public involvement process. If meet-
sure that the scoping process for an ings or hearings are held, the Respon-
EIS allows a minimum of thirty (30) sible Official must make the draft EIS
days for the receipt of public com- available to the public at least thirty
ments. (30) days in advance of any meeting or
(iii) The Responsible Official may hearing.
hold one or more public meetings as (4) The Responsible Official must
part of the scoping process for an EPA make the ROD available to the public
EIS. The Responsible Official must an- upon request.
nounce the location, date, and time of
public scoping meetings in the NOI or § 6.204 Categorical exclusions and ex-
by other appropriate means, such as traordinary circumstances.
additional notices in the FEDERAL REG- (a) A proposed action may be cat-
ISTER, news releases to the local media,
egorically excluded if the action fits
or letters to affected parties. Public
within a category of action that is eli-
scoping meetings should be held at
gible for exclusion and the proposed ac-
least fifteen (15) days after public noti-
fication. tion does not involve any extraor-
(iv) The Responsible Official must dinary circumstances.
use appropriate means to publicize the (1) Certain actions eligible for cat-
availability of draft and final EISs and egorical exclusion require the Respon-
the time and place for public meetings sible Official to document a determina-
or hearings on draft EISs. The methods tion that a categorical exclusion ap-
chosen for public participation must plies. The documentation must include:
focus on reaching persons who may be A brief description of the proposed ac-
interested in the proposed action. Such tion; a statement identifying the cat-
persons include those in potentially af- egorical exclusion that applies to the
fected communities where the proposed action; and a statement explaining why
action is known or expected to have en- no extraordinary circumstances apply
vironmental impacts including minor- to the proposed action. The Respon-
ity communities, low-income commu- sible Official must make a copy of the
nities, or federally-recognized Indian determination document available to
tribal communities. the public upon request. The categor-
(v) The Responsible Official must cir- ical exclusions requiring this docu-
culate the draft and final EISs con- mentation are listed in paragraphs
sistent with 40 CFR 1502.19 and any ap- (a)(1)(i) through (a)(1)(v) of this sec-
plicable EPA public participation regu-
tion.
lations and in accordance with the 45-
(i) Actions at EPA owned or operated
day public review period for draft EISs
and the 30-day public review period for facilities involving routine facility
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final EISs (see § 6.209 of this part). Con- maintenance, repair, and grounds-
sistent with section 6.209(b) of this keeping; minor rehabilitation, restora-
part, the Responsible Official may es- tion, renovation, or revitalization of
102
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Environmental Protection Agency § 6.204
existing facilities; functional replace- project that was completed prior to the
ment of equipment; acquisition and in- date the appropriation was enacted.
stallation of equipment; or construc- (2) Certain actions eligible for cat-
tion of new minor ancillary facilities egorical exclusion do not require the
adjacent to or on the same property as Responsible Official to document a de-
existing facilities. termination that a categorical exclu-
(ii) Actions relating to existing infra- sion applies. These categorical exclu-
structure systems (such as sewer sys- sions are listed in paragraphs (a)(2)(i)
tems; drinking water supply systems; through (a)(2)(x) of this section.
and stormwater systems, including (i) Procedural, ministerial, adminis-
combined sewer overflow systems) that trative, financial, personnel, and man-
involve minor upgrading, or minor ex- agement actions necessary to support
pansion of system capacity or rehabili- the normal conduct of EPA business.
tation (including functional replace- (ii) Acquisition actions (compliant
ment) of the existing system and sys- with applicable procedures for sustain-
tem components (such as the sewer col- able or ‘‘green’’ procurement) and con-
lection network and treatment system; tracting actions necessary to support
the system to collect, treat, store and the normal conduct of EPA business.
distribute drinking water; and (iii) Actions involving information
stormwater systems, including com- collection, dissemination, or exchange;
bined sewer overflow systems) or con- planning; monitoring and sample col-
struction of new minor ancillary facili- lection wherein no significant alter-
ties adjacent to or on the same prop- ation of existing ambient conditions
erty as existing facilities. This cat- occurs; educational and training pro-
egory does not include actions that: in- grams; literature searches and studies;
volve new or relocated discharges to computer studies and activities; re-
surface or ground water; will likely re- search and analytical activities; devel-
sult in the substantial increase in the opment of compliance assistance tools;
volume or the loading of pollutant to and architectural and engineering
the receiving water; will provide capac- studies. These actions include those
ity to serve a population 30% greater conducted directly by EPA and EPA
than the existing population; are not actions relating to contracts or assist-
supported by the state, or other re- ance agreements involving such ac-
gional growth plan or strategy; or di- tions.
rectly or indirectly involve or relate to (iv) Actions relating to or conducted
upgrading or extending infrastructure completely within a permanent, exist-
systems primarily for the purposes of ing contained facility, such as a labora-
future development. tory, or other enclosed building, pro-
(iii) Actions in unsewered commu- vided that reliable and scientifically-
nities involving the replacement of ex- sound methods are used to appro-
isting onsite systems, providing the priately dispose of wastes and safe-
new onsite systems do not result in guards exist to prevent hazardous,
substantial increases in the volume of toxic, and radioactive materials in ex-
discharge or the loadings of pollutants cess of allowable limits from entering
from existing sources, or relocate ex- the environment. Where such activities
isting discharge. are conducted at laboratories, the Lab
(iv) Actions involving re-issuance of Director or other appropriate official
a NPDES permit for a new source pro- must certify in writing that the labora-
viding the conclusions of the original tory follows good laboratory practices
NEPA document are still valid (includ- and adheres to all applicable federal,
ing the appropriate mitigation), there state, local, and federally-recognized
will be no degradation of the receiving Indian tribal laws and regulations.
waters, and the permit conditions do This category does not include activi-
not change or are more environ- ties related to construction and/or
mentally protective. demolition within the facility (see
(v) Actions for award of grants au- paragraph (a)(1)(i) of this section).
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thorized by Congress under EPA’s an- (v) Actions involving emergency pre-
nual Appropriations Act that are solely paredness planning and training activi-
for reimbursement of the costs of a ties.
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§ 6.204 40 CFR Ch. I (7–1–21 Edition)
(2) The proposed action is known or ognized Indian tribe environmental, re-
expected to have disproportionately source-protection, or land-use laws or
high and adverse human health or envi- regulations.
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Environmental Protection Agency § 6.205
(c) The Responsible Official may re- (g) Any addition, amendment, or de-
quest that an applicant submit suffi- letion of a categorical exclusion will be
cient information to enable the Re- done by rule-making and in coordina-
sponsible Official to determine whether tion with CEQ pursuant to 40 CFR
a categorical exclusion applies to the 1507.3 to amend paragraph (a)(1) or
applicant’s proposed action or whether paragraph (a)(2) of this section.
an exceptional circumstance applies. [72 FR 53662, Sept. 19, 2007, as amended at 74
Pursuant to Subpart C of this part, ap- FR 5993, Feb. 4, 2009]
plicants are not required to prepare
EIDs for actions that are being consid- § 6.205 Environmental assessments.
ered for categorical exclusion. (a) The Responsible Official must
(d) The Responsible Official must prepare an environmental assessment
prepare an EA or EIS when a proposed (EA) (see 40 CFR 1508.9) for a proposed
action involves extraordinary cir- action that is expected to result in en-
cumstances. vironmental impacts and the signifi-
(e) After a determination has been cance of the impacts is not known. An
made that a categorical exclusion ap- EA is not required if the proposed ac-
plies to an action, if new information tion is categorically excluded, or if the
or changes in the proposed action in- Responsible Official has decided to pre-
volve or relate to at least one of the ex- pare an EIS. (See 40 CFR 1501.3.)
traordinary circumstances or other- (b) Types of actions that normally re-
wise indicate that the action may not quire the preparation of an EA include:
meet the criteria for categorical exclu- (1) The award of wastewater treat-
sion and the Responsible Official deter- ment construction grants under Title
mines that an action no longer quali- II of the Clean Water Act;
fies for a categorical exclusion, the Re- (2) EPA’s issuance of new source
sponsible Official will prepare an EA or NPDES permits under section 402 of
EIS. the Clean Water Act;
(f) The Responsible Official, or other (3) EPA actions involving renova-
interested parties, may request the ad- tions or new construction of facilities;
dition, amendment, or deletion of a (4) Certain grants awarded for special
categorical exclusion. projects authorized by Congress
(1) Such requests must be made in through the Agency’s annual Appro-
writing, be directed to the NEPA Offi- priations Act; and
cial, and contain adequate information (5) Research and development
to support and justify the request. projects, such as initial field dem-
(2) Proposed new categories of ac- onstration of a new technology, field
tions for exclusion must meet these trials of a new product or new uses of
criteria: an existing technology, alteration of a
(i) Actions covered by the proposed local habitat by physical or chemical
categorical exclusion generally do not means, or actions that may result in
individually or cumulatively have a the release of radioactive, hazardous,
significant effect on the human envi- or toxic substances, or biota.
ronment and have been found by EPA (c) The Responsible Official, or other
to have no such effect. interested parties, may request
(ii) Actions covered by the proposed changes to the list of actions that nor-
categorical exclusion generally do not mally require the preparation of an EA
involve extraordinary circumstances as (i.e., the addition, amendment, or dele-
set out in paragraphs (b)(1) through tion of a type of action).
(b)(10) of this section and generally do (d) Consistent with 40 CFR 1508.9, an
not require preparation of an EIS; and EA must provide sufficient information
(iii) Information adequate to deter- and analysis for determining whether
mine that a proposed action is properly to prepare an EIS or to issue a FONSI
covered by the proposed category will (see 40 CFR 1508.9(a)), and may include
generally be available. analyses needed for other environ-
(3) The NEPA Official must deter- mental determinations. The EA must
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mine that the addition, amendment, or focus on resources that might be im-
deletion of a categorical exclusion is pacted and any environmental issues
appropriate. that are of public concern.
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§ 6.206 40 CFR Ch. I (7–1–21 Edition)
why there are no significant impacts. ment facilities or water supply systems
(c) In addition, the FONSI must in- for a community with a population
clude: greater than 100,000.
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Environmental Protection Agency § 6.207
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§ 6.208 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 6.302
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§ 6.303 40 CFR Ch. I (7–1–21 Edition)
(b) The Responsible Official must no- sible for its accuracy (see 40 CFR
tify the applicant if a determination 1506.5).
has been made that the action has been (f) At the request of an applicant and
categorically excluded, or if EPA needs at the discretion of the Responsible Of-
additional information to support the ficial, an applicant may prepare an EA
application of a categorical exclusion or EIS and supporting documents or
or if the submitted information does enter into a third-party contract pur-
not support the application of a cat- suant to § 6.303.
egorical exclusion and that an EA, or (g) The Responsible Official must re-
an EIS, will be required. view, and take responsibility for the
(c) When an EID is required for a completed NEPA documents, before
project, the Responsible Official must rendering a final decision on the pro-
consult with the applicant and provide posed action.
the applicant with guidance describing
the scope and level of environmental § 6.303 Third-party agreements.
information required. (a) If an EA or EIS is to be prepared
(1) The Responsible Official must pro- for an action subject to subparts A
vide guidance on a project-by-project through C of this part, the Responsible
basis to any applicant seeking such as- Official and the applicant may enter
sistance. For major categories of ac- into an agreement whereby the appli-
tions involving a large number of ap- cant engages and pays for the services
plicants, the Responsible Official may of a third-party contractor to prepare
prepare and make available generic an EA or EIS and any associated docu-
guidance describing the recommended ments for consideration by EPA. In
level and scope of environmental infor- such cases, the Responsible Official
mation that applicants should provide. must approve the qualifications of the
(2) The Responsible Official must third-party contractor. The third-party
consider the extent to which the appli- contractor must be selected on the
cant is capable of providing the re- basis of ability and absence of any con-
quired information. The Responsible flict of interest. Consistent with 40
Official may not require the applicant CFR 1506.5(c), in consultation with the
to gather data or perform analyses applicant, the Responsible Official
that unnecessarily duplicate either ex- shall select the contractor. The Re-
isting data or the results of existing sponsible Official must provide guid-
analyses available to EPA. The Re- ance to the applicant and contractor
sponsible Official must limit the re- regarding the information to be devel-
quest for environmental information to oped, including the project’s scope, and
that necessary for the environmental guide and participate in the collection,
review. analysis, and presentation of the infor-
(d) If, prior to completion of the envi- mation. The Responsible Official has
ronmental review for a project, the Re- sole authority for final approval of and
sponsible Official receives notification, EA or EIS.
that the applicant is proposing to or (1) The applicant must engage and
taking an action that would result in pay for the services of a contractor to
significant impacts or would limit al- prepare the EA or EIS and any associ-
ternatives, the Responsible Official ated documents without using EPA fi-
must notify the applicant promptly nancial assistance (including required
that EPA will take appropriate action match).
to ensure that the objectives and pro- (2) The Responsible Official, in con-
cedures of NEPA are achieved (see 40 sultation with the applicant, must en-
CFR 1506.1(b)). Such actions may in- sure that the contractor is qualified to
clude withholding grant funds or denial prepare an EA or EIS, and that the sub-
of permits. stantive terms of the contract specify
(e) The Responsible Official must the information to be developed, and
begin the NEPA review as soon as pos- the procedures for gathering, analyzing
sible after receiving the applicant’s and presenting the information.
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EID or draft EA. The Responsible Offi- (3) The Responsible Official must pre-
cial must independently evaluate the pare a disclosure statement for the ap-
information submitted and be respon- plicant to include in the contract
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Environmental Protection Agency § 6.401
specifying that the contractor has no the purpose of the National Environ-
financial or other interest in the out- mental Policy Act (NEPA) (42 U.S.C.
come of the project (see 40 CFR 4321 et seq.) and the Marine Protection,
1506.5(c)). Research, and Sanctuaries Act
(4) The Responsible Official will en- (MPRSA) (33 U.S.C. 1401 et seq.). It
sure that the EA or EIS and any associ- should be noted, however, that in ful-
ated documents contain analyses and filling its responsibilities under Execu-
conclusions that adequately assess the tive Order 12114, EPA shall be guided
relevant environmental issues. by CEQ regulations only to the extent
(b) In order to make a decision on the that they are made expressly applica-
action, the Responsible Official must ble by this subpart. The procedures set
independently evaluate the informa- forth below reflect EPA’s duties and re-
tion submitted in the EA or EIS and sponsibilities as required under the Ex-
any associated documents, and issue an ecutive Order and satisfy the require-
EA or draft and final EIS. After review ment for issuance of procedures under
of, and appropriate changes to, the EA section 2–1 of the Executive Order.
or EIS submitted by the applicant, the (b) Policy. It shall be the policy of
Responsible Official may accept it as this Agency to carry out the purpose
EPA’s document. The Responsible Offi- and requirements of the Executive
cial is responsible for the scope, accu- Order to the fullest extent possible.
racy, and contents of the EA or EIS EPA, within the realm of its expertise,
and any associated documents (see 40 shall work with the Department of
CFR 1506.5). State and the Council on Environ-
(c) A third-party agreement may not mental Quality to provide information
be initiated unless both the applicant to other Federal agencies and foreign
and the Responsible Official agree to nations to heighten awareness of and
its creation and terms. interest in the environment. EPA shall
(d) The terms of the contract be- further cooperate to the extent pos-
tween the applicant and the third- sible with Federal agencies to lend spe-
party contractor must ensure that the cial expertise and assistance in the
contractor does not have recourse to preparation of required environmental
EPA for financial or other claims aris- documents under the Executive Order.
ing under the contract, and that the EPA shall perform environmental re-
Responsible Official, or other EPA des- views of activities significantly affect-
ignee, may give technical advice to the ing the global commons and foreign na-
contractor. tions as required under Executive
Order 12114 and as set forth under these
Subpart D—Assessing the Environ- procedures.
mental Effects Abroad of EPA
Actions § 6.401 Applicability.
(a) Administrative actions requiring
AUTHORITY: 42 U.S.C. 4321, note, E.O. 12114, environmental review. The environ-
44 FR 1979, 3 CFR, 1979 Comp., p. 356. mental review requirements apply to
the activities of EPA as follows:
§ 6.400 Purpose and policy. (1) Major research or demonstration
(a) Purpose. On January 4, 1979, the projects which affect the global com-
President signed Executive Order 12114 mons or a foreign nation.
entitled ‘‘Environmental Effects (2) Ocean dumping activities carried
Abroad of Major Federal Actions.’’ The out under section 102 of the MPRSA
purpose of this Executive Order is to which affect the related environment.
enable responsible Federal officials in (3) Major permitting or licensing by
carrying out or approving major Fed- EPA of facilities which affect the glob-
eral actions which affect foreign na- al commons or the environment of a
tions or the global commons to be in- foreign nation. This may include such
formed of pertinent environmental actions as the issuance by EPA of haz-
considerations and to consider fully ardous waste treatment, storage, or
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§ 6.402 40 CFR Ch. I (7–1–21 Edition)
NPDES permits pursuant to section 402 participate in this study. This environ-
of the Clean Water Act (33 U.S.C. 1342), mental study shall discuss the need for
and prevention of significant deteriora- the action, analyze the environmental
tion approvals pursuant to Part C of impact of the various alternatives con-
the Clean Air Act (42 U.S.C. 7470 et seq.) sidered and list the agencies and other
(4) Wastewater Treatment Construc- parties consulted.
tion Grants Program under section 201 (b) Ocean dumping activities. (1) The
of the Clean Water Act when activities Assistant Administrator for Water
addressed in the facility plan would shall ensure the preparation of appro-
have environmental effects abroad. priate environmental documents relat-
(5) Other EPA activities as deter- ing to ocean dumping activities in the
mined by OFA and OIA (see § 6.406(c)). global commons under section 102 of
(b) [Reserved] the MPRSA. For ocean dumping site
designations prescribed pursuant to
§ 6.402 Definitions. section 102(c) of the MPRSA and 40
As used in this subpart, environment CFR part 228, and for the establish-
means the natural and physical envi- ment or revision of criteria under sec-
ronment and excludes social, economic tion 102(a) of the MPRSA, EPA shall
and other environments; global com- prepare appropriate environmental
mons is that area (land, air, water) out- documents consistent with EPA’s No-
side the jurisdiction of any nation; and tice of Policy and Procedures for Vol-
responsible official is either the EPA As- untary Preparation of National Envi-
sistant Administrator or Regional Ad- ronmental Policy Act (NEPA) Docu-
ministrator as appropriate for the par- ments dated October 29, 1998.
ticular EPA program. Also, an action (2) For individual permits issued by
significantly affects the environment if EPA under section 102(b) an environ-
it does significant harm to the environ- mental assessment shall be made by
ment even though on balance the ac- EPA. Pursuant to 40 CFR part 221, the
tion may be beneficial to the environ- permit applicant shall submit with the
ment. To the extent applicable, the re- application an environmental analysis
sponsible official shall address the con- which includes a discussion of the need
siderations set forth in the CEQ regula- for the action, an outline of alter-
tions under 40 CFR 1508.27 in deter- natives, and an analysis of the environ-
mining significant effect. mental impact of the proposed action
and alternatives consistent with the
§ 6.403 Environmental review and as- EPA criteria established under section
sessment requirements. 102(a) of MPRSA. The information sub-
(a) Research and demonstration mitted under 40 CFR part 221 shall be
projects. The appropriate Assistant Ad- sufficient to satisfy the environmental
ministrator is responsible for per- assessment requirement.
forming the necessary degree of envi- (c) EPA permitting and licensing activi-
ronmental review on research and dem- ties. The appropriate Regional Adminis-
onstration projects undertaken by trator is responsible for conducting
EPA. If the research or demonstration concise environmental reviews with re-
project affects the environment of the gard to permits issued under section
global commons, the applicant shall 3005 of the Resource Conservation and
prepare an environmental analysis. Recovery Act (RCRA permits), section
This will assist the responsible official 402 of the Clean Water Act (NPDES
in determining whether an EIS is nec- permits), and section 165 of the Clean
essary. If it is determined that the ac- Air Act (PSD permits), for such actions
tion significantly affects the environ- undertaken by EPA which affect the
ment of the global commons, then an global commons or foreign nations.
EIS shall be prepared. If the under- The information submitted by appli-
taking significantly affects a foreign cants for such permits or approvals
nation EPA shall prepare a unilateral, under the applicable consolidated per-
bilateral or multilateral environ- mit regulations (40 CFR parts 122 and
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mental study. EPA shall afford the af- 124) and Prevention of Significant De-
fected foreign nation or international terioration (PSD) regulations (40 CFR
body or organization an opportunity to part 52) shall satisfy the environmental
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Environmental Protection Agency § 6.406
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Pt. 7 40 CFR Ch. I (7–1–21 Edition)
7.130 Actions available to EPA to obtain able by handicapped persons. Such as-
compliance. sistance includes but is not limited to
7.135 Procedure for regaining eligibility. that which is listed in the Catalogue of
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Environmental Protection Agency § 7.25
Federal Domestic Assistance under the thorized by this part and by other EPA
66.000 series. It supersedes the provi- regulations or delegation of authority.
sions of former 40 CFR parts 7 and 12. Drug abuse means:
(a) The use of any drug or substance
§ 7.20 Responsible agency officers. listed by the Department of Justice in
(a) The EPA Office of Civil Rights 21 CFR 1308.11, under authority of the
(OCR) is responsible for developing and Controlled Substances Act, 21 U.S.C.
administering EPA’s means of ensuring 801, as a controlled substance unavail-
compliance under the Acts. able for prescription because:
(b) EPA’s Project Officers will, to the (1) The drug or substance has a high
extent possible, be available to explain potential for abuse,
to each recipient its obligations under (2) The drug or other substance has
this part and to provide recipients with no currently accepted medical use in
technical assistance or guidance upon treatment in the United States, or
request. (3) There is a lack of accepted safety
[49 FR 1659, Jan. 12, 1984, as amended at 68
for use of the drug or other substance
FR 51372, Aug. 26, 2003] under medical supervision.
NOTE: Examples of drugs under paragraph
§ 7.25 Definitions. (a)(1) of this section include certain opiates
As used in this part: and opiate derivatives (e.g., heroin) and hal-
Action, for purposes of subpart F of lucinogenic substances (e.g., marijuana,
this part, means any act, activity, pol- mescaline, peyote) and depressants (e.g.,
methaqualone). Examples of (a)(2) include
icy, rule, standard, or method of ad-
opium, coca leaves, methadone, amphet-
ministration; or the use of any policy, amines and barbiturates.
rule, standard, or method of adminis-
tration. (b) The misuse of any drug or sub-
Administrator means the Adminis- stance listed by the Department of Jus-
trator of EPA. It includes any other tice in 21 CFR 1308.12–1308.15 under au-
agency official authorized to act on his thority of the Controlled Substances
or her behalf, unless explicity stated Act as a controlled substance available
otherwise. for prescription.
Age, for purposes of subpart F of this EPA means the United States Envi-
part, means how old a person is, or the ronmental Protection Agency.
number of elapsed years from the date EPA assistance means any grant or
of a person’s birth. cooperative agreement, loan, contract
Age distinction, for purposes of sub- (other than a procurement contract or
part F of this part, means any action a contract of insurance or guaranty),
using age or an age-related term. or any other arrangement by which
Age-related term, for purposes of sub- EPA provides or otherwise makes
part F of this part, means a word or available assistance in the form of:
words which necessarily imply a par- (1) Funds;
ticular age or range of ages (for exam- (2) Services of personnel; or
ple; ‘‘children,’’ ‘‘adult,’’ ‘‘older per- (3) Real or personal property or any
sons,’’ but not ‘‘student’’ or ‘‘grade’’). interest in or use of such property, in-
Alcohol abuse means any misuse of al- cluding:
cohol which demonstrably interferes (i) Transfers or leases of such prop-
with a person’s health, interpersonal erty for less than fair market value or
relations or working ability. for reduced consideration; and
Applicant means any entity that files (ii) Proceeds from a subsequent
an application or unsolicited proposal transfer or lease of such property if
or otherwise requests EPA assistance EPA’s share of its fair market value is
(see definition for EPA assistance). not returned to EPA.
Assistant Attorney General is the head Facility means all, or any part of, or
of the Civil Rights Division, U.S. De- any interests in structures, equipment,
partment of Justice. roads, walks, parking lots, or other
Award Official means the EPA official real or personal property.
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§ 7.25 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 7.35
listed in Directive 15, the categories in this (3) Restrict a person in any way in
paragraph shall be interpreted to conform the enjoyment of any advantage or
with any such changes or amendments. privilege enjoyed by others receiving
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§ 7.45 40 CFR Ch. I (7–1–21 Edition)
any service, aid, or benefit provided by (d) The specific prohibitions of dis-
the program or activity; crimination enumerated above do not
(4) Subject a person to segregation in limit the general prohibition of § 7.30.
any manner or separate treatment in [49 FR 1659, Jan. 12, 1984, as amended at 68
any way related to receiving services FR 51372, Aug. 26, 2003]
or benefits under the program or activ-
ity;
Subpart C—Discrimination Prohib-
(5) Deny a person or any group of per-
sons the opportunity to participate as
ited on the Basis of Handi-
members of any planning or advisory cap
body which is an integral part of the
§ 7.45 General prohibition.
program or activity, such as a local
sanitation board or sewer authority; No qualified handicapped person
(6) Discriminate in employment on shall solely on the basis of handicap be
the basis of sex in any program or ac- excluded from participation in, be de-
tivity subject to section 13, or on the nied the benefits of, or otherwise be
basis of race, color, or national origin subjected to discrimination under any
in any program or activity whose pur- program or activity receiving EPA as-
pose is to create employment; or, by sistance.
means of employment discrimination,
§ 7.50 Specific prohibitions against dis-
deny intended beneficiaries the bene- crimination.
fits of EPA assistance, or subject the
beneficiaries to prohibited discrimina- (a) A recipient, in providing any aid,
tion. benefit or service under any program
(7) In administering a program or ac- or activity receiving EPA assistance
tivity receiving Federal financial as- shall not, on the basis of handicap, di-
sistance in which the recipient has pre- rectly or through contractual, licens-
viously discriminated on the basis of ing, or other arrangement:
race, color, sex, or national origin, the (1) Deny a qualified handicapped per-
recipient shall take affirmative action son any service, aid or other benefit of
to provide remedies to those who have a federally assisted program or activ-
been injured by the discrimination. ity;
(b) A recipient shall not use criteria (2) Provide different or separate aids,
or methods of administering its pro- benefits, or services to handicapped
gram or activity which have the effect persons or to any class of handicapped
persons than is provided to others un-
of subjecting individuals to discrimina-
less the action is necessary to provide
tion because of their race, color, na-
qualified handicapped persons with
tional origin, or sex, or have the effect
aids, benefits, or services that are as
of defeating or substantially impairing
effective as those provided to others;
accomplishment of the objectives of
(3) Aid or perpetuate discrimination
the program or activity with respect to
against a qualified handicapped person
individuals of a particular race, color,
by providing significant assistance to
national origin, or sex.
an entity that discriminates on the
(c) A recipient shall not choose a site basis of handicap in providing aids,
or location of a facility that has the benefits, or services to beneficiaries of
purpose or effect of excluding individ- the recipient’s program or activity;
uals from, denying them the benefits (4) Deny a qualified handicapped per-
of, or subjecting them to discrimina- son the opportunity to participate as a
tion under any program or activity to member of planning or advisory boards;
which this part applies on the grounds or
of race, color, or national origin or sex; (5) Limit a qualified handicapped per-
or with the purpose or effect of defeat- son in any other way in the enjoyment
ing or substantially impairing the ac- of any right, privilege, advantage, or
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Environmental Protection Agency § 7.60
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§ 7.65 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 7.80
accessible to and usable by handi- (2) Describe in detail what the recipi-
capped persons. Alterations to existing ent will do to make the facilities acces-
facilities shall, to the maximum extent sible,
feasible, be designed and constructed to (3) Specify the schedule for the steps
be readily accessible to and usable by needed to achieve full accessibility
handicapped persons. under § 7.65(a), and include a year-by-
(b) Conformance with Uniform Federal year timetable if the process will take
Accessibility Standards. (1) Effective as more than one year,
of January 18, 1991, design, construc- (4) Indicate the person responsible for
tion, or alteration of buildings in con- carrying out the plan.
formance with sections 3-8 of the Uni- (b) Availability. Recipients shall make
form Federal Accessibility Standards available a copy of the transition plan
(USAF) (appendix A to 41 CFR subpart to the OCR upon request and to the
101–19.6) shall be deemed to comply public for inspection at either the site
with the requirements of this section of the project or at the recipient’s
with respect to those buildings. Depar- main office.
tures from particular technical and
scoping requirements of UFAS by the [49 FR 1659, Jan. 12, 1984, as amended at 68
use of other methods are permitted FR 51372, Aug. 26, 2003]
where substantially equivalent or
greater access to and usability of the Subpart D—Requirements for
building is provided. Applicants and Recipients
(2) For purposes of this section, sec-
tion 4.1.6(1)(g) of UFAS shall be inter- § 7.80 Applicants.
preted to exempt from the require- (a) Assurances—(1) General. Appli-
ments of UFAS only mechanical rooms cants for EPA assistance shall submit
and other spaces that, because of their an assurance with their applications
intended use, will not require accessi- stating that, with respect to their pro-
bility to the public or beneficiaries or grams or activities that receive EPA
result in the employment or residence
assistance, they will comply with the
therein of persons with physical handi-
requirements of this part. Applicants
caps.
must also submit any other informa-
(3) This section does not require re- tion that the OCR determines is nec-
cipients to make building alterations essary for preaward review. The appli-
that have little likelihood of being ac- cant’s acceptance of EPA assistance is
complished without removing or alter-
an acceptance of the obligation of this
ing a load-bearing structural member.
assurance and this part.
[49 FR 1659, Jan. 12, 1984, as amended at 55 (2) Duration of assurance—(i) Real
FR 52138, 52142, Dec. 19, 1990] property. When EPA awards assistance
in the form of real property, or assist-
§ 7.75 Transition plan. ance to acquire real property, or struc-
If structural changes to facilities are tures on the property, the assurance
necessary to make the program or ac- will obligate the recipient, or trans-
tivity accessible to handicapped per- feree, during the period the real prop-
sons, a recipient must prepare a transi- erty or structures are used for the pur-
tion plan. pose for which EPA assistance is ex-
(a) Requirements. The transition plan tended, or for another purpose in which
must set forth the steps needed to com- similar services or benefits are pro-
plete the structural changes required vided. The transfer instrument shall
and must be developed with the assist- contain a covenant running with the
ance of interested persons, including land which assures nondiscrimination.
handicapped persons or organizations Where applicable, the covenant shall
representing handicapped persons. At a also retain a right of reverter which
minimum, the transition plan must: will permit EPA to recover the prop-
(1) Identify the physical obstacles in erty if the covenant is ever broken.
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the recipient’s facilities that limit (ii) Personal property. When EPA pro-
handicapped persons’ access to its pro- vides assistance in the form of personal
gram or activity, property, the assurance will obligate
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§ 7.85 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 7.110
for three (3) years after completing the ity receiving EPA assistance or, in pro-
project. When any complaint or other grams or activities covered by section
action for alleged failure to comply 13, on the basis of sex. Methods of no-
with this part is brought before the tice must accommodate those with im-
three-year period ends, the recipient paired vision or hearing. At a min-
shall keep records until the complaint imum, this notice must be posted in a
is resolved. prominent place in the recipient’s of-
(f) Accessibility to compliance infor- fices or facilities. Methods of notice
mation. A recipient shall: may also include publishing in news-
(1) Give the OCR access during nor- papers and magazines, and placing no-
mal business hours to its books, tices in recipient’s internal publica-
records, accounts and other sources of tions or on recipient’s printed letter-
information, including its facilities, as head. Where appropriate, such notice
may be pertinent to ascertain compli- must be in a language or languages
ance with this part; other than English. The notice must
(2) Make compliance information identify the responsible employee des-
available to the public upon request; ignated in accordance with § 7.85.
and
(b) Deadline. Recipients of assistance
(3) Assist in obtaining other required
must provide initial notice by thirty
information that is in the possession of
(30) calendar days after award and con-
other agencies, institutions, or persons
not under the recipient’s control. If tinuing notice for the duration of EPA
such party refuses to release that in- assistance.
formation, the recipient shall inform [49 FR 1659, Jan. 12, 1984, as amended at 68
the OCR and explain its efforts to ob- FR 51372, Aug. 26, 2003; 75 FR 31707, June 4,
tain the information. 2010]
(g) Coordination of compliance effort. If
the recipient employs fifteen (15) or § 7.100 Intimidation and retaliation
more employees, it shall designate at prohibited.
least one person to coordinate its ef- No applicant, recipient, nor other
forts to comply with its obligations person shall intimidate, threaten, co-
under this part. erce, or discriminate against any indi-
(Approved by the Office of Management and vidual or group, either:
Budget under control number 2000–0006) (a) For the purpose of interfering
[49 FR 1659, Jan. 12, 1984, as amended at 68 with any right or privilege guaranteed
FR 51372, Aug. 26, 2003; 75 FR 31707, June 4, by the Acts or this part, or
2010] (b) Because the individual has filed a
complaint or has testified, assisted or
§ 7.90 Grievance procedures. participated in any way in an inves-
(a) Requirements. Each recipient shall tigation, proceeding or hearing under
adopt grievance procedures that assure this part, or has opposed any practice
the prompt and fair resolution of com- made unlawful by this regulation.
plaints which allege violation of this
part. Subpart E—Agency Compliance
(b) Exception. Recipients with fewer
than fifteen (15) full-time employees
Procedures
need not comply with this section un- § 7.105 General policy.
less the OCR finds a violation of this
part or determines that creating a EPA’s Administrator, Director of the
grievance procedure will not signifi- Office of Civil Rights, Project Officers
cantly impair the recipient’s ability to and other responsible officials shall
provide benefits or services. seek the cooperation of applicants and
recipients in securing compliance with
§ 7.95 Notice of nondiscrimination. this part, and are available to provide
(a) Requirements. A recipient shall help.
provide initial and continuing notice
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§ 7.115 40 CFR Ch. I (7–1–21 Edition)
period, the OCR will determine wheth- (c) Postreview notice. (1) Within 180
er the applicant is in compliance with calendar days from the start of the
this part and inform the Award Offi- compliance review or complaint inves-
cial. This determination will be based tigation, the OCR will notify the re-
on the submissions required by § 7.80 cipient in writing by certified mail, re-
and any other information EPA re- turn receipt requested, of:
ceives during this time (including com- (i) Preliminary findings;
plaints) or has on file about the appli- (ii) Recommendations, if any, for
cant. When the OCR cannot make a de- achieving voluntary compliance; and
termination on the basis of this infor- (iii) Recipient’s right to engage in
mation, additional information will be voluntary compliance negotiations
requested from the applicant, local where appropriate.
government officials, or interested per- (2) The OCR will notify the Award Of-
sons or organizations, including aged ficial and the Assistant Attorney Gen-
and handicapped persons or organiza- eral for Civil Rights of the preliminary
tions representing such persons. The findings of noncompliance.
OCR may also conduct an on-site re- (d) Formal determination of noncompli-
view only when it has reason to believe ance. After receiving the notice of the
discrimination may be occurring in a preliminary finding of noncompliance
program or activity which is the sub- in paragraph (c) of this section, the re-
ject of the application. cipient may:
(b) Voluntary compliance. If the review (1) Agree to the OCR’s recommenda-
indicates noncompliance, an applicant tions, or
may agree in writing to take the steps (2) Submit a written response suffi-
the OCR recommends to come into cient to demonstrate that the prelimi-
compliance with this part. The OCR nary findings are incorrect, or that
must approve the written agreement compliance may be achieved through
before any award is made. steps other than those recommended
(c) Refusal to comply. If the applicant by OCR.
refuses to enter into such an agree- If the recipient does not take one of
ment, the OCR shall follow the proce- these actions within fifty (50) calendar
dure established by paragraph (b) of days after receiving this preliminary
§ 7.130. notice, the OCR shall, within fourteen
[49 FR 1659, Jan. 12, 1984, as amended at 75 (14) calendar days, send a formal writ-
FR 31707, June 4, 2010] ten determination of noncompliance to
the recipient and copies to the Award
§ 7.115 Postaward compliance. Official and Assistant Attorney Gen-
(a) Periodic review. The OCR may pe- eral.
riodically conduct compliance reviews (e) Voluntary compliance time limits.
of any recipient’s programs or activi- The recipient will have ten (10) cal-
ties receiving EPA assistance, includ- endar days from receipt of the formal
ing the request of data and informa- determination of noncompliance in
tion, and may conduct on-site reviews which to come into voluntary compli-
when it has reason to believe that dis- ance. If the recipient fails to meet this
crimination may be occurring in such deadline, the OCR must start pro-
programs or activities. ceedings under paragraph (b) of § 7.130.
(b) Notice of review. After selecting a (f) Form of voluntary compliance agree-
recipient for review or initiating a ments. All agreements to come into vol-
complaint investigation in accordance untary compliance must:
with § 7.120, the OCR will inform the re- (1) Be in writing;
cipient of: (2) Set forth the specific steps the re-
(1) The nature of and schedule for re- cipient has agreed to take, and
view, or investigation; and (3) Be signed by the Director, OCR or
(2) Its opportunity, before the deter- his/her designee and an official with
mination in paragraph (d) of this sec- authority to legally bind the recipient.
tion is made, to make a written sub-
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Environmental Protection Agency § 7.120
unless the complainant and the party the agency’s receipt of the complaint
complained against agree to a delay within five (5) calendar days.
pending settlement negotiations. (d) Complaint processing procedures.
(a) Who may file a complaint. A person After acknowledging receipt of a com-
who believes that he or she or a spe- plaint, the OCR will immediately ini-
cific class of persons has been discrimi- tiate complaint processing procedures.
nated against in violation of this part (1) Preliminary investigation. (i) Within
may file a complaint. The complaint twenty (20) calendar days of acknowl-
may be filed by an authorized rep- edgment of the complaint, the OCR
resentative. A complaint alleging em- will review the complaint for accept-
ployment discrimination must identify ance, rejection, or referral to the ap-
at least one individual aggrieved by propriate Federal agency.
such discrimination. Complaints solely
(ii) If the complaint is accepted, the
alleging employment discrimination
OCR will notify the complainant and
against an individual on the basis of
the Award Official. The OCR will also
race, color, national origin, sex or reli-
notify the applicant or recipient com-
gion shall be processed under the pro-
cedures for complaints of employment plained against of the allegations and
discrimination filed against recipients give the applicant or recipient oppor-
of Federal assistance (see 28 CFR part tunity to make a written submission
42, subpart H and 29 CFR part 1691). responding to, rebutting, or denying
Complaints of employment discrimina- the allegations raised in the complaint.
tion based on age against an individual (iii) The party complained against
by recipients of Federal financial as- may send the OCR a response to the
sistance are subject to the Age Dis- notice of complaint within thirty (30)
crimination in Employment Act of 1967 calendar days of receiving it.
and should be filed administratively (iv) Complaints alleging age discrimi-
with the Equal Employment Oppor- nation under the Age Discrimination
tunity Commission (see 29 CFR part Act of 1975 will be referred to a medi-
1626). Complainants are encouraged but ation agency in accordance with § 7.180.
not required to make use of any griev- (2) Informal resolution. (i) OCR shall
ance procedure established under § 7.90 attempt to resolve complaints infor-
before filing a complaint. Filing a com- mally whenever possible. When a com-
plaint through a grievance procedure plaint cannot be resolved informally,
does not extend the 180 day calendar OCR shall follow the procedures estab-
requirement of paragraph (b)(2 of this lished by paragraphs (c) through (e) of
section. § 7.115.
(b) Where, when and how to file com- (ii) [Reserved]
plaint. The complainant may file a (e) Confidentiality. EPA agrees to
complaint at any EPA office. The com- keep the complainant’s identity con-
plaint may be referred to the region in fidential except to the extent necessary
which the alleged discriminatory acts to carry out the purposes of this part,
occurred. including the conduct of any investiga-
(1) The complaint must be in writing tion, hearing, or judicial proceeding
and it must describe the alleged dis- arising thereunder. Ordinarily in com-
criminatory acts which violate this plaints of employment discrimination,
part. the name of the complainant will be
(2) The complaint must be filed with- given to the recipient with the notice
in 180 calendar days of the alleged dis- of complaint.
criminatory acts, unless the OCR
(f) [Reserved]
waives the time limit for good cause.
(g) Dismissal of complaint. If OCR’s in-
The filing of a grievance with the re-
cipient does not satisfy the require- vestigation reveals no violation of this
ment that complaints must be filed part, the Director, OCR, will dismiss
within 180 days of the alleged discrimi- the complaint and notify the complain-
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§ 7.125 40 CFR Ch. I (7–1–21 Edition)
§ 7.125 Coordination with other agen- the recipient does not request a hear-
cies. ing, it shall be deemed to have waived
If, in the conduct of a compliance re- its right to a hearing, and the OCR
view or an investigation, it becomes finding shall be deemed to be the ALJ’s
evident that another agency has juris- determination.
diction over the subject matter, OCR (3) Final decision and disposition. (i)
will cooperate with that agency during The applicant or recipient may, within
the continuation of the review of inves- 30 days of receipt of the ALJ’s deter-
tigation. EPA will: mination, file with the Administrator
(a) Coordinate its efforts with the its exceptions to that determination.
other agency, and When such exceptions are filed, the Ad-
(b) Ensure that one of the agencies is ministrator may, within 45 days after
designated the lead agency for this pur- the ALJ’s determination, serve to the
pose. When an agency other than EPA applicant or recipient, a notice that he/
serves as the lead agency, any action she will review the determination. In
taken, requirement imposed, or deter- the absence of either exceptions or no-
mination made by the lead agency, tice of review, the ALJ’s determination
other than a final determination to shall constitute the Administrator’s
terminate funds, shall have the same final decision.
effect as though such action had been (ii) If the Administrator reviews the
taken by EPA. ALJ’s determination, all parties shall
be given reasonable opportunity to file
§ 7.130 Actions available to EPA to ob- written statements. A copy of the Ad-
tain compliance. ministrator’s decision will be sent to
(a) General. If compliance with this the applicant or recipient.
part cannot be assured by informal (iii) If the Administrator’s decision is
means, EPA may terminate or refuse to deny an application, or annul, sus-
to award or to continue assistance. pend or terminate EPA assistance, that
EPA may also use any other means au- decision becomes effective thirty (30)
thorized by law to get compliance, in- days from the date on which the Ad-
cluding a referral of the matter to the ministrator submits a full written re-
Department of Justice. port of the circumstances and grounds
(b) Procedure to deny, annul, suspend for such action to the Committees of
or terminate EPA assistance—(1) OCR the House and Senate having legisla-
finding. If OCR determines that an ap- tive jurisdiction over the program or
plicant or recipient is not in compli- activity involved. The decision of the
ance with this part, and if compliance Administrator shall not be subject to
cannot be achieved voluntarily, OCR further administrative appeal under
shall make a finding of noncompliance. EPA’s General Regulation for Assist-
The OCR will notify the applicant or ance Programs (40 CFR part 30, subpart
recipient (by registered mail, return L).
receipt requested) of the finding, the (4) Scope of decision. The denial, an-
action proposed to be taken, and the nulment, termination or suspension
opportunity for an evidentiary hearing. shall be limited to the particular appli-
(2) Hearing. (i) Within 30 days of re- cant or recipient who was found to
ceipt of the above notice, the applicant have discriminated, and shall be lim-
or recipient shall file a written answer, ited in its effect to the particular pro-
under oath or affirmation, and may re- gram or activity or the part of it in
quest a hearing. which the discrimination was found.
(ii) The answer and request for a [49 FR 1659, Jan. 12, 1984, as amended at 68
hearing shall be sent by registered FR 51372, Aug. 26, 2003]
mail, return receipt requested, to the
Chief Administrative Law Judge (ALJ) § 7.135 Procedure for regaining eligi-
(A–110), United States Environmental bility.
Protection Agency, 1200 Pennsylvania (a) Requirements. An applicant or re-
Ave., NW., Washington, DC 20460. Upon cipient whose assistance has been de-
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Environmental Protection Agency § 7.150
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§ 7.155 40 CFR Ch. I (7–1–21 Edition)
otherwise eligible persons from partici- leged violation of the Age Discrimina-
pation in the program. tion Act; the relief requested; the court
in which the complainant is bringing
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Environmental Protection Agency Pt. 7, App. A
solved complaints to OCR to be proc- Pub. L.’s 94–140 and 95–396; Toxic Substances
essed in accordance with the procedure Control Act; 15 U.S.C. 2609; Pub. L. 94–469.
in § 7.120. (ORD 66.500)
129
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Pt. 8 40 CFR Ch. I (7–1–21 Edition)
11. Assistance provided by the Office of Re- PART 8—ENVIRONMENTAL IMPACT
search and Development under the Clean Air
Act of 1977, as amended; Pub. L. 95–95; 42 ASSESSMENT OF NONGOVERN-
U.S.C. 7401 et seq. (ORD 66.501) MENTAL ACTIVITIES IN ANTARC-
12. Assistance provided by the Office of Re- TICA
search and Development under the Federal
Insecticide, Fungicide and Rodenticide Act, Sec.
Pub. L. 95–516, 7 U.S.C. 136 et seq., as amended 8.1 Purpose.
by Pub. L.’s 94–140 and 95–396. (ORD 66.502) 8.2 Applicability and effect.
13. Assistance provided by the Office of Re- 8.3 Definitions.
search and Development under the Solid 8.4 Preparation of environmental docu-
Waste Disposal Act, as amended by the Re- ments, generally.
source Conservation and Recovery Act of 8.5 Submission of environmental docu-
1976; 42 U.S.C. 6901, Pub. L. 94–580, section ments.
8001. (ORD 66.504) 8.6 Preliminary environmental review.
14. Assistance provided by the Office of Re- 8.7 Initial environmental evaluation.
search and Development under the Clean 8.8 Comprehensive environmental evalua-
Water Act of 1977, as amended; Pub. L. 95–217; tion.
33 U.S.C. 1251 et seq. (ORD 66.505) 8.9 Measures to assess and verify environ-
15. Assistance provided by the Office of Re- mental impacts.
search and Development under the Public 8.10 Cases of emergency.
Health Service Act as amended by the Safe 8.11 Prohibited acts, enforcement and pen-
Drinking Water Act, as amended by Pub. L. alties.
95–190 (ORD 66.506) 8.12 Coordination of reviews from other
16. Assistance provided by the Office of Re- Parties.
search and Development under the Toxic AUTHORITY: 16 U.S.C. 2401 et seq., as amend-
Substances Control Act; Pub. L. 94–469; 15 ed, 16 U.S.C. 2403a.
U.S.C. 2609; section 10. (ORD 66.507)
17. Assistance provided by the Office of Ad- SOURCE: 66 FR 63468, Dec. 6, 2001, unless
ministration, including but not limited to: otherwise noted.
Clean Air Act of 1977, as amended, Pub. L. 95–
95; 42 U.S.C. 7401 et seq., Clean Water Act of § 8.1 Purpose.
1977, as amended; Pub. L. 95–217; 33 U.S.C. (a) This part is issued pursuant to the
1251 et seq.; Solid Waste Disposal Act, as Antarctic Science, Tourism, and Con-
amended by the Resource Conservation and
servation Act of 1996. As provided in
Recovery Act of 1976; 42 U.S.C. 6901; Pub. L.
94–580; Federal Insecticide, Fungicide and that Act, this part implements the re-
Rodenticide Act; Pub. L. 92–516; 7 U.S.C. 136 quirements of Article 8 and Annex I to
et seq. as amended by Pub. L.’s 94–140 and 95– the Protocol on Environmental Protec-
396; Public Health Service Act, as amended tion to the Antarctic Treaty of 1959 and
by the Safe Drinking Water Act, as amended provides for:
by Pub. L. 95–190. (OA 66.600) (1) The environmental impact assess-
18. Assistance provided by the Office of Ad- ment of nongovernmental activities,
ministration under the Clean Water Act of including tourism, for which the
1977, as amended; Pub. L. 95–217; section 213;
33 U.S.C. 1251 et seq. (OA 66.603)
United States is required to give ad-
19. Assistance provided by the Office of En- vance notice under paragraph 5 of Arti-
forcement Counsel under the Federal Insecti- cle VII of the Antarctic Treaty of 1959;
cide and Rodenticide Act, as amended; Pub. and
L. 92–516; 7 U.S.C. 136 et seq., as amended by (2) Coordination of the review of in-
Pub. L. 94–140, section 23(a) and Pub. L. 95– formation regarding environmental im-
396. (OA 66.700) pact assessment received by the United
20. Assistance provided by the Office of States from other Parties under the
Land and Emergency Management under the Protocol.
Comprehensive Environmental Responses,
Compensation and Liability Act of 1980; Pub.
(b) The procedures in this part are
L. 96–510, section 3012, 42 U.S.C. 9601, et seq. designed to: ensure that nongovern-
(OLEM—number not to be assigned since Of- mental operators identify and assess
fice of Management and Budget does not the potential impacts of their proposed
catalog one-year programs.) activities, including tourism, on the
21. Assistance provided by the Office of Antarctic environment; that operators
Water under the Clean Water Act as amend- consider these impacts in deciding
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ed; Pub. L. 97–117, 33 U.S.C. 1313. (OW—66.454) whether or how to proceed with pro-
[49 FR 1659, Jan. 12, 1984, as amended at 80 posed activities; and that operators
FR 77577, Dec. 15, 2015] provide environmental documentation
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Environmental Protection Agency § 8.3
pursuant to the Act and Annex I of the Antarctica means the Antarctic Trea-
Protocol. These procedures are con- ty area; i.e., the area south of 60 de-
sistent with and implement the envi- grees south latitude.
ronmental impact assessment provi- Comprehensive Environmental Evalua-
sions of Article 8 and Annex I to the tion (CEE) means a study of the reason-
Protocol on Environmental Protection ably foreseeable potential effects of a
to the Antarctic Treaty. proposed activity on the Antarctic en-
vironment, prepared in accordance
§ 8.2 Applicability and effect. with the provisions of this part and in-
(a) This part is intended to ensure cludes all comments received thereon.
that potential environmental effects of (See: § 8.8.)
nongovernmental activities under- Environmental document or environ-
taken in Antarctica are appropriately mental documentation (Document) means
identified and considered by the oper- a preliminary environmental review
ator during the planning process and memorandum, an initial environ-
that to the extent practicable, appro- mental evaluation, or a comprehensive
priate environmental safeguards which environmental evaluation.
would mitigate or prevent adverse im- Environmental impact assessment (EIA)
pacts on the Antarctic environment means the environmental review proc-
are identified by the operator. ess required by the provisions of this
(b) The requirements set forth in this part and by Annex I of the Protocol,
part apply to nongovernmental activi- and includes preparation by the oper-
ties for which the United States is re- ator and U.S. government review of an
quired to give advance notice under environmental document, and public
paragraph 5 of Article VII of the Ant- access to and circulation of environ-
arctic Treaty of 1959: All nongovern- mental documents to other Parties and
mental expeditions to and within Ant- the Committee on Environmental Pro-
arctica organized in or proceeding from tection as required by Annex I of the
its territory. Protocol.
(c) This part does not apply to activi- EPA means the Environmental Pro-
ties undertaken in the Antarctic Trea- tection Agency.
ty area that are governed by the Con- Expedition means any activity under-
vention on the Conservation of Ant- taken by one or more nongovernmental
arctic Marine Living Resources or the persons organized within or proceeding
Convention for the Conservation of from the United States to or within the
Antarctic Seals. Persons traveling to Antarctic Treaty area for which ad-
Antarctica are subject to the require- vance notification is required under
ments of the Marine Mammal Protec- Paragraph 5 of Article VII of the Trea-
tion Act, 16 U.S.C. 1371 et seq. ty.
Impact means impact on the Ant-
§ 8.3 Definitions. arctic environment and dependent and
As used in this part: associated ecosystems.
Act means 16 U.S.C. 2401 et seq., Pub- Initial Environmental Evaluation (IEE)
lic Law 104–227, the Antarctic Science, means a study of the reasonably fore-
Tourism, and Conservation Act of 1996. seeable potential effects of a proposed
Annex I refers to Annex I, Environ- activity on the Antarctic environment
mental Impact Assessment, of the Pro- prepared in accordance with § 8.7.
tocol. More than a minor or transitory impact
Antarctic environment means the nat- has the same meaning as the term
ural and physical environment of Ant- ‘‘significantly’’ as defined in regula-
arctica and its dependent and associ- tions under the National Environ-
ated ecosystems, but excludes social, mental Policy Act at 40 CFR 1508.27.
economic, and other environments. Operator or operators means any per-
Antarctic Treaty area means the area son or persons organizing a nongovern-
south of 60 degrees south latitude. mental expedition to or within Antarc-
Antarctic Treaty Consultative Meeting tica.
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(ATCM) means a meeting of the Parties Person has the meaning given that
to the Antarctic Treaty, held pursuant term in section 1 of title 1, United
to Article IX(1) of the Treaty. States code, and includes any person
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§ 8.4 40 CFR Ch. I (7–1–21 Edition)
subject to the jurisdiction of the (1) Has the potential to adversely af-
United States except that the term fect the Antarctic environment;
does not include any department, agen- (2) May adversely affect climate or
cy, or other instrumentality of the weather patterns;
Federal Government. (3) May adversely affect air or water
Preliminary environmental review quality;
means the environmental review de- (4) May affect atmospheric, terres-
scribed under that term in § 8.6. trial (including aquatic), glacial, or
Preliminary Environmental Review marine environments;
Memorandum (PERM) means the docu- (5) May detrimentally affect the dis-
mentation supporting the conclusion of tribution, abundance, or productivity
the preliminary environmental review of species, or populations of species of
that the impact of a proposed activity fauna and flora;
will be less than minor or transitory on
(6) May further jeopardize endan-
the Antarctic environment.
gered or threatened species or popu-
Protocol means the Protocol on Envi-
lations of such species;
ronmental Protection to the Antarctic
Treaty, done at Madrid October 4, 1991, (7) May degrade, or pose substantial
and all annexes thereto which are in risk to, areas of biological, scientific,
force for the United States. historic, aesthetic, or wilderness sig-
This part means 40 CFR part 8. nificance;
(8) Has highly uncertain environ-
§ 8.4 Preparation of environmental mental effects, or involves unique or
documents, generally. unknown environmental risks; or
(a) Basic information requirements. In (9) Together with other activities,
addition to the information required the effects of any one of which is indi-
pursuant to other sections of this part, vidually insignificant, may have at
all environmental documents shall least minor or transitory cumulative
contain the following: environmental effects.
(1) The name, mailing address, and (c) Type of environmental document.
phone number of the operator; The type of environmental document
(2) The anticipated date(s) of depar- required under this part depends upon
ture of each expedition to Antarctica; the nature and intensity of the envi-
(3) An estimate of the number of per- ronmental impacts that could result
sons in each expedition; from the activity under consideration.
(4) The means of conveyance of expe- A PERM must be prepared by the oper-
dition(s) to and within Antarctica; ator to document the conclusion of the
(5) Estimated length of stay of each operator’s preliminary environmental
expedition in Antarctica; review that the impact of a proposed
(6) Information on proposed landing activity on the Antarctic environment
sites in Antarctica; and will be less than minor or transitory.
(7) Information concerning training (See § 8.6.) An IEE must be prepared by
of staff, supervision of expedition mem- the operator for proposed activities
bers, and what other measures, if any, which may have at least (but no more
that will be taken to avoid or minimize than) a minor or transitory impact on
possible environmental impacts. the Antarctic environment. (See § 8.7.)
(b) Preparation of an environmental A CEE must be prepared by the oper-
document. Unless an operator deter- ator if an IEE indicates, or if it is oth-
mines and documents that a proposed erwise determined, that a proposed ac-
activity will have less than a minor or tivity is likely to have more than a
transitory impact on the Antarctic en- minor or transitory impact on the Ant-
vironment, the operator will prepare arctic environment (See § 8.8.)
an IEE or CEE in accordance with this (d) Incorporation of information, con-
part. In making the determination solidation of environmental documenta-
what level of environmental docu- tion, and multi-year environmental docu-
mentation is appropriate, the operator mentation. (1) An operator may incor-
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Environmental Protection Agency § 8.4
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§ 8.5 40 CFR Ch. I (7–1–21 Edition)
mental documentation fully meets EPA recommends a CEE and one is pre-
deadlines under the Protocol. pared, it will be reviewed under the
time frames set out for a CEE in § 8.8.
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Environmental Protection Agency § 8.8
§ 8.7 Initial environmental evaluation. in place to assess and verify the impact
(a) Submission of IEE to the EPA. Un- of the activity.
less a PERM has been submitted pursu- (2) If a CEE is required, the operator
ant to § 8.6 which meets the environ- must adhere to the time limits applica-
mental documentation requirements ble to such documentation. (See: § 8.8.)
under Article 8 and Annex I to the Pro- In this event EPA, at the operator’s re-
tocol and the provisions of this part or quest, will consult with the operator
a CEE is being prepared, an IEE shall regarding possible changes in the pro-
be submitted by the operator to the posed activity which would allow prep-
EPA no fewer than ninety (90) days be- aration of an IEE.
fore the proposed departure of the ex-
§ 8.8 Comprehensive environmental
pedition. evaluation.
(b) Contents. An IEE shall contain
sufficient detail to assess whether a (a) Preparation of a CEE. Unless a
proposed activity may have more than PERM or an IEE has been submitted
a minor or transitory impact on the and determined to meet the environ-
Antarctic environment and shall in- mental documentation requirements of
clude the following information: this part, the operator shall prepare a
(1) A description of the proposed ac- CEE. A CEE shall contain sufficient in-
tivity, including its purpose, location, formation to enable informed consider-
duration, and intensity; and ation of the reasonably foreseeable po-
(2) Consideration of alternatives to tential environmental effects of a pro-
the proposed activity and any impacts posed activity and possible alter-
that the proposed activity may have on natives to that proposed activity. A
the Antarctic environment, including CEE shall include the following:
consideration of cumulative impacts in (1) A description of the proposed ac-
light of existing and known proposed tivity, including its purpose, location,
activities. duration and intensity, and possible al-
(c) Further environmental review. (1) ternatives to the activity, including
The EPA, in consultation with other the alternative of not proceeding, and
interested federal agencies, will review the consequences of those alternatives;
an IEE to determine whether the IEE (2) A description of the initial envi-
meets the requirements under Annex I ronmental reference state with which
to the Protocol and the provisions of predicted changes are to be compared
this part. The EPA will provide its and a prediction of the future environ-
comments to the operator within thir- mental reference state in the absence
ty (30) days of receipt of the IEE, and of the proposed activity;
the operator will have forty-five (45) (3) A description of the methods and
days to prepare a revised IEE, if nec- data used to forecast the impacts of
essary. Following the final response the proposed activity;
from the operator, EPA may make a (4) Estimation of the nature, extent,
finding that the documentation sub- duration and intensity of the likely di-
mitted does not meet the requirements rect impacts of the proposed activity;
of Article 8 and Annex I of the Protocol (5) A consideration of possible indi-
and the provisions of this part. This rect or second order impacts from the
finding will be made with the concur- proposed activity;
rence of the National Science Founda- (6) A consideration of cumulative im-
tion. If such a notice is required, EPA pacts of the proposed activity in light
will provide it within fifteen (15) days of existing activities and other known
of receiving the final IEE from the op- planned activities;
erator or, if the operator does not pro- (7) Identification of measures, includ-
vide a final IEE, within sixty (60) days ing monitoring programs, that could be
following EPA’s comments on the taken to minimize or mitigate impacts
original IEE. If EPA does not provide of the proposed activity and to detect
notice within these time limits, the op- unforeseen impacts and that could pro-
erator will be deemed to have met the vide early warning of any adverse ef-
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requirements of this part provided that fects of the activity as well as to deal
any required procedures, which may in- promptly and effectively with acci-
clude appropriate monitoring, are put dents;
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§ 8.9 40 CFR Ch. I (7–1–21 Edition)
(8) Identification of unavoidable im- mentation submitted does not meet the
pacts of the proposed activity; requirements of Article 8 and Annex I
(9) Consideration of the effects of the of the Protocol and the provisions of
proposed activity on the conduct of sci- this part. This notification will occur
entific research and on other existing within fifteen (15) days of submittal of
uses and values; the final CEE by the operator if the
(10) An identification of gaps in final CEE is submitted by the operator
knowledge and uncertainties encoun- within the time limits set out in this
tered in compiling the information re- section. If no final CEE is submitted or
quired under this section; the operator fails to meet these time
(11) A non-technical summary of the limits, EPA will provide such notifica-
information provided under this sec- tion sixty (60) days prior to departure
tion; and of the expedition. If EPA does not pro-
(12) The name and address of the per- vide such notice, the operator will be
son or organization which prepared the deemed to have met the requirements
CEE and the address to which com- of this part provided that procedures,
ments thereon should be directed. which include appropriate monitoring,
(b) Submission of Draft CEE to the EPA are put in place to assess and verify the
and Circulation to Other Parties. (1) Any impact of the activity. The EPA will
operator who plans a nongovernmental transmit the CEE, along with a notice
expedition that would require a CEE of any decisions by the operator relat-
must submit a draft of the CEE by De- ing thereto, to the Department of
cember 1 of the preceding year. Within State which shall circulate it to all
fifteen (15) days of receipt of the draft Parties no later than sixty (60) days be-
CEE, EPA will: send it to the Depart- fore commencement of the proposed ac-
ment of State which will circulate it to tivity in the Antarctic Treaty area.
all Parties to the Protocol and forward The EPA will also publish a notice of
it to the Committee for Environmental availability of the final CEE in the
Protection established by the Protocol, FEDERAL REGISTER.
and publish notice of receipt of the (3) No final decision shall be taken to
CEE and request for comments on the proceed with any activity for which a
CEE in the FEDERAL REGISTER, and will CEE is prepared unless there has been
provide copies to any person upon re- an opportunity for consideration of the
quest. The EPA will accept public com- draft CEE by the Antarctic Treaty
ments on the CEE for a period of nine- Consultative Meeting on the advice of
ty (90) days following notice in the the Committee for Environmental Pro-
FEDERAL REGISTER. The EPA, in con- tection, provided that no expedition
sultation with other interested federal need be delayed through the operation
agencies, will evaluate the CEE to de- of paragraph 5 of Article 3 to Annex I
termine if the CEE meets the require- of the Protocol for longer than 15
ments under Article 8 and Annex I to months from the date of circulation of
the Protocol and the provisions of this the draft CEE.
part and will transmit its comments to (c) Decisions based on CEE. The deci-
the operator within 120 days following sion to proceed, based on environ-
publication in the FEDERAL REGISTER mental documentation that meets the
of the notice of availability of the CEE. requirements under Article 8 and
(2) The operator shall send a final Annex I to the Protocol and the provi-
CEE to EPA at least seventy-five (75) sions of this part, rests with the oper-
days before commencement of the pro- ator. Any decision by an operator on
posed activity in the Antarctic Treaty whether to proceed with or modify a
area. The CEE must address and must proposed activity for which a CEE was
include (or summarize) any comments required shall be based on the CEE and
on the draft CEE received from EPA, other relevant considerations.
the public, and the Parties. Following
the final response from the operator, § 8.9 Measures to assess and verify en-
the EPA will inform the operator if vironmental impacts.
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EPA, with the concurrence of the Na- (a) The operator shall conduct appro-
tional Science Foundation, makes the priate monitoring of key environ-
finding that the environmental docu- mental indicators as proposed in the
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Environmental Protection Agency § 8.12
CEE to assess and verify the potential amended by the Act; 16 U.S.C. 2407,
environmental impacts of activities 2408, 2409, and 45 CFR part 672.
which are the subject of a CEE. The op-
erator may also need to carry out mon- § 8.12 Coordination of reviews from
itoring in order to assess and verify the other Parties.
impact of an activity for which an IEE (a) Upon receipt of a draft CEE from
has been prepared. another Party, the Department of
(b) All proposed activities for which State shall publish notice in the FED-
an IEE or CEE has been prepared shall ERAL REGISTER and shall circulate a
include procedures designed to provide copy of the CEE to all interested fed-
a regular and verifiable record of the eral agencies. The Department of State
impacts of these activities, in order, shall coordinate responses from federal
inter alia, to: agencies to the CEE and shall transmit
(1) Enable assessments to be made of the coordinated response to the Party
the extent to which such impacts are which has circulated the CEE. The De-
consistent with the Protocol; and partment of State shall make a copy of
(2) Provide information useful for the CEE available upon request to the
minimizing and mitigating those im- public.
pacts, and, where appropriate, informa- (b) Upon receipt of the annual list of
tion on the need for suspension, can- IEEs from another Party prepared in
cellation, or modification of the activ- accordance with Article 2 of Annex I
ity. and any decisions taken in consequence
§ 8.10 Cases of emergency. thereof, the Department of State shall
circulate a copy to all interested fed-
This part shall not apply to activities eral agencies. The Department of State
taken in cases of emergency relating to shall make a copy of the list of IEEs
the safety of human life or of ships, prepared in accordance with Article 2
aircraft, equipment and facilities of and any decisions taken in consequence
high value, or the protection of the en- thereof available upon request to the
vironment, which require an activity public.
to be undertaken without completion
(c) Upon receipt of a description of
of the procedures set out in this part.
appropriate national procedures for en-
Notice of any such activities which
vironmental impact assessments from
would have otherwise required the
preparation of a CEE shall be provided another Party, the Department of
within fifteen (15) days to the Depart- State shall circulate a copy to all in-
ment of State, as provided in this para- terested federal agencies. The Depart-
graph, for circulation to all Parties to ment of State shall make a copy of
the Protocol and to the Committee on these descriptions available upon re-
Environmental Protection, and a full quest to the public.
explanation of the activities carried (d) Upon receipt from another Party
out shall be provided within forty-five of significant information obtained,
(45) days of those activities. Notifica- and any action taken in consequence
tion shall be provided to: The Director, therefrom from procedures put in place
The Office of Oceans Affairs, OES/OA, with regard to monitoring pursuant to
Room 5805, Department of State, 2201 C Articles 2(2) and 5 of Annex I to the
Street, NW, Washington, DC 20520–7818. Protocol, the Department of State
shall circulate a copy to all interested
§ 8.11 Prohibited acts, enforcement federal agencies. The Department of
and penalties. State shall make a copy of this infor-
(a) It shall be unlawful for any oper- mation available upon request to the
ator to violate this part. public.
(b) An operator who violates any of (e) Upon receipt from another Party
this part is subject to enforcement, of a final CEE, the Department of
which may include civil and criminal State shall circulate a copy to all in-
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§ 9.1 40 CFR Ch. I (7–1–21 Edition)
82.9–82.13 ..................................................... 2060–0170 Control of Emissions From New and In-Use Highway
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Environmental Protection Agency § 9.1
Underground Injection Control Program: Criteria and Labeling Requirements for Pesticides and Devices
Standards
Part 156 ......................................................... 2070–0060
146.10 ............................................................ 2040–0042
146.12–146.15 ............................................... 2040–0042 Packaging Requirements for Pesticides and Devices
146.22–146.25 ............................................... 2040–0042
146.32–146.35 ............................................... 2040–0042 Part 157 ......................................................... 2070–0052
146.52 ............................................................ 2040–0042
146.64 ............................................................ 2040–0042 Data Requirements for Registration
146.66–146.73 ............................................... 2040–0042
Part 158 ......................................................... 2070–0040,
State Underground Injection Control Programs 2070–0060,
2070–0174
147.104 .......................................................... 2040–0042
147.304–147.305 ........................................... 2040–0042 Statements of Policies and Interpretations
147.504 .......................................................... 2040–0042
147.754 .......................................................... 2040–0042 Part 159, subpart D ....................................... 2070–0039
147.904 .......................................................... 2040–0042
147.1154 ........................................................ 2040–0042 Good Laboratory Practice Standards
147.1354–147.1355 ....................................... 2040–0042
147.1454 ........................................................ 2040–0042 Part 160 ......................................................... 2070–0024,
147.1654 ........................................................ 2040–0042 2070–0032,
147.1954 ........................................................ 2040–0042 2070–0040,
147.2103–147.2104 ....................................... 2040–0042 2070–0055,
147.2154 ........................................................ 2040–0042 2070–0060,
147.2402 ........................................................ 2040–0042 2070–0174
147.2905 ........................................................ 2040–0042
147.2912–147.2913 ....................................... 2040–0042 Data Requirements for Registration of Antimicrobial
147.2915 ........................................................ 2040–0042 Pesticides
147.2918 ........................................................ 2040–0042
147.2920–147.2926 ....................................... 2040–0042 Part 161 ......................................................... 2070–0040,
147.2929 ........................................................ 2040–0042 2070–0060,
147.3002–147.3003 ....................................... 2040–0042 2070–0174
147.3006–147.3007 ....................................... 2040–0042
147.3011 ........................................................ 2040–0042 State Registration of Pesticide Products
147.3014–147.3016 ....................................... 2040–0042
147.3101 ........................................................ 2040–0042 162.153 .......................................................... 2070–0182
147.3104–147.3105 ....................................... 2040–0042
147.3107–147.3109 ....................................... 2040–0042 Pesticide Management and Disposal
Hazardous Waste Injection Restrictions
Part 165 ......................................................... 2070–0133
148.5 .............................................................. 2040–0042
Exemption of Federal and State Agencies for Use of
148.20–148.23 ............................................... 2040–0042
Pesticides Under Emergency Conditions
Pesticide Registration and Classification Procedures
Part 166 ......................................................... 2070–0182
152.46 ............................................................ 2070–0060
152.50 ............................................................ 2070–0024, Registration of Pesticide and Active Ingredient Pro-
2070–0040, ducing Establishments, Submission of Pesticide Re-
2070–0060 ports
152.80 ............................................................ 2070–0040,
2070–0060 Part 167 ......................................................... 2070–0078
152.85 ............................................................ 2070–0040,
2070–0060 Statements of Enforcement Policies and Interpretations
152.98 ............................................................ 2070–0060
152.122 .......................................................... 2070–0060 168.75 ............................................................ 2070–0027
152.132 .......................................................... 2070–0044 168.85 ............................................................ 2070–0027,
152.135 .......................................................... 2070–0060 2070–0028,
152.164 .......................................................... 2070–0060 2070–0078
152.404 .......................................................... 2070–0040,
2070–0060 Books and Records of Pesticide Production and
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§ 9.1 40 CFR Ch. I (7–1–21 Edition)
Standards for the Management of Specific Hazardous Standards for Universal Waste Management
Wastes and Specific Types of Hazardous Waste Man-
agement Facilities 273.14 ............................................................ 2050–0145
273.15 ............................................................ 2050–0145
266.70 (b) ...................................................... 2050–0028 273.18 ............................................................ 2050–0145
266.70(c) ........................................................ 2050–0050 273.32 ............................................................ 2050–0145
266.80 ............................................................ 2050–0028 273.34 ............................................................ 2050–0145
266.100 .......................................................... 2050–0073 273.35 ............................................................ 2050–0145
266.102 .......................................................... 2050–0073 273.38 ............................................................ 2050–0145
266.103 .......................................................... 2050–0073 273.39 ............................................................ 2050–0145
266.104 .......................................................... 2050–0073 273.61 ............................................................ 2050–0145
266.106 .......................................................... 2050–0073 273.62 ............................................................ 2050–0145
266.107 .......................................................... 2050–0073 273.80 ............................................................ 2050–0145
266.108 .......................................................... 2050–0073
266.109 .......................................................... 2050–0073 Standards for Management of Used Oil
266.111 .......................................................... 2050–0073
266.112 .......................................................... 2050–0073 279.10–279.11 ............................................... 2050–0124
Appendix IX ................................................... 2050–0073 279.42 ............................................................ 2050–0028,
2050–0124
Land Disposal Restrictions 279.43–279.44 ............................................... 2050–0124
279.46 ............................................................ 2050–0050
268.4–268.5 ................................................... 2050–0085 279.51 ............................................................ 2050–0028
268.6 .............................................................. 2050–0062 279.52–279.55 ............................................... 2050–0124
268.7 .............................................................. 2050–0085 279.56 ............................................................ 2050–0050
268.9 .............................................................. 2050–0085 279.57 ............................................................ 2050–0050,
268.42 ............................................................ 2050–0085 2050–0124
268.44 ............................................................ 2050–0085 279.62 ............................................................ 2050–0028
279.63 ............................................................ 2050–0124
EPA Administered Permit Programs: The Hazardous 279.65–279.66 ............................................... 2050–0050
Waste Permit Program 279.72 ............................................................ 2050–0050
279.73 ............................................................ 2050–0028
270.1 .............................................................. 2050–0028, 279.74–279.75 ............................................... 2050–0050
2050–0034, 279.82 ............................................................ 2050–0124
2050–0009
270.10 ............................................................ 2050–0009 Technical Standards and Corrective Action Require-
270.11 ............................................................ 2050–0034 ments for Owners and Operators of Underground Stor-
270.13 ............................................................ 2050–0034 age Tanks (USTs)
270.14 ............................................................ 2050–0009
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Environmental Protection Agency § 9.1
Part 723 ......................................................... 2070–0012 Control of Emissions From New and In-Use Heavy-Duty
Highway Engines
Reporting Requirements and Review Processes for
Microorganisms 1036.825 ........................................................ 2060–0678
Part 725 ......................................................... 2070–0012 Control of Emissions From New Heavy-Duty Motor
Vehicles
Lead-Based Paint Poisoning Prevention in Certain
Residential Structures
1037.825 ........................................................ 2060–0678
Part 745, subpart E ....................................... 2070–0195 Control of Emissions from New and In-use Nonroad
Part 745, subpart F ....................................... 2070–0151 Compression-Ignition Engines
Part 745, subpart L ........................................ 2070–0195
Part 745, subpart Q ....................................... 2070–0195 1039.825 ........................................................ 2060–0287
Water Treatment Chemicals Control of Emissions From New and In-use Marine
Compression-ignition Engines and Vessels
Part 749 ......................................................... 2070–0193
1042.825 ........................................................ 2060–0827
Polychlorinated Biphenyls (PCBs) Manufacturing, Proc-
essing, Distribution in Commerce, and Use Prohibi- Control of NOX, SOX, and PM Emissions From Marine
tions Engines and Vessels Subject to the Marpol Protocol
Test Rules
1054.825 ........................................................ 2060–0338
Part 790 ......................................................... 2070–0033
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§ 10.3 40 CFR Ch. I (7–1–21 Edition)
personal injury, or for death, alleged to sert such a claim under applicable
have occurred by reason of the inci- State law.
dent. A claim which should have been (d) A claim for loss wholly com-
presented to EPA, but which was mis- pensated by an insurer with the rights
takenly addressed to or filed with an- of a subrogee may be presented by the
other Federal agency, shall be deemed insurer. A claim for loss partially com-
to be presented to EPA as of the date pensated by an insurer with the rights
that the claim is received by EPA. A of a subrogee may be presented by the
claim mistakenly addressed to or filed insurer or the insured individually as
with EPA shall forthwith be trans- their respective interests appear, or
ferred to the appropriate Federal agen- jointly. Whenever an insurer presents a
cy, if ascertainable, or returned to the claim asserting the rights of a
claimant. subrogee, he shall present with his
(b) A claim presented in compliance claim appropriate evidence that he has
with paragraph (a) of this section may the rights of a subrogee.
be amended by the claimant at any (e) A claim presented by an agent or
time prior to final action by the Ad- legal representative shall be presented
ministrator, or his designee, or prior to in the name of the claimant, be signed
the exercise of the claimant’s option to by the agent or legal representative,
bring suit under 28 U.S.C. 2675(a). show the title or legal capacity of the
Amendments shall be submitted in person signing, and be accompanied by
writing and signed by the claimant or evidence of his authority to present a
his duly authorized agent or legal rep- claim on behalf of the claimant as
resentative. Upon the timely filing of agent, executor, administrator, parent,
an amendment to a pending claim, guardian, or other representative.
EPA shall have 6 months in which to
make a final disposition of the claim as § 10.4 Evidence to be submitted.
amended and the claimant’s option (a) Death. In support of a claim based
under 28 U.S.C. 2675(a) shall not accrue on death, the claimant may be required
until 6 months after the filing of an to submit the following evidence or in-
amendment. formation:
(c) Forms may be obtained and (1) An authenticated death certifi-
claims may be filed with the EPA of- cate or other competent evidence show-
fice having jurisdiction over the em- ing cause of death, date of death, and
ployee involved in the accident or inci- age of the decedent.
dent, or with the EPA Claims Officer, (2) Decedent’s employment or occu-
Office of General Counsel (2311), 1200 pation at time of death, including his
Pennsylvania Ave., NW., Washington, monthly or yearly salary or earnings
DC 20460. (if any), and the duration of his last
employment or occupation.
[38 FR 16868, June 27, 1973, as amended at 51 (3) Full names, addresses, birth dates,
FR 25832, July 16, 1986] kinship, and marital status of the dece-
dent’s survivors, including identifica-
§ 10.3 Administrative claims; who may
file. tion of those survivors who were de-
pendent for support upon the decedent
(a) A claim for injury to or loss of at the time of his death.
property may be presented by the (4) Degree of support afforded by the
owner of the property interest which is decendent to each survivor dependent
the subject of the claim, his duly au- upon him for support at the time of his
thorized agent, or his legal representa- death.
tive. (5) Decedent’s general physical and
(b) A claim for personal injury may mental condition before death.
be presented by the injured person, his (6) Itemized bills for medical and bur-
duly authorized agent, or his legal rep- ial expenses incurred by reason of the
resentative. incident causing death, or itemized re-
(c) A claim based on death may be ceipts of payments for such expenses.
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presented by the executor or adminis- (7) If damages for pain and suffering
trator of the decedent’s estate or by prior to death are claimed, a physi-
any other person legally entitled to as- cian’s detailed statement specifying
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Environmental Protection Agency § 10.6
the injuries suffered, duration of pain ther the personal injury or the dam-
and suffering, any drugs administered ages claimed.
for pain and the decedent’s physical (c) Property Damage. In support of a
condition in the interval between in- claim for damage to or loss of property,
jury and death. real or personal, the claimant may be
(8) Any other evidence or information required to submit the following evi-
which may have a bearing on either the dence or information:
responsibility of the United States for (1) Proof of ownership.
the death or the damages claimed. (2) A detailed statement of the
(b) Personal Injury. In support of a amount claimed with respect to each
claim for personal injury, including item of property.
(3) An itemized receipt of payment
pain and suffering, the claimant may
for necessary repairs or itemized writ-
be required to submit the following
ten estimates of the cost of such re-
evidence or information:
pairs.
(1) A written report by his attending (4) A statement listing date of pur-
physician or dentist setting forth the chase, purchase price, market value of
nature and extent of the injury, nature the property as of date of damage, and
and extent of treatment, any degree of salvage value, where repair is not eco-
temporary or permanent disability, the nomical.
prognosis, period of hospitalization, (5) Any other evidence or information
and any diminished earning capacity. which may have a bearing on the re-
In addition, the claimant may be re- sponsibility of the United States either
quired to submit to a physical or men- for the injury to or loss of property or
tal examination by a physician em- for the damage claimed.
ployed or designated by EPA. A copy of (d) Time limit. All evidence required
the report of the examining physician to be submitted by this section shall be
shall be made available to the claimant furnished by the claimant within a rea-
upon the claimant’s written request sonable time. Failure of a claimant to
provided that the claimant has, upon furnish evidence necessary to a deter-
request, furnished the report referred mination of his claim within three
to in the first sentence of this subpara- months after a request therefor has
graph and has made or agrees in writ- been mailed to his last known address
ing to make available to EPA any may be deemed an abandonment of the
other physician’s reports previously or claim. The claim may be thereupon
thereafter made of the physical or disallowed.
mental condition which is the subject
matter of his claim. § 10.5 Investigation, examination, and
determination of claims.
(2) Itemized bills for medical, dental,
hospital and related expenses incurred, The EPA Claims Officer adjusts, de-
or itemized receipts of payment for termines, compromises and settles all
such expenses. administrative tort claims filed with
(3) If the prognosis reveals the neces- EPA. In carrying out these functions,
sity for future treatment, a statement the EPA Claims Officer makes such in-
of expected duration of and expenses vestigations as are necessary for a de-
for such treatment. termination of the validity of the
(4) If a claim is made for loss of time claim. The decision of the EPA Claims
from employment, a written statement Officer is a final agency decision of
from his employer showing actual time purposes of 28 U.S.C. 2675.
lost from employment, whether he is a [51 FR 25832, July 16, 1986]
full or part-time employee, and wages
or salary actually lost. § 10.6 Final denial of claim.
(5) If a claim is made for loss of in- (a) Final denial of an administrative
come and the claimant is self-em- claim shall be in writing and sent to
ployed, documentary evidence showing the claimant, his attorney, or legal
the amount of earnings actually lost. representative by certified or reg-
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(6) Any other evidence or information istered mail. The notification of final
which may have a bearing on the re- denial may include a statement of the
sponsibility of the United States for ei- reasons for the denial and shall include
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§ 10.7 40 CFR Ch. I (7–1–21 Edition)
claim has been presented, and shall volved in litigation based on a claim
constitute a complete release of all arising out of the same incident or
claims against either the United States transaction.
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Environmental Protection Agency § 11.3
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§ 11.4 40 CFR Ch. I (7–1–21 Edition)
(2) Reviewing and approving, as the dicate the degree of protection re-
representative of the contracting of- quired.
fices, the DD Form 254, Contract Secu- (1) Top Secret. Top Secret refers to
rity Classification Specification, issued national security information or mate-
to contractors. rial which requires the highest degree
(d) Employees; (1) Those employees of protection. The test for assigning
generating documents incorporating Top Secret classification shall be
classified information properly origi- whether its unauthorized disclosure
nated by other agencies of the Federal could reasonably be expected to cause
Government are responsible for assur- exceptionally grave damage to the na-
ing that the documents are marked in tional security. Examples of ‘‘excep-
a manner consistent with security clas- tionally grave damage’’ include armed
sification assignments. hostilities against the United States or
(2) Those employees preparing infor- its allies; disruption of foreign rela-
mation for public release are respon- tions vitally affecting the national se-
sible for assuring that such informa- curity; the compromise of vital na-
tion is reviewed to eliminate classified tional defense plans or complex
information. cryptologic and communications intel-
(3) All employees are responsible for ligence systems; the revelation of sen-
bringing to the attention of the Direc- sitive intelligence operations; and the
tor, Security and Inspection Division, disclosure of scientific or technological
any security classification problems developments vital to national secu-
needing resolution. rity. This classification shall be used
with the utmost restraint.
§ 11.4 Definitions. (2) Secret. Secret refers to that na-
tional security information or material
(a) Classified information. Official in- which requires a substantial degree of
formation which has been assigned a protection. The test for assigning Se-
security classification category in the cret classification shall be whether its
interest of the national defense or for- unauthorized disclosure could reason-
eign relations of the United States. ably be expected to cause serious dam-
(b) Classified material. Any document, age to the national security. Examples
apparatus, model, film, recording, or of ‘‘serious damage’’ include disruption
any other physical object from which of foreign relations significantly af-
classified information can be derived fecting the national security; signifi-
by study, analysis, observation, or use cant impairment of a program or pol-
of the material involved. icy directly related to the national se-
(c) Marking. The act of physically in- curity; revelation of significant mili-
dicating the classification assignment tary plans or intelligence operations;
on classified material. and compromise of scientific or techno-
(d) National security information. As logical developments relating to na-
used in this order this term is synony- tional security. The classification Se-
mous with ‘‘classified information.’’ It cret shall be sparingly used.
is any information which must be pro- (3) Confidential. Confidential refers to
tected against unauthorized disclosure that national security information or
in the interest of the national defense material which requires protection.
or foreign relations of the United The test for assigning Confidential
States. classification shall be whether its un-
(e) Security classification assignment. authorized disclosure could reasonably
The prescription of a specific security be expected to cause damage to the na-
classification for a particular area or tional security.
item of information. The information
involved constitutes the sole basis for § 11.5 Procedures.
determining the degree of classifica- (a) General. Agency instructions on
tion assigned. access, marking, safekeeping, account-
(f) Security classification category. The ability, transmission, disposition, and
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§ 11.6 40 CFR Ch. I (7–1–21 Edition)
disclosure under section 552(b) of Title and declassify information and mate-
5 U.S.C. (Freedom of Information Act) rial which has been classified by a
or other provision of law. President, his White House Staff or
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Environmental Protection Agency § 12.103
Service. Section 504 regulations appli- person who has a physical or mental
cable to recipients of financial assist- impairment that substantially limits
ance from the Environmental Protec- one or more major life activities, has a
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§§ 12.104–12.109 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 12.130
the evaluation and recommendations, same result, to gain the same benefit,
direct that certain remedial actions be or to reach the same level of achieve-
taken as he/she deems appropriate. ment as that provided to others;
(d) The agency shall, for at least (iv) Provide different or separate aid,
three years following completion of the benefits, or services to individuals with
evaluation required under paragraph handicaps or to any class of individuals
(b) of this section, maintain on file and with handicaps than is provided to oth-
make available for public inspection: ers unless such action is necessary to
(1) A list of the interested persons provide qualified individuals with
consulted; handicaps with aid, benefits, or serv-
(2) A description of the areas exam- ices that are as effective as those pro-
ined and any problems identified; and vided to others;
(3) A description of any modifications (v) Deny a qualified individual with
made. handicaps the opportunity to partici-
pate as a member of planning or advi-
§ 12.111 Notice. sory boards; or
The agency shall make available to (vi) Otherwise limit a qualified indi-
employees, unions representing em- vidual with handicaps in the enjoy-
ployees, applicants, participants, bene- ment of any right, privilege, advan-
ficiaries, and other interested persons tage, or opportunity enjoyed by others
such information regarding the provi- receiving the aid, benefit, or service.
sions of this part and its applicability (2) The agency may not deny a quali-
to the programs or activities conducted fied individual with handicaps the op-
by the agency, and make such informa- portunity to participate in programs or
tion available to them in such manner activities that are not separate or dif-
as the agency head finds necessary to ferent, despite the existence of permis-
apprise such persons of the protections sibly separate or different programs or
against discrimination assured them activities.
by section 504 and this regulation. (3) The agency may not, directly or
through contractual or other arrange-
§§ 12.112–12.129 [Reserved] ments, utilize criteria or methods of
administration the purpose or effect of
§ 12.130 General prohibitions against which would—
discrimination. (i) Subject qualified individuals with
(a) No qualified individual with handicaps to discrimination on the
handicaps shall, on the basis of handi- basis of handicap; or
cap, be excluded from participation in, (ii) Defeat or substantially impair ac-
be denied the benefits of, or otherwise complishment of individuals with
be subjected to discrimination under handicaps.
any program or activity conducted by (4) The agency may not, in deter-
the agency. mining the site or location of a facil-
(b)(1) The agency, in providing any ity, make selections the purpose or ef-
aid, benefit, or service, may not, di- fect of which would—
rectly or through contractual, licens- (i) Exclude individuals with handi-
ing, or other arrangements, on the caps from, deny them the benefits of,
basis of handicap— or otherwise subject them to discrimi-
(i) Deny a qualified individual with nation under any program or activity
handicaps the opportunity to partici- conducted by the agency; or
pate in or benefit from the aid, benefit, (ii) Defeat or substantially impair
or service; the accomplishment of the objectives
(ii) Afford a qualified individual with of a program or activity with respect
handicaps an opportunity to partici- to individuals with handicaps.
pate in or benefit from the aid, benefit, (5) The agency, in the selection of
or service that is not equal to that af- procurement contractors, may not use
forded others; criteria that subject qualified individ-
(iii) Provide a qualified individual uals with handicaps to discrimination
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§§ 12.131–12.139 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 12.160
with this section. The agency, in mak- § 12.151 Program accessibility: New
ing alterations to existing buildings, construction and alterations.
shall meet accessibility requirements Each building or part of a building
to the extent compelled by the Archi- that is constructed or altered by, on
tectural Barriers Act of 1968, as amend- behalf of, or for the use of the agency
ed (42 U.S.C. 4151–4157), and any regula- shall be designed, constructed, or al-
tions implementing it. In choosing tered so as to be readily accessible to
among available methods for meeting and usable by individuals with handi-
the requirements of this section, the caps. The definitions, requirements,
agency shall give priority to those and standards of the Architectural Bar-
methods that offer programs and ac- riers Act (42 U.S.C. 4151–4157), as estab-
tivities to qualified individuals with lished in 41 CFR 101–19.600 to 101–19.607,
handicaps in the most integrated set- apply to buildings covered by this sec-
ting appropriate. tion.
(c) Time period for compliance. The
§§ 12.152–12.159 [Reserved]
agency shall comply with the obliga-
tions established under this section by § 12.160 Communications.
November 13, 1987, except that where
structural changes in facilities are un- (a) The agency shall take appropriate
dertaken, such changes shall be made steps to ensure effective communica-
by September 14, 1990, but in any event tion with applicants, participants, per-
sonnel of other Federal entities, and
as expeditiously as possible.
members of the public.
(d) Transition plan. In the event that
(1) The agency shall furnish appro-
structural changes to facilities will be
priate auxiliary aids where necessary
undertaken to achieve program acces-
to afford an individual with handicaps
sibility, the agency shall develop, by an equal opportunity to participate in,
March 14, 1988, a transition plan set- and enjoy the benefits of, a program or
ting forth the steps necessary to com- activity conducted by the agency.
plete such changes. The agency shall (i) In determining what type of auxil-
provide an opportunity to interested iary aid is necessary, the agency shall
persons, including individuals with give primary consideration to the re-
handicaps or organizations rep- quests of the individuals with handi-
resenting individuals with handicaps to caps.
participate in the development of the (ii) The agency need not provide indi-
transition plan by submitting com- vidually prescribed devices, readers for
ments (both oral and written). A copy personal use or study, or other devices
of the transition plan shall be made of a personal nature.
available for public inspection. The (2) Where the agency communicates
plan shall, at a minimum— with applicants and beneficiaries by
(1) Identify physical obstacles in the telephone, telecommunication devices
agency’s facilities that limit the acces- for deaf persons (TDD’s) or equally ef-
sibility of its programs or activities to fective telecommunication systems
individuals with handicaps; shall be used.
(2) Describe in detail the methods (b) The agency shall ensure that in-
that will be used to make the facilities terested persons, including persons
accessible; with impaired vision or hearing, can
(3) Specify the schedule for taking obtain information as to the existence
the steps necessary to achieve compli- and location of accessible services, ac-
ance with this section and, if the time tivities, and facilities.
period of the transition plan is longer (c) The agency shall provide signage
at a primary entrance to each of its in-
than one year, identify steps that will
accessible facilities, directing users to
be taken during each year of the tran-
a location at which they can obtain in-
sition period; and
formation about accessible facilities.
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(4) Indicate the official responsible The international symbol for accessi-
for implementation of the plan. bility shall be used at each primary en-
trance of an accessible facility.
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§§ 12.161–12.169 40 CFR Ch. I (7–1–21 Edition)
(d) This section does not require the this time period for good cause. The
agency to take any action that it can agency shall accept and investigate all
demonstrate would result in a funda- complete complaints for which it has
mental alteration in the nature of a jurisdiction.
program or activity or in undue finan- (e) If the agency receives a complaint
cial and administrative burdens. In over which it does not have jurisdic-
those circumstances where agency per- tion, it shall promptly notify the com-
sonnel believe that the proposed action plainant and shall make reasonable ef-
would fundamentally alter the program forts to refer the complaint to the ap-
or activity or would result in undue fi- propriate Government entity.
nancial and administrative burdens, (f) The agency shall notify the Archi-
the agency has the burden of proving tectural and Transportation Barriers
that compliance with § 12.160 would re- Compliance Board upon receipt of any
sult in such alteration or burdens. The complaint alleging that a building of
decision that compliance would result facility that is subject to the Architec-
in such alteration or burdens must be tural Barriers Act of 1968, as amended
made by the agency head or designee (42 U.S.C. 4151–4157), is not readily ac-
after considering all agency resources cessible to and usable by individuals
available for use in the funding and op- with handicaps.
eration of the conducted program or (g) Within 180 days of the receipt of a
activity, and must be accompanied by complete complaint for which it has ju-
a written statement of the reasons for risdiction, the agency shall notify the
reaching that conclusion. If an action complainant of the results of the inves-
required to comply with this section tigation in a letter containing—
would result in such an alteration or (1) Findings of fact and conclusions
such burdens, the agency shall take of law;
any other action that would not result (2) A description of a remedy for each
in such an alteration or such burdens violation found; and
but would nevertheless ensure that, to (3) A notice of the right to appeal.
the maximum extent possible, individ- (h) Appeals of the findings of fact and
uals with handicaps receive the bene- conclusions of law or remedies must be
fits and services of the program or ac- filed by the complainant within 90 days
tivity. of receipt from the agency of the letter
required by paragraph (g) of this sec-
§§ 12.161–12.169 [Reserved] tion. The agency may extend this time
for good cause.
§ 12.170 Compliance procedures. (i) Timely appeals shall be accepted
(a) Except as provided in paragraph and processed by the Administrator or
(b) of this section, this section applies a designee.
to all allegations of discrimination on (j) The Administrator or a designee
the basis of handicap in programs or shall notify the complainant of the re-
activities conducted by the agency. sults of the appeal within 60 days of the
(b) The agency shall process com- receipt of the request. If the Adminis-
plaints alleging violations of section trator or designee determines that ad-
504 with respect to employment accord- ditional information is needed from the
ing to the procedures established by complainant, he or she shall have 60
the Equal Employment Opportunity days from the date of receipt of the ad-
Commission in 29 CFR part 1613 pursu- ditional information to make his or her
ant to section 501 of the Rehabilitation determination on the appeal.
Act of 1973 (29 U.S.C. 791). (k) The time limits cited in para-
(c) Responsibility for coordinating graphs (g) and (j) of this section above
implementation of this section shall be may be extended with the permission
vested in the Director of the Office of of the Assistant Attorney General.
Civil Rights, EPA or his/her designate. (l) The agency may delegate its au-
(d) The complainant may file a com- thority for conducting complaint in-
plete complaint at any EPA office. All vestigations to other Federal agencies,
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complete complaints must be filed except that the authority for making
within 180 days of the alleged act of the final determination may not be
discrimination. The agency may extend delegated to another agency.
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Environmental Protection Agency § 13.2
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§ 13.3 40 CFR Ch. I (7–1–21 Edition)
the United States or a person or entity referral to the General Accounting Of-
with legal responsibility for assuming fice (GAO).
the debtor’s obligation.
(d) Agency means the United States § 13.4 Other remedies.
Environmental Protection Agency. (a) This regulation does not super-
(e) Administrator means the Adminis- sede or require omission or duplication
trator of EPA or an EPA employee or of administrative proceedings required
official designated to act on the Ad- by contract, statute, regulation or
ministrator’s behalf. other Agency procedures, e.g., resolu-
(f) Administrative offset means the tion of audit findings under grants or
withholding of money payable by the contracts, informal grant appeals, for-
United States to, or held by the United mal appeals, or review under a procure-
States for, a person to satisfy a debt ment contract.
the person owes the Government. (b) The remedies and sanctions avail-
(g) Creditor agency means the Federal able to the Agency under this regula-
agency to which the debt is owed. tion for collecting debts are not in-
(h) Disposable pay means that part of tended to be exclusive. The Agency
current basic pay, special pay, incen- may impose, where authorized, other
tive pay, retired pay, retainer pay, or appropriate sanctions upon a debtor for
in the case of an employee not entitled inexcusable, prolonged or repeated fail-
to basic pay, other authorized pay re- ure to pay a debt. For example, the
maining after the deduction of any Agency may stop doing business with a
amount described in 5 CFR 581.105 (b) grantee, contractor, borrower or lend-
through (f). These deductions include, er; convert the method of payment
but are not limited to: Social security under a grant or contract from an ad-
withholdings; Federal, State and local vance payment to a reimbursement
tax withholdings; health insurance pre- method; or revoke a grantee’s or con-
miums; retirement contributions; and tractor’s letter-of-credit.
life insurance premiums. § 13.5 Claims involving criminal activi-
(i) Employee means a current em- ties or misconduct.
ployee of the Federal Government in-
(a) The Administrator will refer cases
cluding a current member of the Armed
of suspected criminal activity or mis-
Forces.
conduct to the EPA Office of Inspector
(j) Person means an individual, firm,
General. That office has the responsi-
partnership, corporation, association
bility for investigating or referring the
and, except for purposes of administra-
matter, where appropriate, to the De-
tive offsets under subpart C and inter-
partment of Justice (DOJ), and/or re-
est, penalty and administrative costs
turning it to the Administrator for fur-
under subpart B of this regulation, in-
ther actions. Examples of activities
cludes State and local governments
which should be referred are matters
and Indian tribes and components of
involving fraud, anti-trust violations,
tribal governments.
embezzlement, theft, false claims or
(k) Employee salary offset means the misuse of Government money or prop-
administrative collection of a debt by erty.
deductions at one or more officially es- (b) The Administrator will not ad-
tablished pay intervals from the cur- ministratively compromise, terminate,
rent pay account of an employee with- suspend or otherwise dispose of debts
out the employee’s consent. involving criminal activity or mis-
(l) Waiver means the cancellation, re- conduct without the approval of DOJ.
mission, forgiveness or non-recovery of
a debt or debt-related charge as per- § 13.6 Subdivision of claims not au-
mitted or required by law. thorized.
A claim will not be subdivided to
§ 13.3 Interagency claims. avoid the $20,000 limit on the Agency’s
This regulation does not apply to authority to compromise, suspend, or
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debts owed EPA by other Federal agen- terminate a debt. A debtor’s liability
cies. Such debts will be resolved by ne- arising from a particular transaction
gotiation between the agencies or by or contract is a single claim.
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Environmental Protection Agency § 13.11
§ 13.7 Omission not a defense. (4) That interest charges and, except
Failure by the Administrator to com- for State and local governments and
ply with any provision of this regula- Indian tribes, penalty charges and ad-
tion is not available to a debtor as a ministrative costs may be assessed
defense against payment of a debt. against a delinquent debt;
(5) Of any rights available to the
Subpart B—Collection debtor to dispute the validity of the
debt or to have recovery of the debt
§ 13.8 Collection rule. waived (citing the available review or
(a) The Administrator takes action waiver authority, the conditions for re-
to collect all debts owed the United view or waiver, and the effects of the
States arising out of EPA activities review or waiver request on the collec-
and to reduce debt delinquencies. Col- tion of the debt), and of the possibility
lection actions may include sending of assessment of interest, penalty and
written demands to the debtor’s last administrative costs; and
known address. Written demand may (6) The address, telephone number
be preceded by other appropriate ac- and name of the person available to
tion, including immediate referral to discuss the debt.
DOJ for litigation, when such action is (b) EPA will respond promptly to
necessary to protect the Government’s communications from the debtor. Re-
interest. The Administrator may con- sponse generally will be within 20 days
tact the debtor by telephone, in person of receipt of communication from the
and/or in writing to demand prompt debtor.
payment, to discuss the debtor’s posi- (c) Subsequent demand letters also
tion regarding the existence, amount will advise the debtor of any interest,
or repayment of the debt, to inform the
penalty or administrative costs which
debtor of its rights (e.g., to apply for
have been assessed and will advise the
waiver of the indebtedness or to have
an administrative review) and of the debtor that the debt may be referred to
basis for the debt and the consequences a credit reporting agency (see § 13.14), a
of nonpayment or delay in payment. collection agency (see § 13.13) or to DOJ
(b) The Administrator maintains an (see § 13.33) if it is not paid.
administrative file for each debt and/or
§ 13.10 Aggressive collection actions;
debtor which documents the basis for
documentation.
the debt, all administrative collection
actions regarding the debt (including (a) EPA takes actions and effective
communications to and from the debt- follow-up on a timely basis to collect
or) and its final disposition. Informa- all claims of the United States for
tion from a debt file relating to an in- money and property arising out of
dividual may be disclosed only for pur- EPA’s activities. EPA cooperates with
poses which are consistent with this other Federal agencies in their debt
regulation, the Privacy Act of 1974 and collection activities.
other applicable law. (b) All administrative collection ac-
tions are documented in the claim file,
§ 13.9 Initial notice.
and the bases for any compromise, ter-
(a) When the Administrator deter- mination or suspension of collection
mines that a debt is owed EPA, he pro- actions is set out in detail. This docu-
vides a written initial notice to the mentation, including the Claims Col-
debtor. Unless otherwise provided by lection Litigation Report required
agreement, contract or order, the ini- § 13.33, is retained in the appropriate
tial notice informs the debtor:
debt file.
(1) Of the amount, nature and basis of
the debt; § 13.11 Interest, penalty and adminis-
(2) That payment is due immediately trative costs.
upon receipt of the notice;
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(3) That the debt is considered delin- (a) Interest. EPA will assess interest
quent if it is not paid within 30 days of on all delinquent debts unless prohib-
the date mailed or hand-delivered; ited by statute, regulation or contract.
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§ 13.12 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 13.16
is in the best interest of the Govern- the information authorized for disclo-
ment. Where EPA determines that sure by this subsection; and
there is a need to contract for collec- (iii) The debtor can request a com-
tion services it will— plete explanation of the claim, can dis-
(a) Retain sole authority to resolve pute the information in EPA’s records
any dispute by the debtor of the valid- concerning the claim, and can file for
ity of the debt, to compromise the an administrative review, waiver or re-
debt, to suspend or terminate collec- consideration of the claim, where ap-
tion action, to refer the debt to DOJ plicable.
for litigation, and to take any other (c) Before information is submitted
action under this part which does not to a credit reporting agency, EPA will
result in full collection of the debt; provide a written statement to the re-
(b) Require the contractor to comply porting agency that all required ac-
with the Privacy Act of 1974, as amend- tions have been taken. Additionally,
ed, to the extent specified in 5 U.S.C. EPA will, thereafter, ensure that the
552a(m), with applicable Federal and credit reporting agency is promptly in-
State laws pertaining to debt collec- formed of any substantive change in
tion practices (e.g., the Fair Debt Col- the conditions or amounts of the debt,
lection Practices Act (15 U.S.C. 1692 et and promptly verify or correct infor-
seq.)), and with applicable regulations mation relevant to the claim.
of the Internal Revenue Service; (d) If a debtor disputes the validity of
(c) Require the contractor to account the debt, the credit reporting agency
accurately and fully for all amounts will refer the matter to the appropriate
collected; and EPA official. The credit reporting
(d) Require the contractor to provide agency will exclude the debt from its
to EPA, upon request, all data and re- reports until EPA certifies in writing
ports contained in its files relating to that the debt is valid.
its collection actions on a debt. § 13.15 Taxpayer information.
§ 13.14 Use of credit reporting agen- (a) The Administrator may obtain a
cies. debtor’s current mailing address from
EPA reports delinquent debts to ap- the Internal Revenue Service.
(b) Addresses obtained from the In-
propriate credit reporting agencies.
ternal Revenue Service will be used by
(a) EPA provides the following infor-
the Agency, its officers, employees,
mation to the reporting agencies:
agents or contractors and other Fed-
(1) A statement that the claim is eral agencies only to collect or dispose
valid and is overdue; of debts, and may be disclosed to credit
(2) The name, address, taxpayer iden- reporting agencies only for the purpose
tification number and any other infor- of their use in preparing a commercial
mation necessary to establish the iden- credit report on the taxpayer for use by
tity of the debtor; EPA.
(3) The amount, status and history of
the debt; and § 13.16 Liquidation of collateral.
(4) The program or pertinent activity Where the Administrator holds a se-
under which the debt arose. curity instrument with a power of sale
(b) Before disclosing debt informa- or has physical possession of collateral,
tion, EPA will: he may liquidate the security or collat-
(1) Take reasonable action to locate eral and apply the proceeds to the over-
the debtor if a current address is not due debt. EPA will exercise this right
available; and where the debtor fails to pay within a
(2) If a current address is available, reasonable time after demand, unless
notify the debtor by certified mail, re- the cost of disposing of the collateral is
turn receipt requested, that: disproportionate to its value or special
(i) The designated EPA official has circumstances require judicial fore-
reviewed the claim and has determined closure. However, collection from other
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§ 13.17 40 CFR Ch. I (7–1–21 Edition)
surety or insurance company unless ex- default. The size and frequency of in-
pressly required by contract or statute. stallment payments will bear a reason-
The Administrator will give the debtor able relation to the size of the debt and
reasonable notice of the sale and an ac- the debtor’s ability to pay. The install-
counting of any surplus proceeds and ment payments will be sufficient in
will comply with any other require- size and frequency to liquidate the debt
ments of law or contract. in not more than 3 years, unless the
§ 13.17 Suspension or revocation of li- Administrator determines that a
cense or eligibility. longer period is required. Installment
payments of less than $50 per month
When collecting statutory penalties,
generally will not be accepted, but may
forfeitures, or debts for purposes of en-
forcement or compelling compliance, be accepted where the debtor’s finan-
the Administrator may suspend or re- cial or other circumstances justify. If
voke licenses or other privileges for the debt is unsecured, the Adminis-
any inexcusable, prolonged or repeated trator may require the debtor to exe-
failure of a debtor to pay a claim. Addi- cute a confess-judgment note with a
tionally, the Administrator may sus- tax carry-forward and a tax carry-back
pend or disqualify any contractor, provision. Where the Administrator se-
lender, broker, borrower, grantee or cures a confess-judgment note, the Ad-
other debtor from doing business with ministrator will provide the debtor a
EPA or engaging in programs EPA written explanation of the con-
sponsors or funds if a debtor fails to sequences of the debtor’s signing the
pay its debts to the Government within note.
a reasonable time. Debtors will be noti- (b) If a debtor owes more than one
fied before such action is taken and ap- debt and designates how a voluntary
plicable suspension or debarment pro- installment payment is to be applied
cedures will be used. The Adminis- among the debts, that designation will
trator will report the failure of any be approved if the Administrator deter-
surety to honor its obligations to the mines that the designation is in the
Treasury Department for action under best interest of the United States. If
6 U.S.C. 11.
the debtor does not designate how the
§ 13.18 Installment payments. payment is to be applied, the Adminis-
trator will apply the payment to the
(a) Whenever, feasible, and except as
various debts in accordance with the
otherwise provided by law, debts owed
best interest of the United States, pay-
to the United States, together with in-
terest, penalty and administrative ing special attention to applicable
costs, as required by § 13.11, will be col- statutes of limitations.
lected in a single payment. However,
§ 13.19 Analysis of costs; automation;
where the Administrator determines prevention of overpayments, delin-
that a debtor is financially unable to quencies or defaults.
pay the indebtedness in a single pay-
ment or that an alternative payment (a) The Administrator may periodi-
mechanism is in the best interest of cally compare EPA’s costs in handling
the United States, the Administrator debts with the amounts it collects,
may approve repayment of the debt in (b) The Administrator may periodi-
installments. The debtor has the bur- cally consider the need, feasibility, and
den of establishing that it is finan- cost effectiveness of automated debt
cially unable to pay the debt in a sin- collection operations.
gle payment or that an alternative (c) The Administrator may establish
payment mechanism is warranted. If internal controls to identify the causes
the Administrator agrees to accept of overpayments and delinquencies and
payment by installments, the Adminis- may issue procedures to prevent future
trator may require a debtor to execute occurrences of the identified problems.
a written agreement which specifies all
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Environmental Protection Agency § 13.20
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§ 13.21 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 13.22
notice, unless this would compromise costs and penalty charges where the
the Government’s ultimate ability to entire debt is not waived or termi-
resolve the debt); nated, which are later waived or found
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§ 13.22 40 CFR Ch. I (7–1–21 Edition)
not owed to the United States will be (2) Written decisions provided after a
promptly refunded to the employee. request for hearing will, at a minimum,
(d) Request for hearing. An employee state the facts evidencing the nature
may request a hearing by filing a writ- and origin of the alleged debt; and the
ten request directly with the Director, hearing official’s analysis, findings and
Financial Management Division (2734R) conclusions.
, U.S. Environmental Protection Agen- (3) The decision of the hearing offi-
cy, 1200 Pennsylvania Ave., NW., Wash- cial is final and binding on the parties.
ington, DC 20460. The request must (g) Request for waiver. In certain in-
state the bases upon which the em- stances, an employee may have a stat-
ployee disputes the proposed collection utory right to request a waiver of over-
of the debt. The request must be signed payment of pay or allowances, e.g., 5
by the employee and be received by U.S.C. 5584 or 5 U.S.C. 5724(i). When an
EPA within 15 days of the employee’s employee requests waiver consider-
receipt of the notification of proposed ation under a right authorized by stat-
deductions. The employee should sub- ute, further collection on the debt will
mit in writing all facts, evidence and be suspended until a final administra-
witnesses which support his/her posi- tive decision is made on the waiver re-
tion to the Director, Financial Man- quest. However, where it appears that
agement Division, within 15 days of the the Government’s ability to recover
date of the request for a hearing. The the debt may be adversely affected be-
Director, Financial Management Divi- cause of the employee’s resignation,
sion, will arrange for the services of a termination or other action, suspen-
hearing official not under the control sion of recovery is not required. During
of the Administrator and will provide the period of the suspension, interest,
the hearing official with all documents penalty charges and administrative
relating to the claim. costs will not be assessed against the
(e) Requests for hearing made after time debt. The Agency will not duplicate,
expires. Late requests for a hearing for purposes of salary offset, any of the
may be accepted if the employee can procedures already provided the debtor
show that the delay in filing the re- under a request for waiver.
quest for a hearing was due to cir- (h) Method and source of collection. A
cumstances beyond the employee’s debt will be collected in a lump-sum or
control. by installment deductions at estab-
(f) Form of hearing, written response lished pay intervals from an employ-
and final decision. (1) Normally, a hear- ee’s current pay account, unless the
ing will consist of the hearing official employee and the Agency agree to al-
making a decision based upon a review ternative arrangements for payment.
of the claims file and any materials The alternative payment schedule
submitted by the debtor. However, in must be in writing, signed by both the
instances where the hearing official de- employee and the Administrator and
termines that the validity of the debt will be documented in the Agency’s
turns on an issue of veracity or credi- files.
bility which cannot be resolved (i) Limitation on amount of deduction.
through review of documentary evi- The size and frequency of installment
dence, the hearing official at his dis- deductions generally will bear a rea-
cretion may afford the debtor an oppor- sonable relation to the size of the debt
tunity for an oral hearing. Such oral and the employee’s ability to pay.
hearings will consist of an informal However, the amount deducted for any
conference before a hearing official in period may not exceed 15 percent of the
which the employee and the Agency disposable pay from which the deduc-
will be given the opportunity to tion is made, unless the employee has
present evidence, witnesses and argu- agreed in writing to the deduction of a
ment. If desired, the employee may be greater amount. If possible, the install-
represented by an individual of his/her ment payments will be in amounts suf-
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choice. The Agency shall maintain a ficient to liquidate the debt in three
summary record of oral hearings pro- years or less. Installment payments of
vided under these procedures. less than $25 normally will be accepted
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Environmental Protection Agency § 13.22
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§ 13.23 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 13.25
to the creditor agency and the em- the Administrator has a debtor’s firm
ployee the total amount of EPA’s col- written offer for compromise which is
lection; and substantial in amount but the Admin-
(iii) If EPA is aware that the em- istrator is uncertain as to whether the
ployee is entitled to payments from the offer should be accepted, he may refer
Civil Service Retirement and Dis- the offer and the supporting data to
ability Fund or other similar pay- DOJ or GAO for action.
ments, it will forward a copy of the
claim form to the agency responsible § 13.25 Standards for compromise.
for making such payments as notice (a) EPA may compromise a claim
that a debt is outstanding. EPA will pursuant to this section if EPA cannot
also send a copy of the claim form to collect the full amount because the
the creditor agency so that it can file debtor does not have the financial abil-
a certified claim against the payments. ity to pay the full amount of the debt
(2) Employees who transfer to another within a reasonable time, or the debtor
Federal agency. If an EPA employee refuses to pay the claim in full and the
transfers to another Federal agency be- Government does not have the ability
fore EPA collects the total amount due to enforce collection in full within a
the creditor agency, the following ac- reasonable time by enforced collection
tions will be taken: proceedings. In evaluating the accept-
(i) EPA will certify the total amount ability of the offer, the Administrator
of the collection made on the debt; and may consider, among other factors, the
(ii) The employee’s official personnel following:
folder will be sent to the new paying (1) Individual debtors. (i) Age and
agency. (It is the responsibility of the health of the debtor;
creditor agency to ensure that the col- (ii) Present and potential income;
lection is resumed by the new paying (iii) Inheritance prospects;
agency.) (iv) The possibility that assets have
been concealed or improperly trans-
Subpart D—Compromise of Debts ferred by the debtor;
(v) The availability of assets or in-
§ 13.24 General. come which may be realized by en-
EPA may compromise claims for forced collection proceedings; or
money or property where the claim, ex- (vi) The applicable exemptions avail-
clusive of interest, penalty and admin- able to the debtor under State and Fed-
istrative costs, does not exceed $20,000. eral law in determining the Govern-
Where the claim exceeds $20,000, the ment’s ability to enforce collection.
authority to accept the compromise (2) Municipal and quasi-municipal debt-
rests solely with DOJ. The Adminis- ors. (i) The size of the municipality or
trator may reject an offer of com- quasi-municipal entity;
promise in any amount. Where the (ii) The availability of current and
claim exceeds $20,000 and EPA rec- future resources sufficient to pay the
ommends acceptance of a compromise debt (e.g., bonding authority, rate ad-
offer, it will refer the claim with its justment authority, or taxing author-
recommendation to DOJ for approval. ity); or
The referral will be in the form of the (iii) The ratio of liabilities (both
Claims Collection Litigation Report short and long term) to assets.
(CCLR) and will outline the basis for (3) Commercial debtors. (i) Ratio of as-
EPA’s recommendation. EPA refers sets to liabilities;
compromise offers for claims in excess (ii) Prospects of future income or
of $100,000 to the Commercial Litiga- losses; or
tion Branch, Civil Division, Depart- (iii) The availability of assets or in-
ment of Justice, Washington, DC 20530, come which may be realized by en-
unless otherwise provided by Depart- forced collection proceedings.
ment of Justice delegations or proce- (b) EPA may compromise a claim, or
dures. EPA refers offers of compromise recommend acceptance of a com-
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for claims of $20,000 to $100,000 to the promise to DOJ, where there is sub-
United States Attorney in whose judi- stantial doubt concerning the Govern-
cial district the debtor can be found. If ment’s ability to prove its case in
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§ 13.26 40 CFR Ch. I (7–1–21 Edition)
court for the full amount of the claim, agreement which accelerates payment
either because of the legal issues in- of the balance due upon default.
volved or a bona fide dispute as to the
facts. The amount accepted in com- § 13.27 Joint and several liability.
promise in such cases will fairly reflect When two or more debtors are jointly
the probability of prevailing on the and severally liable, collection action
legal issues involved, considering fully will not be withheld against one debtor
the availability of witnesses and other until the other or others pay their pro-
evidentiary data required to support portionate share. The amount of a
the Government’s claim. In deter- compromise with one debtor is not
mining the litigative risks involved, precedent in determining compromises
EPA will give proportionate weight to from other debtors who have been de-
the likely amount of court costs and termined to be jointly and severally
attorney fees the Government may liable on the claim.
incur if it is unsuccessful in litigation.
(c) EPA may compromise a claim, or § 13.28 Execution of releases.
recommend acceptance of a com- Upon receipt of full payment of a
promise to DOJ, if the cost of collec- claim or the amount compromised,
tion does not justify the enforced col- EPA will prepare and execute a release
lection of the full amount of the debt. on behalf of the United States. The re-
The amount accepted in compromise in lease will include a provision which
such cases may reflect an appropriate voids the release if it was procured by
discount for the administrative and fraud, misrepresentation, a false claim
litigative costs of collection, taking or by mutual mistake of fact.
into consideration the time it will take
to effect collection. Costs of collection Subpart E—Suspension of
may be a substantial factor in the set- Collection Action
tlement of small claims, but normally
will not carry great weight in the set- § 13.29 Suspension—general.
tlement of large claims. In determining The Administrator may suspend the
whether the cost of collection justifies Agency’s collection actions on a debt
enforced collection of the full amount, where the outstanding debt principal
EPA may consider the positive effect does not exceed $20,000, the Govern-
that enforced collection of the claim ment cannot presently collect or en-
may have on the collection of other force collection of any significant sum
similar claims. from the debtor, the prospects of future
(d) Statutory penalties, forfeitures or collection justify retention of the debt
debts established as an aid to enforce- for periodic review and there is no risk
ment and to compel compliance may be of expiration of the statute of limita-
compromised where the Administrator tions during the period of suspension.
determines that the Agency’s enforce- Additionally, the Administrator may
ment policy, in terms of deterrence and waive the assessment of interest, pen-
securing compliance (both present and alty charges and administrative costs
future), will be adequately served by during the period of the suspension.
accepting the offer. Suspension will be for an established
time period and generally will be re-
§ 13.26 Payment of compromised viewed at least every six months to en-
claims. sure the continued propriety of the sus-
The Administrator normally will not pension. DOJ approval is required to
approve a debtor’s request to pay a suspend debts exceeding $20,000. Unless
compromised claim in installments. otherwise provided by DOJ delegations
However, where the Administrator de- or procedures, the Administrator refers
termines that payment of a com- requests for suspension of debts of
promise by installments is necessary to $20,000 to $100,000 to the United States
effect collection, a debtor’s request to Attorney in whose district the debtor
pay in installments may be approved. resides. Debts exceeding $100,000 are re-
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Environmental Protection Agency § 13.32
§ 13.30 Standards for suspension. (3) Collection of the debt will cause
undue hardship to the debtor.
(a) Inability to locate debtor. The Ad-
(e) Refund barred by statute or regula-
ministrator may suspend collection on tion. The Administrator will ordinarily
a debt where he determines that the suspend collection action during the
debtor cannot be located presently but pendency of his consideration of a
that there is a reasonable belief that waiver request or administrative re-
the debtor can be located in the future. view where statute and regulation pre-
(b) Financial condition of debtor. The clude refund of amounts collected by
Administrator may suspend collection the Agency should the debtor prevail.
action on a claim when the debtor The Administrator may decline to sus-
owns no substantial equity in real or pend collection where he determines
personal property and is unable to that the request for waiver or adminis-
make payment on the claim or effect a trative review is frivolous or was made
compromise but the debtor’s future fi- primarily to delay collection.
nancial prospects justify retention of
the claim for periodic review, provided
that:
Subpart F—Termination of Debts
(1) The applicable statute of limita- § 13.31 Termination—general.
tions will not expire during the period
The Administrator may terminate
of the suspension, can be tolled or has collection actions and write-off debts,
started running anew; including accrued interest, penalty and
(2) Future collection can be effected administrative costs, where the debt
by offset, notwithstanding the 10-year principal does not exceed $20,000. If the
statute of limitations for administra- debt exceeds $20,000, EPA obtains the
tive offsets; or approval of DOJ in order to terminate
(3) The debtor agrees to pay interest further collection actions. Unless oth-
on the debt and suspension is likely to erwise provided for by DOJ regulations
enhance the debtor’s ability to fully or procedures, requests to terminate
pay the principal amount of the debt collection on debts in excess of $100,000
with interest at a later date. are referred to the Commercial Litiga-
(c) Request for waiver or administrative tion Branch, Civil Division, Depart-
review—mandatory. The Administrator ment of Justice, for approval. Debts in
will suspend collection activity where excess of $20,000 but $100,000 or less are
a statute provides for mandatory waiv- referred to the United States Attorney
er consideration or administrative re- in whose judicial district the debtor
view prior to agency collection of a can be found.
debt. The Administrator will suspend
EPA’s collection actions during the pe- § 13.32 Standards for termination.
riod provided for the debtor to request A debt may be terminated where the
review or waiver and during the period Administrator determines that:
of the Agency’s evaluation of the re- (a) The Government cannot collect or
quest. enforce collection of any significant
(d) Request for waiver or administrative sum from the debtor, having due regard
review—permissive. The Administrator for available judicial remedies, the
may suspend collection activities on debtor’s ability to pay, and the exemp-
debts of $20,000 or less during the pend- tions available to the debtor under
ency of a permissive waiver or adminis- State and Federal law;
trative review where he determines (b) The debtor cannot be located,
that: there is no security remaining to be
(1) There is a reasonable possibility liquidated, the applicable statute of
that waiver will be granted and the limitations has expired, and the pros-
debtor may be found not owing the pects of collecting by offset are too re-
debt (in whole or in part); mote to justify retention of the claim;
(2) The Government’s interest is pro- (c) The cost of further collection ac-
tected, if suspension is granted, by the tion is likely to exceed the amount re-
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§ 13.33 40 CFR Ch. I (7–1–21 Edition)
the rights of the debtor applicable to debt for tax return offset have been
claims for the payment of debts owed satisfied.
to EPA.
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Environmental Protection Agency Pt. 14
199
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§ 14.1 40 CFR Ch. I (7–1–21 Edition)
item is incident to service when posses- for the facility. The employee should
sion of the item by the employee had complete and submit to the Adminis-
substantial relationship to the employ- trative Office or the Safety Office a
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Environmental Protection Agency § 14.11
and the reason why the employee be- dinary risk situation;
lieves that the evidence or facts pre- (2) The loss or damage occurred dur-
viously were not available. ing the employee’s response to an
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§ 14.12 40 CFR Ch. I (7–1–21 Edition)
emergency situation, to a natural dis- tion with the carrier prior to shipment
aster such as fire, flood, hurricane, or of the item;
to a man-made disaster such as a (d) Loss of bankbooks, checks, notes,
chemical spill; stock certifications, money orders, or
(3) The loss or damage was caused by travelers checks;
faulty or defective equipment or fur- (e) Property owned by the United
niture maintained by EPA; or States unless the employee is finan-
(4) The item was stolen even though cially responsible for it to another gov-
the employee took reasonable pre- ernment agency;
cautions to protect the item from (f) Claims for loss or damage to a bi-
theft. cycle or a private motor vehicle, unless
(d) Claims for loss or damage to house- allowable under § 14.11(b)(6);
hold items. (1) Claims for damages to (g) Losses of insurers or subrogees;
household goods may be allowed where: (h) Losses recoverable from insurers
(i) The loss or damages occurred or carriers;
while the goods were being shipped pur- (i) Losses recovered or recoverable
suant to an EPA authorized change in pursuant to contract;
duty station; (j) Claims for damage or loss caused,
(ii) The employee filed a claim for in whole or in part, by the negligent or
the damages with the appropriate car- wrongful acts of the employee or his/
rier; and her agent;
(iii) The employee substantiates that (k) Property used for personal busi-
he/she has suffered a loss in excess of ness or profit;
the amount paid by the carrier. (l) Theft from the possession of the
(2) Where a carrier has refused to employee unless the employee took
make an award to an employee because reasonable precautions to protect the
of his/her failure to comply with the item from theft;
carrier’s claims procedures, any award (m) Property acquired, possessed or
by EPA will be reduced by the max- transported in violation of law or regu-
imum amount payable for the item by lations;
the carrier under its contract of ship- (n) Unserviceable property; or
ment. Where an employee fails to no- (o) Damage or loss to an item during
tify the carrier of damages or loss, ei- shipment of household goods where the
ther at the time of delivery of the damage or loss was caused by the em-
household goods or within a reasonable ployee’s negligence in packing the
time after discovery, any award by item.
EPA will be reduced by the amount of
the carrier’s maximum contractual li- § 14.13 Items fraudulently claimed.
ability for the damage or loss. The em- Where the EPA Claims Officer deter-
ployee has the burden of proving his/ mines that an employee has inten-
her entitlement to reimbursement tionally misrepresented the cost, con-
from EPA for amounts in excess of that dition, cost of repair or a material fact
allowed by the carrier. concerning a claim, he/she may, at his
discretion, deny the entire amount
§ 14.12 Principal types of unallowable claimed for the item. Further, where
claims. the EPA Claims Officer determines
Claims that ordinarily will not be al- that the employee intentionally has
lowed include: materially misrepresented the costs,
(a) Loss or damage totaling less than conditions or nature of repairs of the
$25; claim, he will refer it to appropriate of-
(b) Money or currency, except when ficials (e.g., Inspector General, the em-
deposited with an authorized govern- ployee’s supervisor, etc.) for action.
ment agency for safekeeping;
(c) Loss or damage to an item of ex- § 14.14 Computation of award.
traordinary value or to an antique (a) The amount awarded on any item
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where the item was shipped with may not exceed its adjusted cost. Ad-
household goods, unless the employee justed cost is either the purchase price
filed a valid appraisal or authentica- of the item or its value at the time of
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Environmental Protection Agency § 16.3
for administrative appeals of requests (b) All requests for access to, or the
for access to, or correction or amend- correction or amendment of personal
ment of, records. This part does not ex- records should cite the Privacy Act of
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§ 16.4 40 CFR Ch. I (7–1–21 Edition)
1974 and reference the type of request or obtain access to records about an-
being made (i.e., access, correction or other individual under false pretenses.
amendment). Requests must include: (c) An individual may have another
(1) The name and signature of the in- person accompany him or her during
dividual making the request; inspection of the records, and the sys-
(2) The name of the PA system of tem manager may require the request-
records (as set forth in EPA’s FEDERAL ing individual to sign a statement au-
REGISTER PA systems of records no- thorizing disclosure of the record in
tices) to which the request relates; and the presence of that other person.
(3) A statement whether a personal (d) An individual may request a copy
inspection of the records or a copy of of the requested record.
them by mail is desired. (e) No verification of identity will be
(c) A statement declaring his or her required where the records sought have
identity and stipulating that he or she been determined to be publicly avail-
understands it is a misdemeanor pun- able under the Freedom of Information
ishable by fine up to $5,000 to know- Act.
ingly and willfully seek or obtain ac- § 16.5 Request for correction or
cess to records about another indi- amendment of record.
vidual under false pretenses.
An individual may request correction
(d) A requester who cannot determine
or amendment of any record pertaining
which PA system of records to request
to him or her in a system of records
may ask for assistance by writing to maintained by EPA by submitting a re-
the Headquarters Freedom of Informa- quest in writing to the Freedom of In-
tion Office, Attention: Privacy Act Of- formation Office, or via the Agency’s
ficer, Environmental Protection Agen- Privacy Act Web site at http://
cy, (MC–2822T), 1200 Pennsylvania Ave- www.epa.gov/privacy or by fax, (202) 566–
nue, NW., Washington, DC 20460 or via 1639. The following information must
e-mail to http://www.epa.gov/privacy or be provided:
by fax, (202) 566–1639. (a) The name and signature of the in-
dividual making the request;
§ 16.4 Times, places, and requirements
for identification of individuals (b) The name of the system of
making requests. records;
(c) A description of the information
(a) If an individual requesting access sought to be corrected or amended and
under § 16.3 asks for personal inspection the specific reasons for the correction
of records, and if EPA grants the re- or amendment; and
quest, the individual may appear at the (d) Sufficient documentation of iden-
time and place specified in EPA’s re- tity as described under § 16.4(b). (An in-
sponse or arrange another time with dividual who is unable to provide the
the appropriate Agency official. identification under § 16.4(b) or is sub-
(b) Before conducting a personal in- mitting a request on line, must provide
spection of his or her records, an indi- a statement declaring his or her iden-
vidual must present sufficient identi- tity and stipulating that he or she un-
fication (e.g., driver’s license, em- derstands it is a misdemeanor punish-
ployee identification card, social secu- able by fine up to $5,000 to knowingly
rity card, or credit card) to establish and willfully seek or obtain access to
that he or she is the subject of the records about another individual under
records. EPA reserves the right to de- false pretenses).
termine the adequacy of the identifica-
tion. An individual who is unable to § 16.6 Initial decision on request for
provide such identification described access to, or correction or amend-
under paragraph (b) of this section will ment of, records.
complete and sign, in the presence of (a) Within 10 working days of receipt
an agency official, a statement declar- of a request, the Agency Privacy Act
ing his or her identity and stipulating Officer will send a letter to the re-
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Environmental Protection Agency § 16.7
where the requested record is located (g) If the appeal under § 16.7(e)(6) is
with instructions to: denied, the requester will be notified of
(1) Make a determination whether to the right to seek judicial review in ac-
permit access to the record, or to make cordance with subsection (g) of the Pri-
the requested correction or amend- vacy Act.
ment;
(2) Inform the requester of that de- § 16.7 The appeal process.
termination and, if the determination (a) An individual whose request for
is to deny access to the record, or to access to, or correction or amendment
not correct or amend it, the reason for of a record is initially denied and who
that decision and the procedures for wishes to appeal that denial may do so
appeal. by sending a letter to EPA’s Privacy
(b) If the system manager is unable Act Officer within 30 days of the re-
to decide whether to grant a request of ceipt of the initial denial. The appeal
access to, or amendment or correction must identify and restate the initial
of a record within 20 working days of request. If an appeal concerns an ad-
the Agency’s receipt of the request, he verse decision by the Office of Inspec-
or she will inform the requester rea- tor General, the Privacy Act Officer
sons for the delay, and an estimate of will forward it to the Counsel to the In-
when a decision will be made. spector General, or his or her designee,
(c) In reviewing a request for the cor- who will then act on the appeal. The
rection or amendment of a record, the Counsel to the Inspector General, or
system manager will be guided by the his or her designee, will carry out all
requirements of 5 U.S.C. 552a(e)(1) and responsibilities with respect to PA ap-
(e)(5). peals that are otherwise assigned to
(d) A system manager who decides to EPA’s General Counsel under this sec-
grant all or any portion of a request to tion; however, if the Counsel to the In-
correct or amend a record will inform spector General has signed the initial
any person or entity outside EPA that adverse determination, the General
was provided the record of the correc- Counsel, or his or her designee, will act
tion or amendment, and, where there is on the appeal.
an accounting of that disclosure, make (b) EPA’s General Counsel, or his or
a note of the action taken in the ac- her designee, will make final decisions
counting. on PA appeals within 30 working days
(e) If a request pursuant to § 16.3 for from the date on which the appeal is
access to a record is in a system of properly received in the Office of Gen-
records which is exempted, the records eral Counsel, unless, for good cause
system manager or designee will decide shown, the 30-day period is extended
whether any information will nonethe- and the requester is notified of the ex-
less be made available. If the decision tension in writing. Such extensions
is to deny access, the reason for denial will be utilized only in exceptional cir-
and the appeal procedure will be given cumstances.
to the requester. (c) In conducting PA appeals, the
(f) A person whose request for access General Counsel, or his or her designee,
is initially denied may appeal that de- will be guided by the requirements of 5
nial to EPA’s Privacy Act Officer. U.S.C. 552a(e)(1) and (e)(5).
EPA’s General Counsel will decide the (d) If an appeal is granted in whole or
appeal within 30 working days. If an in part, the requester will be notified,
appeal concerns a system of records in writing, and access to the record
maintained by the Office of Inspector will be granted, or the correction or
General, the Privacy Act Officer will amendment of the record will be made.
forward the appeal to the Counsel to In all such cases, the Privacy Act Offi-
the Inspector General who will decide cer will ensure that § 16.7(d) is complied
on the appeal in accordance with § 16.7. with.
The Counsel to the Inspector General (e) If the General Counsel or the
will carry out all responsibilities with Counsel to the Inspector General de-
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respect to the appeal that are other- cides not to grant all or any portion of
wise assigned to EPA’s General Coun- an appeal, the requester will be in-
sel under § 16.7. formed:
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§ 16.8 40 CFR Ch. I (7–1–21 Edition)
(1) Of the decision and its basis; EPA–46 OCEFT/NEIC Master Track-
(2) Of the requester’s right to file a ing System.
concise statement of reasons for dis- EPA–63 eDiscovery Enterprise Tool
agreeing with EPA’s decision; Suite.
(3) Of the procedures for filing such (b) Authority. Under 5 U.S.C.
statement of disagreement; 552a(j)(2), the head of any Federal agen-
(4) That such statements of disagree- cy may by rule exempt any PA system
ments will be made available in subse- of records within the agency from cer-
quent disclosures of the record, to- tain provisions of the Act, if the sys-
gether with an agency statement (if tem of records is maintained by an
deemed appropriate) summarizing its agency or component thereof which
refusal; performs as its principal function any
(5) That prior recipients of the dis- activity pertaining to the enforcement
puted record will be provided with of criminal laws and which consists of:
statements as in paragraph (e)(4) of (1) Information compiled for the pur-
this section, to the extent that an ac- pose of identifying individual criminal
counting of disclosures is maintained offenders and alleged offenders and
under 5 U.S.C. 552a(c); and consisting only of identifying data and
(6) Of the requester’s right to seek ju- notations of arrests, the nature and
dicial review under 5 U.S.C. 552a(g). disposition of criminal charges, sen-
tencing, confinement, release, and pa-
§ 16.8 Special procedures: Medical role and probation status;
Records.
(2) Information compiled for the pur-
Should EPA receive a request for ac- pose of a criminal investigation, in-
cess to medical records (including psy- cluding reports of informants and in-
chological records) disclosure of which vestigators, and associated with an
the system manager decides would be identifiable individual; or
harmful to the individual to whom (3) Reports identifiable to an indi-
they relate, EPA may refuse to disclose vidual compiled at any stage of the
the records directly to the individual process of enforcement of the criminal
and instead offer to transmit them to a laws from arrest or indictment through
physician designated by the individual. release from supervision.
EPA–40 Inspector General’s Oper- 300h–2, 300i–1; Noise Control Act of 1972,
ation and Reporting (IGOR) System In- 42 U.S.C. 4912; Emergency Planning and
vestigative Files. Community Right-To-Know Act of 1986,
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Environmental Protection Agency § 16.11
42 U.S.C. 11045; and the Marine Protec- mental Response, Compensation and
tion, Research, and Sanctuaries Act of Liability Act, 42 U.S.C. 9603; Resource
1972, 33 U.S.C. 1415. Conservation and Recovery Act, 42
(2) The Agency’s system of records, U.S.C. 6928; Federal Water Pollution
EPA–40 system of records is main- Control Act, 33 U.S.C. 1319, 1321; Toxic
tained by the Office of Investigations Substances Control Act, 15 U.S.C. 2614,
of the Office of Inspector General 2615; Clean Air Act, 42 U.S.C. 7413; Fed-
(OIG), a component of EPA that per- eral Insecticide, Fungicide and
forms as its principal function activi- Rodenticide Act, 7 U.S.C. 136j, 136l;
ties pertaining to the enforcement of Safe Drinking Water Act, 42 U.S.C.
criminal laws. Authority for the crimi- 300h–2, 300i–1; Noise Control Act of 1972,
nal law enforcement activities of the 42 U.S.C. 4912; Emergency Planning and
OIG’s Office of Investigations is the In- Community Right-To-Know Act of 1986,
spector General Act of 1978, as amend- 42 U.S.C. 11045; and the Marine Protec-
ed, 5 U.S.C. app. 3. tion, Research, and Sanctuaries Act of
(3) The Agency’s system of records, 1972, 33 U.S.C. 1415.
EPA–46 system of records is main- (d) Scope of Exemption. EPA systems
tained by the National Enforcement In- of records 17, 40, 46 and 63 are exempted
vestigations Center, Office of Criminal from the following provisions of the
Enforcement, Forensics, and Training, PA: 5 U.S.C. 552a(c)(3) and (4); (d);
a component of EPA which performs as (e)(1), (2), (3), (4)(G), and (H), (5), and
its principal function activities per- (8); (f)(2) through (5); and (g). To the ex-
taining to the enforcement of criminal tent that the exemption for EPA sys-
laws. Authority for the criminal law tems of records 17, 40, 46 and 63 claimed
enforcement activities comes from Re- under 5 U.S.C. 552a(j)(2) of the Act is
organization Plan No. 3 of 1970 (5 U.S.C. held to be invalid, then an exemption
app. 1), effective December 2, 1970; Pow- under 5 U.S.C. 552a(k)(2) is claimed for
ers of Environmental Protection Agen- these systems of records from (c)(3),
cy, 18 U.S.C. 3063; Comprehensive Envi- (d), (e)(1), (e)(4)(G), (H), and (f)(2)
ronmental Response Compensation and through (5). For Agency’s system of
Liability Act , 42 U.S.C. 9603; Resource records, EPA system 40, an exemption
Conservation and Recovery Act, 42 is separately claimed under 5 U.S.C.
U.S.C. 6928; Federal Water Pollution 552(k)(5) from (c)(3), (d), (e)(1), (e)(4)(G),
Control Act, 33 U.S.C. 1319, 1321; Toxic (4)(H), and (f)(2) through (5).
Substances Control Act, 15 U.S.C. 2614, (e) Reasons for exemption. EPA sys-
2615; Clean Air Act, 42 U.S.C. 7413; Fed- tems of records 17, 40, 46 and 63 are ex-
eral Insecticide, Fungicide and empted from the above provisions of
Rodenticide Act, 7 U.S.C. 136j, 136l; the PA for the following reasons:
Safe Drinking Water Act, 42 U.S.C. (1) 5 U.S.C. 552a(c)(3) requires an
300h–2, 300i–1; Emergency Planning and agency to make the accounting of each
Community Right-To-Know Act of 1986, disclosure of records available to the
42 U.S.C. 11045; and the Marine Protec- individual named in the record upon re-
tion, Research, and Sanctuaries Act of quest. These accountings must state
1972, 33 U.S.C. 1415. the date, nature, and purpose of each
(4) The Agency’s system of records, disclosure of a record and the name and
EPA–63 system of records is main- address of the recipient. Accounting for
tained by the Office of Environmental each disclosure would alert the sub-
Information, Office of Enterprise Infor- jects of an investigation to the exist-
mation Programs, on behalf of the ence of the investigation and the fact
Criminal Investigation Division, Office that they are subjects of the investiga-
of Criminal Enforcement, Forensics, tion. The release of such information
and Training, a component of EPA to the subjects of an investigation
which performs as its principal func- would provide them with significant in-
tion activities pertaining to the en- formation concerning the nature of the
forcement of criminal laws. Authority investigation, and could seriously im-
for the Division’s criminal law enforce- pede or compromise the investigation,
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ment activities comes from Powers of endanger the physical safety of con-
Environmental Protection Agency, 18 fidential sources, witnesses, law en-
U.S.C. 3063; Comprehensive Environ- forcement personnel and their families,
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§ 16.11 40 CFR Ch. I (7–1–21 Edition)
and lead to the improper influencing of ways possible to detect the relevance
witnesses, the destruction of evidence, or necessity of specific information in
or the fabrication of testimony. the early stages of an investigation.
(2) 5 U.S.C. 552a(c)(4) requires an Relevance and necessity are often ques-
agency to inform any person or other tions of judgment and timing, and it is
agency about any correction or nota- only after the information is evaluated
tion of dispute made by the agency in that the relevance and necessity of
accordance with subsection (d) of the such information can be established. In
Act. Since EPA is claiming that these addition, during the course of the in-
systems of records are exempt from vestigation, the investigator may ob-
subsection (d) of the Act, concerning tain information which is incidental to
access to records, this section is inap- the main purpose of the investigation
plicable and is exempted to the extent but which may relate to matters under
that these systems of records are ex- the investigative jurisdiction of an-
empted from subsection (d) of the Act. other agency. Such information cannot
(3) 5 U.S.C. 552a(d) requires an agency readily be segregated. Furthermore,
to permit an individual to gain access during the course of the investigation,
to records pertaining to him or her, to the investigator may obtain informa-
request amendment to such records, to tion concerning the violation of laws
request a review of an agency decision other than those which are within the
not to amend such records, and to con- scope of his jurisdiction. In the interest
test the information contained in such of effective law enforcement, the EPA
records. Granting access to records in
investigators should retain this infor-
these systems of records could inform
mation, since it can aid in establishing
the subject of an investigation of an
patterns of criminal activity and can
actual or potential criminal violation
provide valuable leads for other law en-
of the existence of that investigation,
forcement agencies.
of the nature and scope of the informa-
tion and evidence obtained as to his ac- (5) 5 U.S.C. 552a(e)(2) requires an
tivities, of the identity of confidential agency to collect information to the
sources, witnesses, and law enforce- greatest extent practicable directly
ment personnel, and could provide in- from the subject individual when the
formation to enable the subject to information may result in adverse de-
avoid detection or apprehension. terminations about an individual’s
Granting access to such information rights, benefits, and privileges under
could seriously impede or compromise Federal programs. The application of
an investigation, endanger the physical this provision could impair investiga-
safety of confidential sources, wit- tions and law enforcement by alerting
nesses, law enforcement personnel and the subject of an investigation of the
their families, lead to the improper in- existence of the investigation, enabling
fluencing of witnesses, the destruction the subject to avoid detection or appre-
of evidence, or the fabrication of testi- hension, to influence witnesses improp-
mony, and disclose investigative tech- erly, to destroy evidence, or to fab-
niques and procedures. In addition, ricate testimony. Moreover, in certain
granting access to such information circumstances, the subject of an inves-
could disclose classified, security-sen- tigation cannot be required to provide
sitive, or confidential business infor- information to investigators, and infor-
mation and could constitute an unwar- mation must be collected from other
ranted invasion of the personal privacy sources. Furthermore, it is often nec-
of others. essary to collect information from
(4) 5 U.S.C. 552a(e)(1) requires each sources other than the subject of the
agency to maintain in its records only investigation to verify the accuracy of
such information about an individual the evidence collected.
as is relevant and necessary to accom- (6) 5 U.S.C. 552a(e)(3) requires an
plish a purpose of the agency required agency to inform each person whom it
by statute or by Executive order of the asks to supply information, on a form
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President. The application of this pro- that can be retained by the person, of
vision could impair investigations and the authority under which the informa-
law enforcement, because it is not al- tion is sought and whether disclosure
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Environmental Protection Agency § 16.11
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§ 16.12 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 16.12
(5) Reasons for exemption. EPA sys- cedures. In addition, granting access to
tems of records 17, 21, 30, 40, 41, 46 and such information could disclose classi-
63 are exempted from the above provi- fied, security-sensitive, or confidential
sions of the PA for the following rea- business information and could con-
sons: stitute an unwarranted invasion of the
(i) 5 U.S.C. 552a(c)(3) requires an personal privacy of others.
agency to make the accounting of each (iii) 5 U.S.C. 552a(e)(1) requires each
disclosure of records available to the agency to maintain in its records only
individual named in the record at his such information about an individual
or her request. These accountings must as is relevant and necessary to accom-
state the date, nature, and purpose of plish a purpose of the agency required
each disclosure of a record and the by statute or by Executive order of the
name and address of the recipient. Ac- President. Maintaining records in this
counting for each disclosure would way could impair investigations and
alert the subjects of an investigation law enforcement efforts, because it is
to the existence of the investigation not always possible to detect the rel-
and the fact that they are subjects of evance or necessity of specific informa-
the investigation. The release of such tion in the early stages of an investiga-
information to the subjects of an inves- tion. The relevance and necessity of
tigation would provide them with sig- maintaining information are often
nificant information concerning the questions of judgment and timing, and
nature of the investigation, and could it is only after that information is
seriously impede or compromise the in- evaluated that its relevance and neces-
vestigation, endanger the physical sity can be established. In addition,
safety of confidential sources, wit- during the course of an investigation,
nesses, law enforcement personnel and the investigator may obtain informa-
their families, and lead to the improper tion which is incidental to the main
influencing of witnesses, the destruc- purpose of the investigation but which
tion of evidence, or the fabrication of may relate to matters under the inves-
testimony. tigative jurisdiction of another agency.
(ii) 5 U.S.C. 552a(d) requires an agen- Such information cannot readily be
cy to permit an individual to gain ac- segregated. Furthermore, during the
cess to records pertaining to him or course of an investigation, the investi-
her, to request amendment of such gator may obtain information con-
records, to request a review of an agen- cerning the violation of laws other
cy decision not to amend such records, than those within the scope of the
and to contest the information con- agency’s jurisdiction. In the interest of
tained in such records. Granting access effective law enforcement, EPA inves-
to records in these affected PA systems tigators should retain this informa-
of records could inform the subject of tion, since it can aid in establishing
an investigation of an actual or poten- patterns of criminal activity and can
tial criminal violation, of the existence provide valuable leads for other law en-
of that investigation, of the nature and forcement agencies.
scope of the information and evidence (iv) 5 U.S.C. 552a(e)(4)(G) and (H) re-
obtained as to his or her activities, of quire an agency to publish a FEDERAL
the identity of confidential sources, REGISTER notice concerning its proce-
witnesses, and law enforcement per- dures for notifying an individual upon
sonnel, and could provide information request if the system of records con-
to enable the subject to avoid detection tains a record pertaining to him or her,
or apprehension. Granting access to how the individual can gain access to
such information could seriously im- the record, and how to contest its con-
pede or compromise an investigation, tent. Since EPA is claiming that these
endanger the physical safety of con- systems of records are exempt from
fidential sources, witnesses, law en- subsection (f)(2) through (5) of the Act,
forcement personnel and their families, concerning agency rules, and sub-
lead to the improper influencing of wit- section (d) of the Act, concerning ac-
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§ 16.12 40 CFR Ch. I (7–1–21 Edition)
are exempted from subsections (f) and classified information, but only to the
(d) of the Act. Although EPA is claim- extent that the disclosure of such ma-
ing exemption from these require- terial would reveal the identity of a
ments, EPA has published such a no- source who furnished information to
tice concerning its notification, access, the Government under an express
and contest procedures because, under promise that the identity of the source
certain circumstances, EPA might de- would be held in confidence, or, prior
cide it is appropriate for an individual to September 27, 1975, under an implied
to have access to all or a portion of his promise that the identity would be
records in these systems of records. held in confidence.
(v) 5 U.S.C. 552a(f)(1) requires an (3) Qualification for exemption. These
agency to promulgate rules which shall systems contain investigatory material
establish procedures whereby an indi- compiled solely for the purpose of de-
vidual can be notified in response to termining suitability, eligibility, or
his or her request if any system of qualifications for Federal civilian em-
records named by the individual con- ployment, military service, Federal
tains a record pertaining to him or her. contracts, or access to classified infor-
Since EPA is claiming that these sys- mation.
tems of records are exempt from sub- (4) Scope of exemption. (i) EPA 36 is
section (d) of the Act, concerning ac- exempted from 5 U.S.C. 552a(c)(3) and
cess to records, the requirements of (d). EPA 40 and 41 are exempted from
subsections (f)(2) through (5) of the the following provisions of the PA, sub-
Act, concerning agency rules for ob- ject to the limitations of 5 U.S.C.
taining access to such records, are in- 552a(k)(5); 5 U.S.C. 552a(c)(3); (d); (e)(1),
applicable and are exempted to the ex- (4)(H); and (f)(2) through (5).
tent that these systems of records are (ii) To the extent that records in
exempted from subsection (d) of the EPA 40 and 41 reveal a violation or po-
Act. Although EPA is claiming exemp- tential violation of law, then an ex-
tion from the requirements of sub- emption under 5 U.S.C. 552a(k)(2) is
section (f)(2) through (5) of the Act, also claimed for these records. EPA 40
EPA has promulgated rules which es- is also exempt under 5 U.S.C. 552a(j)(2)
tablish Agency procedures because, of the Act.
under certain circumstances, it might (5) Reasons for exemption. EPA 36, 40,
be appropriate for an individual to and 41 are exempted from the above
have access to all or a portion of his provisions of the PA for the following
records in these systems of records. reasons:
These procedures are described else- (i) 5 U.S.C. 552a(c)(3) requires an
where in this part. agency to make the accounting of each
(b) Exemption under 5 U.S.C. disclosure of records available to the
552a(k)(5)—(1) Systems of records af- individual named in the record at his
fected. EPA 36 Research Grant, Coop- or her request. These accountings must
erative Agreement, and Fellowship Ap- state the date, nature, and purpose of
plication Files. each disclosure of a record and the
EPA 40 Inspector General’s Oper- name and address of the recipient.
ation and Reporting (IGOR) System In- Making such an accounting could cause
vestigative Files. the identity of a confidential source to
EPA 41 Inspector General’s Oper- be revealed, endangering the physical
ation and Reporting (IGOR) System safety of the confidential source, and
Personnel Security Files. could impair the ability of the EPA to
(2) Authority. Under 5 U.S.C. compile, in the future, investigatory
552a(k)(5), the head of any agency may material for the purpose of deter-
by rule exempt any system of records mining suitability, eligibility, or quali-
within the agency from certain provi- fications for Federal civilian employ-
sions of the PA, if the system of ment, Federal contracts, or access to
records is investigatory material com- classified information.
piled solely for the purpose of deter- (ii) 5 U.S.C. 552a(d) requires an agen-
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Environmental Protection Agency § 16.12
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§ 16.12 40 CFR Ch. I (7–1–21 Edition)
and (4)(H); and (f)(2) through (5) of the access to records, these requirements
Act. are inapplicable and are exempted to
(5) Reasons for exemption. EPA 41 is the extent that this system of records
exempted from the above provisions of is exempted from subsections (f) and
the PA for the following reasons: (d) of the Act. Although EPA is claim-
(i) 5 U.S.C. 552a(c)(3) requires an ing exemption from these require-
agency to make the accounting of each ments, EPA has published such a no-
disclosure of records available to the tice concerning its notification, access,
individual named in the record at his and contest procedures because, under
request. These accountings must state certain circumstances, EPA might de-
the date, nature, and purpose of each cide it is appropriate for an individual
disclosure of a record and the name and to have access to all or a portion of his
address of the recipient. Making such records in this system of records.
an accounting could result in the re- (v) 5 U.S.C. 552a(f)(1) requires an
lease of properly classified informa- agency to promulgate rules which shall
tion, which would compromise the na- establish procedures whereby an indi-
tional defense or disrupt foreign policy. vidual can be notified in response to
(ii) 5 U.S.C. 552a(d) requires an agen- his request if any system of records
cy to permit an individual to gain ac- named by the individual contains a
cess to records pertaining to him or record pertaining to him or her. Since
her, to request amendment to such EPA is claiming that this system of
records, to request a review of an agen- records is exempt from subsection (d)
cy decision not to amend such records,
of the Act, concerning access to
and to contest the information con-
records, the requirements of sub-
tained in such records. Granting such
sections (f)(2) through (5) of the Act,
access could cause the release of prop-
concerning agency rules for obtaining
erly classified information, which
access to such records, are inapplicable
would compromise the national defense
and are exempted to the extent that
or disrupt foreign policy.
this system of records is exempt from
(iii) 5 U.S.C. 552a(e)(1) requires each
subsection (d) of the Act. Although
agency to maintain in its records only
EPA is claiming exemption from the
such information about an individual
requirements of subsection (f) of the
as is relevant and necessary to accom-
plish a purpose of the agency required Act, EPA has promulgated rules which
by statute or by Executive order of the establish Agency procedures because,
President. The application of this pro- under certain circumstances, it might
vision could impair personnel security be appropriate for an individual to
investigations which use properly clas- have access to all or a portion of his or
sified information, because it is not al- her records in this system of records.
ways possible to know the relevance or These procedures are described else-
necessity of specific information in the where in this part.
early stages of an investigation. Rel- (d) Exempt records provided by another
evance and necessity are often ques- Federal agency. Individuals may not
tions of judgment and timing, and it is have access to records maintained by
only after the information is evaluated the EPA if such records were provided
that the relevance and necessity of by another Federal agency which has
such information can be established. determined by regulation that such
(iv) 5 U.S.C. 552a(e)(4) (G) and (H) re- records are subject to general exemp-
quire an agency to publish a FEDERAL tion under 5 U.S.C. 552a(j) or specific
REGISTER notice concerning its proce- exemption under 5 U.S.C. 552a(k). If an
dures for notifying an individual upon individual requests access to such ex-
request if the system of records con- empt records, EPA will consult with
tains a record pertaining to him or her, the source agency.
how to gain access to such a record, (e) Exempt records included in a non-
and how to contest its content. Since exempt system of records. All records ob-
EPA is claiming that this system of tained from a system of records which
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Environmental Protection Agency § 17.3
status even if such records are also in- vails over EPA in an adversary adju-
cluded in a system of records for which dication before EPA unless EPA’s posi-
a specific exemption has not been tion as a party to the proceeding was
claimed. substantially justified or special cir-
[71 FR 234, Jan. 4, 2006, as amended at 83 FR
cumstances make an award unjust. The
62718, Dec. 6, 2018] purpose of these rules is to establish
procedures for the submission and con-
sideration of applications for awards
PART 17—IMPLEMENTATION OF THE against EPA when the underlying deci-
EQUAL ACCESS TO JUSTICE ACT sion is not reviewed by a court.
IN EPA ADMINISTRATIVE PRO-
CEEDINGS § 17.2 Definitions.
As used in this part:
Subpart A—General Provisions
(a) The Act means section 504 of title
Sec. 5 U.S.C., as amended by section
17.1 Purpose of these rules. 203(a)(1) of the Equal Access to Justice
17.2 Definitions. Act, Public Law No. 96–481.
17.3 Proceedings covered.
(b) Administrator means the Adminis-
17.4 Applicability to EPA proceedings.
17.5 Eligibility of applicants. trator of the Environmental Protection
17.6 Standards for awards. Agency.
17.7 Allowable fees and other expenses. (c) Adversary adjudication means an
17.8 Delegation of authority. adjudication required by statute to be
held pursuant to 5 U.S.C. 554 in which
Subpart B—Information Required From the position of the United States is
Applicants represented by counsel or otherwise,
17.11 Contents of application. but excludes an adjudication for the
17.12 Net worth exhibit. purpose of granting or renewing a li-
17.13 Documentation of fees and expenses. cense.
17.14 Time for submission of application. (d) EPA means the Environmental
Protection Agency, an Agency of the
Subpart C—Procedures for Considering
United States.
Applications
(e) Presiding officer means the official,
17.21 Filing and service of documents. without regard to whether he is des-
17.22 Answer to application. ignated as an administrative law judge
17.23 Comments by other parties. or a hearing officer or examiner, who
17.24 Settlement. presides at the adversary adjudication.
17.25 Extensions of time and further pro-
ceedings. (f) Proceeding means an adversary ad-
17.26 Decision on application. judication as defined in § 17.2(b).
17.27 Agency review.
17.28 Judicial review. § 17.3 Proceedings covered.
17.29 Payment of award. (a) These rules apply to adversary ad-
AUTHORITY: Section 504, Title 5 U.S.C., as judications required by statute to be
amended by sec. 203(a)(1), Equal Access to conducted by EPA under 5 U.S.C. 554.
Justice Act (Title 2 of Pub. L. 96–481, 94 Stat. To the extent that they are adversary
2323). adjudications, the proceedings con-
SOURCE: 48 FR 39936, Sept. 2, 1983, unless ducted by EPA to which these rules
otherwise noted. apply include:
(1) A hearing to consider the assess-
Subpart A—General Provisions ment of a noncompliance penalty under
section 120 of the Clean Air Act as
§ 17.1 Purpose of these rules. amended (42 U.S.C. 7420);
These rules are adopted by EPA pur- (2) A hearing to consider the termi-
suant to section 504 of title 5 U.S.C., as nation of an individual National Pollu-
added by section 203(a)(1) of the Equal tion Discharge Elimination System
Access to Justice Act, Public Law No. permit under section 402 of the Clean
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96–481. Under the Act, an eligible party Water Act as amended (33 U.S.C. 1342);
may receive an award for attorney’s (3) A hearing to consider the assess-
fees and other expenses when it pre- ment of any civil penalty under section
215
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§ 17.4 40 CFR Ch. I (7–1–21 Edition)
final EPA action has not been taken tity that directly or indirectly controls
before that date, and proceedings pend- or owns a majority of the voting shares
ing on September 30, 1984. of another business’ board of directors,
216
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Environmental Protection Agency § 17.11
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§ 17.12 40 CFR Ch. I (7–1–21 Edition)
and is exempt from taxation under sec- ing of the net worth of all such affili-
tion 501(a) of the Code or, in the case of ates or of the applicant including the
such an organization not required to affiliates. The exhibit may be in any
obtain a ruling from the Internal Rev- form that provides full disclosure of as-
enue Service on its exempt status, a sets and liabilities of the applicant and
statement that describes the basis for any affiliates and is sufficient to deter-
the applicant’s belief that it qualifies mine whether the applicant qualifies
under section 501(c)(3) of the Code; or under the standards of 5 U.S.C.
(2) It states that it is a cooperative 504(b)(1)(B)(i). The Presiding Officer
association as defined in section 15(a) may require an applicant to file addi-
of the Agricultural Marketing Act (12 tional information to determine the
U.S.C. 114j(a)). applicant’s eligibility for an award.
(c) If the applicant is a partnership, (b) The net worth exhibit shall de-
corporation, association, or organiza- scribe any transfers of assets from, or
tion, or a sole owner of an unincor- obligations incurred by, the applicant
porated business, the application shall or any affiliate occurring in the one-
state that the applicant did not have year period prior to the date on which
more than 500 employees at the time the proceeding was initiated that re-
the proceeding was initiated, giving duced the net worth of the applicant
the number of its employees and de- and its affiliates below the applicable
scribing briefly the type and purpose of net worth ceiling. If there were no such
its organization or business. transactions, the applicant shall so
(d) The application shall itemize the state.
amount of fees and expenses sought. (c) The net worth exhibit shall be in-
(e) The application may include any cluded in the public record of the pro-
other matters that the applicant be- ceeding.
lieves should be considered in deter-
(Approved by the Office of Management and
mining whether and in what amount an
Budget under control number 2000–0430)
award should be made.
(f) The application shall be signed by § 17.13 Documentation of fees and ex-
the applicant with respect to the eligi- penses.
bility of the applicant and by the at- (a) The application shall be accom-
torney of the applicant with respect to panied by full documentation of fees
fees and expenses sought. The applica- and expenses, including the cost of any
tion shall contain or be accompanied study, engineering report, test, or
by a written verification under oath or project, for which an award is sought.
affirmation or under penalty of perjury (b) The documentation shall include
that the information provided in the an affidavit from any attorney, agent,
application and all accompanying ma- or expert witness representing or ap-
terial is true and complete to the best pearing in behalf of the party stating
of the signer’s information and belief. the actual time expended and the rate
(Approved by the Office of Management and at which fees and other expenses were
Budget under control number 2000–0403) computed and describing the specific
services performed.
§ 17.12 Net worth exhibit. (1) The affidavit shall itemize in de-
(a) Each applicant except a qualified tail the services performed by the date,
tax exempt organization or a qualified number of hours per date, and the serv-
cooperative must submit with its appli- ices performed during those hours. In
cation a detailed exhibit showing its order to establish the hourly rate, the
net worth at the time the proceeding affidavit shall state the hourly rate
was initiated. If any individual, cor- which is billed and paid by the major-
poration, or other entity directly or in- ity of clients during the relevant time
directly controls or owns a majority of periods.
the voting shares or other interest of (2) If no hourly rate is paid by the
the applicant, or if the applicant di- majority of clients because, for in-
rectly or indirectly owns or controls a stance, the attorney or agent rep-
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Environmental Protection Agency § 17.24
219
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§ 17.25 40 CFR Ch. I (7–1–21 Edition)
§ 17.25 Extensions of time and further protracted the final resolution of the
proceedings. matter in controversy; and
(a) The Presiding Officer may, on mo- (f) The amounts, if any, awarded for
tion and for good cause shown, grant fees and other expenses, explaining any
extensions of time, other than for fil- difference between the amount re-
ing an application for fees and ex- quested and the amount awarded.
penses, after final disposition in the ad-
§ 17.27 Agency review.
versary adjudication.
(b) Ordinarily, the determination of The recommended decision of the
an award will be made on the basis of Presiding Officer will be reviewed by
the written record of the underlying EPA in accordance with EPA’s proce-
proceeding and the filings required or dures for the type of substantive pro-
permitted by the foregoing sections of ceeding involved.
these rules. However, the adjudicative
officer may sua sponte or on motion of § 17.28 Judicial review.
any party to the proceedings require or Judicial review of final EPA deci-
permit further filings or other action, sions on awards may be sought as pro-
such as an informal conference, oral ar- vided in 5 U.S.C. 504(c)(2).
gument, additional written submis-
sions, or an evidentiary hearing. Such § 17.29 Payment of award.
further action shall be allowed only An applicant seeking payment of an
when necessary for full and fair resolu- award shall submit a copy of the final
tion of the issues arising from the ap- decision granting the award to the Of-
plication and shall take place as fice of Financial Management for Proc-
promptly as possible. A motion for fur- essing. A statement that review of the
ther filings or other action shall spe- underlying decision is not being sought
cifically identify the information in the United States courts or that the
sought on the disputed issues and shall process for seeking review of the award
explain why the further filings or other has been completed must also be in-
action is necessary to resolve the cluded.
issues.
(c) In the event that an evidentiary PART 18—ENVIRONMENTAL PRO-
hearing is required or permitted by the TECTION RESEARCH FELLOWSHIPS
adjudicative officer, such hearing and
any related filings or other action re-
AND SPECIAL RESEARCH CON-
quired or permitted shall be conducted SULTANTS FOR ENVIRONMENTAL
pursuant to the procedural rules gov- PROTECTION
erning the underlying adversary adju-
dication. Sec.
18.1 Definitions.
§ 17.26 Decision on application. 18.2 Applicability.
18.3 Purpose of Environmental Protection
The Presiding Officer shall issue a Research Fellowships.
recommended decision on the applica- 18.4 Establishment of Environmental Pro-
tion which shall include proposed writ- tection Research Fellowships.
ten findings and conclusions on such of 18.5 Qualifications of Environmental Pro-
the following as are relevant to the de- tection Research Fellows.
18.6 Method of Application.
cision: 18.7 Selection and Appointment of Environ-
(a) The applicant’s status as a pre- mental Protection Research Fellows.
vailing party; 18.8 Stipends, Allowances, and Benefits.
(b) The applicant’s qualification as a 18.9 Duration of Environmental Protection
‘‘party’’ under 5 U.S.C. 504(b)(1)(B); Research Fellowships.
(c) Whether EPA’s position as a party 18.10 Appointment of Special Research Con-
to the proceeding was substantially sultants for Environmental Protection.
justified; 18.11 Standards of Conduct and Financial
Disclosure.
(d) Whether the special cir-
cumstances make an award unjust; AUTHORITY: 42 U.S.C. 209; Pub. L. 109–54, 119
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Environmental Protection Agency § 18.7
mission where the nature of the work establish procedures for the appoint-
or the character of the individual’s ment of Environmental Protection Re-
services render customary employing search fellows.
221
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§ 18.8 40 CFR Ch. I (7–1–21 Edition)
§ 18.8 Stipends, Allowances, and Bene- (c) Benefits. In addition to other bene-
fits. fits provided herein, Environmental
(a) Stipends. Each Environmental Protection Research fellows shall be
Protection Research fellow shall be en- entitled to benefits as provided by law
or regulation for other civilian employ-
titled to such stipend as is authorized
ees of the Agency.
by the Administrator or designee.
(d) Training. Environmental Protec-
(b) Travel and transportation allow-
tion Research fellows are eligible for
ances. Under conditions prescribed by
training at Government expense on the
the Administrator or designee, an indi-
same basis as other Agency employees.
vidual appointed as an Environmental
Protection Research fellow may be au- § 18.9 Duration of Environmental Pro-
thorized travel and transportation or tection Research Fellowships.
relocation allowances for his or her im- Initial appointments to Environ-
mediate family under subchapter I of mental Protection Research fellow-
chapter 57 of title 5 U.S.C. 5701, in con- ships may be made for varying periods
junction with travel authorized by the not in excess of 5 years. Such an ap-
Administrator or designee. Included pointment may be extended for varying
under this part is travel from place of periods not in excess of 5 years for each
residence, within or outside the conti- period in accordance with procedures
nental United States, to first duty sta- and requirements established by the
tion; for any change of duty station or- Administrator or designee.
dered by the Administrator or designee
during the term of the fellowship; and § 18.10 Appointment of Special Re-
from last duty station to the place of search Consultants for Environ-
residence which the individual left to mental Protection.
accept the fellowship, or to some other (a) Purpose. When the EPA requires
place at no greater cost to the Govern- the services of consultants with exper-
ment. An Environmental Protection tise in environmental sciences or engi-
Research fellow shall be entitled to neering who cannot be obtained when
travel allowances or transportation needed through regular civil service
and per diem while traveling on official appointment or under the compensa-
business away from his or her perma- tion provisions of the Classification
nent duty station during the term of Act of 1949, Special Research Consult-
the fellowship. Except as otherwise ants may be appointed to assist and ad-
provided herein, an Environmental vise in the operations of the EPA, sub-
Protection Research fellow shall be en- ject to the provisions of the following
titled to travel and transportation al- paragraphs and in accordance with
lowances authorized in this part at the such instructions as may be issued
same rates as may be authorized by from time to time by the Adminis-
law and regulations for other civilian trator or designee.
employees of the EPA. If an Environ- (b) Appointments. Appointments, pur-
mental Protection Research fellow dies suant to the provisions of this section,
during the term of a fellowship, and may be made by those officials in the
the place of residence that was left by EPA to whom authority has been dele-
the fellow to accept the fellowship was gated by the Administrator or des-
outside the continental United States, ignee.
the payment of expenses of preparing (c) Compensation. The per diem or
the remains for burial and transporting other rates of compensation shall be
them to the place of residence for in- fixed by the appointing officer in ac-
terment may be authorized. In the case cordance with criteria established by
of deceased fellows whose place of resi- the Administrator or designee.
dence was within the continental
United States, payment of the expenses § 18.11 Standards of Conduct and Fi-
of preparing the remains and trans- nancial Disclosure.
porting them to the place of residence All individuals appointed to an Envi-
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Environmental Protection Agency § 19.4
current standards and disclosure regu- curred after December 6, 2013 through
lations and requirements as Title 5 ap- November 2, 2015, and to violations oc-
pointees. curring after November 2, 2015, where
penalties were assessed before August
PART 19—ADJUSTMENT OF CIVIL 1, 2016. The statutory civil monetary
MONETARY PENALTIES FOR IN- penalty levels set forth in the fourth
column of Table 2 of § 19.4 apply to all
FLATION violations which occurred after Janu-
ary 12, 2009 through December 6, 2013.
Sec.
19.1 Applicability. The statutory civil monetary penalty
19.2 Effective date. levels set forth in the fifth column of
19.3 [Reserved] Table 2 of § 19.4 apply to all violations
19.4 Statutory civil monetary penalties, as which occurred after March 15, 2004
adjusted for inflation, and tables. through January 12, 2009. The statu-
AUTHORITY: Pub. L. 101–410, Oct. 5, 1990, 104 tory civil monetary penalty levels set
Stat. 890, as amended by Pub. L. 104–134, title forth in the sixth column of Table 2 of
III, sec. 31001(s)(1), Apr. 26, 1996, 110 Stat. § 19.4 apply to all violations which oc-
1321–373; Pub. L. 105–362, title XIII, sec. curred after January 30, 1997 through
1301(a), Nov. 10, 1998, 112 Stat. 3293; Pub. L. March 15, 2004.
114–74, title VII, sec. 701(b), Nov. 2, 2015, 129
Stat. 599. [85 FR 83820, Dec. 23, 2020]
SOURCE: 73 FR 75345, Dec. 11, 2008, unless § 19.3 [Reserved]
otherwise noted.
§ 19.4 Statutory civil monetary pen-
§ 19.1 Applicability. alties, as adjusted for inflation, and
This part applies to each statutory tables.
provision under the laws administered Table 1 of this section sets out the
by the Environmental Protection statutory civil monetary penalty pro-
Agency concerning the civil monetary visions of statutes administered by the
penalties which may be assessed in ei- EPA, with the third column setting out
ther civil judicial or administrative the latest operative statutory civil
proceedings. monetary penalty levels for violations
that occur or occurred after November
§ 19.2 Effective date. 2, 2015, where penalties are assessed on
(a) The statutory civil monetary pen- or after December 23, 2020. The fourth
alty levels set forth in the third col- column displays the operative statu-
umn of Table 1 of § 19.4 apply to all vio- tory civil monetary penalty levels
lations which occur or occurred after where penalties were assessed on or
November 2, 2015, where the penalties after January 13, 2020, but before De-
are assessed on or after December 23, cember 23, 2020. Table 2 of this section
2020. The statutory civil monetary pen- sets out the statutory civil monetary
alty levels set forth in the fourth col- penalty provision of statutes adminis-
umn of Table 1 of § 19.4 apply to all vio- tered by the EPA, with the operative
lations which occurred after November statutory civil monetary penalty lev-
2, 2015, where the penalties were as- els, as adjusted for inflation, for viola-
sessed on or after January 13, 2020, but tions that occurred on or before No-
before December 23, 2020. vember 2, 2015, and for violations that
(b) The statutory monetary penalty occurred after November 2, 2015, where
levels in the third column of Table 2 to penalties were assessed before August
§ 19.4 apply to all violations which oc- 1, 2016.
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VerDate Sep<11>2014
TABLE 1 OF § 19.4—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS
§ 19.4
Jkt 253152
November 2, 2015, were assessed as enacted
where penalties on or after
are assessed January 13, 2020,
on or after but before
December 23, 2020 December 23, 2020
PO 00000
7 U.S.C. 136l(a)(1) ........................................... FEDERAL INSECTICIDE, FUN- $20,528 $20,288 $5,000
GICIDE, AND RODENTICIDE ACT
(FIFRA).
7 U.S.C. 136l(a)(2) 1 ......................................... FIFRA .................................................. 3,011/1,940/3,011 2,976/1,917/2,976 1,000/500/1,000
Frm 00234
15 U.S.C. 2615(a)(1) ........................................ TOXIC SUBSTANCES CONTROL 41,056 40,576 25,000
ACT (TSCA).
15 U.S.C. 2647(a) ............................................. TSCA ................................................... 11,803 11,665 5,000
15 U.S.C. 2647(g) ............................................. TSCA ................................................... 9,753 9,639 5,000
Fmt 8010
31 U.S.C. 3802(a)(1) ........................................ PROGRAM FRAUD CIVIL REMEDIES 11,803 11,665 5,000
224
ACT (PFCRA).
31 U.S.C. 3802(a)(2) ........................................ PFCRA ................................................. 11,803 11,665 5,000
33 U.S.C. 1319(d) ............................................. CLEAN WATER ACT (CWA) .............. 56,460 55,800 25,000
33 U.S.C. 1319(g)(2)(A) ................................... CWA .................................................... 22,584/56,460 22,320/55,800 10,000/25,000
Sfmt 8010
33 U.S.C. 1319(g)(2)(B) ................................... CWA .................................................... 22,584/282,293 22,320/278,995 10,000/125,000
33 U.S.C. 1321(b)(6)(B)(i) ................................ CWA .................................................... 19,505/48,762 19,277/48,192 10,000/25,000
33 U.S.C. 1321(b)(6)(B)(ii) ............................... CWA .................................................... 19,505/243,808 19,277/240,960 10,000/125,000
33 U.S.C. 1321(b)(7)(A) ................................... CWA .................................................... 48,762/1,951 48,192/1,928 25,000/1,000
33 U.S.C. 1321(b)(7)(B) ................................... CWA .................................................... 48,762 48,192 25,000
33 U.S.C. 1321(b)(7)(C) ................................... CWA .................................................... 48,762 48,192 25,000
33 U.S.C. 1321(b)(7)(D) ................................... CWA .................................................... 195,047/5,851 192,768/5,783 100,000/3,000
33 U.S.C. 1414b(d)(1) ...................................... MARINE PROTECTION, RESEARCH, 1,299 1,284 600
AND SANCTUARIES ACT
Y:\SGML\253152.XXX
(MPRSA).
33 U.S.C. 1415(a) ............................................. MPRSA ................................................ 205,276/270,784 202,878/267,621 50,000/125,000
33 U.S.C. 1901 note (see 1409(a)(2)(A)) ......... CERTAIN ALASKAN CRUISE SHIP 14,966/37,412 14,791/36,975 10,000/25,000
OPERATIONS (CACSO).
253152
33 U.S.C. 1901 note (see 1409(a)(2)(B)) ......... CACSO ................................................ 14,966/187,059 14,791/184,874 10,000/125,000
33 U.S.C. 1901 note (see 1409(b)(1)) ............. CACSO ................................................ 37,412 36,975 25,000
33 U.S.C. 1908(b)(1) ........................................ ACT TO PREVENT POLLUTION 76,764 75,867 25,000
FROM SHIPS (APPS).
40 CFR Ch. I (7–1–21 Edition)
VerDate Sep<11>2014
42 U.S.C. 300g–3(b) ......................................... SAFE DRINKING WATER ACT 59,017 58,328 25,000
(SDWA).
42 U.S.C. 300g–3(g)(3)(A) ............................... SDWA .................................................. 59,017 58,328 25,000
Jkt 253152
42 U.S.C. 300h–2(c)(2) .................................... SDWA .................................................. 11,803/295,088 11,665/291,641 5,000/125,000
42 U.S.C. 300h–3(c) ......................................... SDWA .................................................. 20,528/43,792 20,288/43,280 5,000/10,000
42 U.S.C. 300i(b) .............................................. SDWA .................................................. 24,674 24,386 15,000
42 U.S.C. 300i–1(c) .......................................... SDWA .................................................. 143,621/1,436,220 141,943/1,419,442 100,000/1,000,000
42 U.S.C. 300j(e)(2) ......................................... SDWA .................................................. 10,263 10,143 2,500
PO 00000
42 U.S.C. 300j–4(c) .......................................... SDWA .................................................. 59,017 58,328 25,000
42 U.S.C. 300j–6(b)(2) ..................................... SDWA .................................................. 41,120 40,640 25,000
42 U.S.C. 300j–23(d) ........................................ SDWA .................................................. 10,832/108,315 10,705/107,050 5,000/50,000
42 U.S.C. 4852d(b)(5) ...................................... RESIDENTIAL LEAD-BASED PAINT 18,364 18,149 10,000
Frm 00235
HAZARD REDUCTION ACT OF
Environmental Protection Agency
1992.
42 U.S.C. 4910(a)(2) ........................................ NOISE CONTROL ACT OF 1972 ....... 38,805 38,352 10,000
42 U.S.C. 6928(a)(3) ........................................ RESOURCE CONSERVATION AND 102,638 101,439 25,000
RECOVERY ACT (RCRA).
Fmt 8010
42 U.S.C. 6928(c) ............................................. RCRA ................................................... 61,820 61,098 25,000
225
42 U.S.C. 6928(g) ............................................. RCRA ................................................... 76,764 75,867 25,000
42 U.S.C. 6928(h)(2) ........................................ RCRA ................................................... 61,820 61,098 25,000
42 U.S.C. 6934(e) ............................................. RCRA ................................................... 15,352 15,173 5,000
Sfmt 8010
42 U.S.C. 6973(b) ............................................. RCRA ................................................... 15,352 15,173 5,000
42 U.S.C. 6991e(a)(3) ...................................... RCRA ................................................... 61,820 61,098 25,000
42 U.S.C. 6991e(d)(1) ...................................... RCRA ................................................... 24,730 24,441 10,000
42 U.S.C. 6991e(d)(2) ...................................... RCRA ................................................... 24,730 24,441 10,000
42 U.S.C. 7413(b) ............................................. CLEAN AIR ACT (CAA) ...................... 102,638 101,439 25,000
42 U.S.C. 7413(d)(1) ........................................ CAA ..................................................... 48,762/390,092 48,192/385,535 25,000/200,000
42 U.S.C. 7413(d)(3) ........................................ CAA ..................................................... 9,753 9,639 5,000
42 U.S.C. 7524(a) ............................................. CAA ..................................................... 48,762/4,876 48,192/4,819 25,000/2,500
42 U.S.C. 7524(c)(1) ........................................ CAA ..................................................... 390,092 385,535 200,000
Y:\SGML\253152.XXX
42 U.S.C. 7545(d)(1) ........................................ CAA ..................................................... 48,762 48,192 25,000
42 U.S.C. 9604(e)(5)(B) ................................... COMPREHENSIVE ENVIRON- 59,017 58,328 25,000
MENTAL RESPONSE, COM-
PENSATION, AND LIABILITY ACT
253152
(CERCLA).
42 U.S.C. 9606(b)(1) ........................................ CERCLA .............................................. 59,017 58,328 25,000
42 U.S.C. 9609(a)(1) ........................................ CERCLA .............................................. 59,017 58,328 25,000
42 U.S.C. 9609(b) ............................................. CERCLA .............................................. 59,017/177,053 58,328/174,985 25,000/75,000
§ 19.4
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TABLE 1 OF § 19.4—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS—Continued
§ 19.4
Jkt 253152
November 2, 2015, were assessed as enacted
where penalties on or after
are assessed January 13, 2020,
on or after but before
December 23, 2020 December 23, 2020
PO 00000
42 U.S.C. 11045(a) ........................................... EMERGENCY PLANNING AND COM- 59,017 58,328 25,000
MUNITY RIGHT-TO-KNOW ACT
(EPCRA).
42 U.S.C. 11045(b)(1)(A) ................................. EPCRA ................................................ 59,017 58,328 25,000
Frm 00236
42 U.S.C. 11045(b)(2) ...................................... EPCRA ................................................ 59,017/177,053 58,328/174,985 25,000/75,000
42 U.S.C. 11045(b)(3) ...................................... EPCRA ................................................ 59,017/177,053 58,328/174,985 25,000/75,000
42 U.S.C. 11045(c)(1) ...................................... EPCRA ................................................ 59,017 58,328 25,000
42 U.S.C. 11045(c)(2) ...................................... EPCRA ................................................ 23,607 23,331 10,000
Fmt 8010
42 U.S.C. 11045(d)(1) ...................................... EPCRA ................................................ 59,017 58,328 25,000
226
42 U.S.C. 14304(a)(1) ...................................... MERCURY-CONTAINING AND RE- 16,450 16,258 10,000
CHARGEABLE BATTERY MAN-
AGEMENT ACT (BATTERY ACT).
Sfmt 8010
42 U.S.C. 14304(g) ........................................... BATTERY ACT .................................... 16,450 16,258 10,000
1 Note that 7 U.S.C. 136l(a)(2) contains three separate statutory maximum civil penalty provisions. The first mention of $1,000 and the $500 statutory maximum
civil penalty amount were originally enacted in 1978 (Pub. L. 95–396), and the second mention of $1,000 was enacted in 1972 (Pub. L. 92–516).
Y:\SGML\253152.XXX
253152
40 CFR Ch. I (7–1–21 Edition)
Environmental Protection Agency § 19.4
227
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§ 19.4 40 CFR Ch. I (7–1–21 Edition)
228
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Environmental Protection Agency § 20.1
229
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§ 20.2 40 CFR Ch. I (7–1–21 Edition)
for purposes of section 169 of the Inter- of, stores, or prevents the creation of
nal Revenue Code of 1954, as amended, pollutants, contaminants, wastes, or
26 U.S.C. 169, as to which the amortiza- heat.
tion period began after December 31, (g) State means the States, the Dis-
1975. Certification of air or water pollu- trict of Columbia, the Commonwealth
tion control facilities as to which the of Puerto Rico, the Canal Zone, Guam,
amortization period began before Janu- American Samoa, the Virgin Islands,
ary 1, 1976, will continue to be governed and the Trust Territory of the Pacific
by Environmental Protection Agency Islands.
regulations published November 25,
1971, at 36 FR 22382. Applicable regula- [36 FR 22382, Nov. 25, 1971, as amended at 43
FR 1340, Jan. 9, 1978]
tions of the Department of Treasury
are at 26 CFR 1.169 et seq. § 20.3 General provisions.
[43 FR 1340, Jan. 9, 1978]
(a) An applicant shall file an applica-
§ 20.2 Definitions. tion in accordance with this part for
each separate facility for which certifi-
As used in this part, the following cation is sought; Provided, That one ap-
terms shall have the meaning indicated plication shall suffice in the case of
below: substantially identical facilities which
(a) Act means, when used in connec- the applicant has installed or plans to
tion with water pollution control fa- install in connection with substan-
cilities, the Federal Water Pollution tially identical properties; Provided fur-
Control Act, as amended (33 U.S.C. 1251 ther, That an application may incor-
et seq.) or, when used in connection
porate by reference material contained
with air pollution control facilities,
in an application previously submitted
the Clean Air Act, as amended (42
by the applicant under this part and
U.S.C. 1857 et seq.).
pertaining to substantially identical
(b) State certifying authority means:
facilities.
(1) For water pollution control facili-
ties, the State pollution control agency (b) The applicant shall, at the time of
as defined in section 502 of the Act. application to the State certifying au-
(2) For air pollution control facili- thority, submit an application in the
ties, the air pollution control agency form prescribed by the Administrator
designated pursuant to section 302(b)(1) to the Regional Administrator for the
of the Act; or region in which the facility is located.
(3) For both air and water pollution (c) Applications will be considered
control facilities, any interstate agen- complete and will be processed when
cy authorized to act in place of the cer- the Regional Administrator receives
tifying agency of a State. the completed State certification.
(c) Applicant means any person who (d) Applications may be filed prior or
files an application with the Adminis- subsequent to the commencement of
trator for certification that a facility construction, acquisition, installation,
is in compliance with the applicable or operation of the facility.
regulations of Federal agencies and in (e) An amendment to an application
furtherance of the general policies of shall be submitted in the same manner
the United States for cooperation with as the original application and shall be
the States in the prevention and abate- considered a part of the original appli-
ment of water or air pollution under cation.
the Act. (f) If the facility is certified by the
(d) Administrator means the Adminis- Regional Administrator, notice of cer-
trator, Environmental Protection tification will be issued to the Sec-
Agency. retary of the Treasury or his delegate,
(e) Regional Administrator means the and a copy of the notice shall be for-
Regional designee appointed by the Ad- warded to the applicant and to the
ministrator to certify facilities under State certifying authority. If the facil-
this part. ity is denied certification, the Regional
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(f) Facility means property com- Administrator will advise the applicant
prising any new identifiable treatment and State certifying authority in writ-
facility which removes, alters, disposes ing of the reasons therefor.
230
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Environmental Protection Agency § 20.5
231
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§ 20.6 40 CFR Ch. I (7–1–21 Edition)
(i) Date when such facility is placed taries thereof; to improve the sanitary
(or is intended to be placed) in oper- condition of surface and underground
ation; waters; and to conserve such waters for
(j) Identification of the applicable public water supplies, propagation of
State and local water or air pollution fish and aquatic life and wildlife, rec-
control requirements and standards, if reational purposes, and agricultural,
any; industrial, and other legitimate uses.
(k) Expected useful life of facility; (b) The general policy of the United
(l) Cost of construction, acquisition, States for cooperation with the States
installation, operation, and mainte- in the prevention and abatement of air
nance of the facility; pollution is to cooperate with and to
(m) Estimated profits reasonably ex- assist the States and local govern-
pected to be derived through the recov- ments in protecting and enhancing the
ery of wastes or otherwise in the oper- quality of the Nation’s air resources by
ation of the facility over the period re- the prevention and abatement of condi-
ferred to in paragraph (a)(6) of 26 CFR tions which cause or contribute to air
1.169–2; pollution which endangers the public
(n) The percentage (if any, and if the health or welfare.
taxpayer claims that the percentage is
5 percent or less) by which the facility § 20.8 Requirements for certification.
(1) increases the output or capacity, (2) (a) Subject to § 20.9, the Regional Ad-
extends the useful life, or (3) reduces ministrator will certify a facility if he
the total operating costs of the oper- makes the following determinations:
ating unit of the plant or other prop- (1) It has been certified by the State
erty most directly associated with the certifying authority.
pollution control facility and a descrip- (2) That the facility:
tion of the reasoning and accounting (i) Removes, alters, disposes of,
method or methods used to arrive at stores, or prevents the creation of pol-
this percentage. lutants, contaminants, wastes, or heat,
(o) Such other information as the Ad- which, but for the facility, would be re-
ministrator deems necessary for cer- leased into the environment;
tification. (ii) Does not by a factor or more than
[36 FR 22382, Nov. 25, 1971, as amended at 43 5 percent: (A) Increase the output or
FR 1340, Jan. 9, 1978] capacity, (B) extend the useful life, or
(C) reduce the total operating costs of
§ 20.6 State certification. the operating unit (of the plant or
The State certification shall be by other property) most directly associ-
the State certifying authority having ated with the pollution control facil-
jurisdiction with respect to the facility ity; and
in accordance with 26 U.S.C. (iii) Does not significantly alter the
169(d)(1)(A) and (d)(2). The certification nature of the manufacturing or produc-
shall state that the facility described tion process or facility.
in the application has been con- (3) The applicant is in compliance
structed, reconstructed, erected, or ac- with all regulations of Federal agen-
quired in conformity with the State cies applicable to use of the facility,
program or requirements for abate- including conditions specified in any
ment or control of water or air pollu- NPDES permit issued to the applicant
tion. It shall be executed by an agent under section 402 of the Act.
or officer authorized to act on behalf of (4) The facility furthers the general
the State certifying authority. policies of the United States and the
States in the prevention and abate-
§ 20.7 General policies. ment of pollution.
(a) The general policies of the United (5) The applicant has complied with
States for cooperation with the States all the other requirements of this part
in the prevention and abatement of and has submitted all requested infor-
water pollution are: To enhance the mation.
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quality and value of our water re- (b) In determining whether use of a
sources; to eliminate or reduce the pol- facility furthers the general policies of
lution of the nation’s waters and tribu- the United States and the States in the
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Environmental Protection Agency § 20.10
prevention and abatement of water pol- (e) Where a facility is used in connec-
lution, the Regional Administrator tion with more than one plant or other
shall consider whether such facility is property, one or more of which were
consistent with the following, insofar not in operation before January 1, 1976,
as they are applicable to the waters or where a facility will perform a func-
which will be affected by the facility: tion other than the removal, alter-
(1) All applicable water quality ation, storage, disposal, or prevention
standards, including water quality cri- of pollutants, contaminants, wastes, or
teria and plans of implementation and heat, the Regional Administrator will
enforcement established pursuant to so indicate on the notice of certifi-
section 303 of the Act or State laws or cation and will approve or disapprove
regulations; the applicant’s suggested method of al-
(2) Decisions issued pursuant to sec- locating costs. If the Regional Admin-
tion 310 of the Act; istrator disapproves the applicant’s
(3) Water pollution control programs suggested method, he shall identify the
required pursuant to any one or more proportion of costs allocable to each
of the following sections of the Act: such plant, or to the removal, alter-
Section 306, section 307, section 311, ation, storage, disposal, or prevention
section 318, or section 405; or in order of pollutants, contaminants, wastes, or
to be consistent with a plan under sec- heat.
tion 208. [36 FR 22382, Nov. 25, 1971, as amended at 43
(c) In determining whether use of a FR 1341, Jan. 9, 1978]
facility furthers the general policies of
the United States and the States in the § 20.9 Cost recovery.
prevention and abatement of air pollu- Where it appears that, by reason of
tion, the Regional Administrator shall estimated profits to be derived through
consider whether such facility is con- the recovery of wastes, through sepa-
sistent with and meets the following rate charges for use of the facility in
requirements, insofar as they are appli- question, or otherwise in the operation
cable to the air which will be affected of such facility, all or a portion of its
by the facility; costs may be recovered over the period
(1) Plans for the implementation, referred to in paragraph (a)(6) of 26
maintenance, and enforcement of am- CFR 1.169–2, the Regional Adminis-
bient air quality standards adopted or trator shall so signify in the notice of
promulgated pursuant to section 110 of certification. Determinations as to the
the Act; meaning of the term estimated profits
(2) Recommendations issued pursuant and as to the percentage of the cost of
to sections 103(e) and 115 of the Act a certified facility which will be recov-
which are applicable to facilities of the ered over such period shall be made by
same type and located in the area to the Secretary of the Treasury, or his
which the recommendations are di- delegate: Provided, That in no event
rected; shall estimated profits be deemed to
(3) Local government requirements arise from the use or reuse by the ap-
for control of air pollution, including plicant of recovered waste.
emission standards;
(4) Standards promulgated by the Ad- § 20.10 Revocation.
ministrator pursuant to the Act. Certification hereunder may be re-
(d) A facility that removes elements voked by the Regional Administrator
or compounds from fuels that would be on 30 days written notice to the appli-
released as pollutants when such fuels cant, served by certified mail, when-
are burned is eligible for certification ever the Regional Administrator shall
if the facility is— determine that the facility in question
(1) Used in connection with a plant or is no longer being operated consistent
other property in operation before Jan- with the § 20.8 (b) and (c) criteria in ef-
uary 1, 1976 (whether located and used fect at the time the facility was placed
at a particular plant or as a centralized in service. Within such 30-day period,
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facility for one or more plants), and the applicant may submit to the Re-
(2) Is otherwise eligible for certifi- gional Administrator such evidence,
cation. data or other written materials as the
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Pt. 20, App. A 40 CFR Ch. I (7–1–21 Edition)
applicant may deem appropriate to (d) Certified by both State and Federal au-
show why the certification hereunder thorities, as provided in section 169(d)(1) (A)
should not be revoked. Notification of and (B) of the Internal Revenue Code.
If the facility is a building, the statute re-
a revocation under this section shall be
quires that it be exclusively devoted to pol-
given to the Secretary of the Treasury lution control. Most questions as to whether
or his delegate. See 26 CFR 1.169–4(b)(1). a facility is a building and, if so, whether it
is exclusively devoted to pollution control are
APPENDIX A TO PART 20—GUIDELINES resolved by § 1.169–2(b)(2) of the Treasury De-
FOR CERTIFICATION partment regulations.
Since a treatment facility is eligible only
1. General. if it furthers the general policies of the
2. Air Pollution Control Facilities. United States under the Clean Air Act and
a. Pollution control or treatment facilities the Clean Water Act, a facility will be cer-
normally eligible for certification. tified only if its purpose is to improve the
b. Air pollution control facility bound- quality of the air or water outside the plant.
aries. Facilities to protect the health or safety of
c. Examples of eligibility limits. employees inside the plant are not eligible.
d. Replacement of manufacturing process Facilities installed before January 1, 1976,
by another nonpolluting process. in plants placed in operation after December
3. Water Pollution Control Facilities. 31, 1968, are ineligible for certification under
a. Pollution control or treatment facilities the statute. 26 U.S.C. 169.
normally eligible for certification. 2. Air pollution control facilities.
b. Examples of eligibility limits. a. Pollution control or treatment facilities nor-
4. Multiple-purpose facilities. mally eligible for certification. The following
5. Facilities serving both old and new plants. devices are illustrative of facilities for re-
moval, alteration, disposal, storage or pre-
6. State certification.
venting the creation or emission of air pollu-
7. Dispersal of pollutants.
tion:
8. Profit-making facilities. (1) Inertial separators (cyclones, etc.).
9. Multiple applications. (2) Wet collection devices (scrubbers).
1. General. Section 2112 of the Tax Reform (3) Electrostatic precipitators.
Act of 1976 (Pub. L. 94–455, October 4, 1976) (4) Cloth filter collectors (baghouses).
amended section 169 of the Internal Revenue (5) Director fired afterburners.
Code of 1954, ‘‘Amortization of Pollution (6) Catalytic afterburners.
Control Facilities.’’ The amendment made (7) Gas absorption equipment.
permanent the rapid amortization provisions (8) Vapor condensers.
of section 704 of the Tax Reform Act of 1969 (9) Vapor recovery systems.
(Pub. L. 91–172, December 30, 1969) and rede- (10) Floating roofs for storage tanks.
fined eligibility limits to allow certification (11) Fuel cleaning equipment.
of facilities which prevent the creation or (12) Combinations of the above.
emission of pollutants. (b) Air Pollution control facility boundaries.
The law defines a certified pollution control Most facilities are systems consisting of sev-
facility as a new identifiable treatment facility eral parts. A facility need not start at the
which is: point where the gaseous effluent leaves the
(a) Used in connection with a plant or last unit of the processing equipment, nor
other property in operation before January will it always extend to the point where the
1, 1976, to abate or control air or water pollu- effluent is emitted to the atmosphere or ex-
tion by removing, altering, disposing of, isting stack, breeching, ductwork or vent. It
storing, or preventing the creation or emis- includes all the auxiliary equipment used to
sion of pollutants, contaminants, wastes, or operate the control system, such as fans,
heat; blowers, ductwork, valves, dampers and elec-
(b) Constructed, reconstructed, erected or trical equipment. It also includes all equip-
(if purchased) first placed in service by the ment used to handle, store, transport or dis-
taxpayer after December 31, 1975; pose of the collected pollutants.
(c) Not to significantly increase the output (c) Examples of eligibility limits. The amorti-
or capacity, extend the useful life, alter the zation deduction is limited to new identifi-
nature of the manufacturing or production able treatment facilities which remove,
process or facility or reduce the total oper- alter, destroy, dispose of, store, or prevent
ating costs of the operating unit of the plant the creation or emission of pollutants, con-
or other property most directly associated taminants or wastes. It is not available for
with the pollution control facility (as sug- all expenditures for air pollution control and
gested by the legislative history, EPA regu- is limited to devices which are installed for
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lations define the term significant as any in- the purpose of pollution control and which
crease, reduction or extension greater than actually remove, alter, destroy, dispose of,
5%); and store or prevent the creation or emission of
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Environmental Protection Agency Pt. 20, App. A
pollutants by removing potential pollutants does not qualify for certification where it
at any stage of the production process. uses a process known to be cleaner than an
(1) Boiler modifications or replacements. alternative, but which does not actually re-
Modifications of boilers to accommodate move, alter, destroy, dispose of, store or pre-
cleaner fuels are not eligible for rapid amor- vent the creation or emission of pollutants
tization: e.g., removal of stokers from a coal- by removing potential pollutants at any
fired boiler and the addition of gas or oil stage in the production process. For exam-
burners. The purpose of the burners is to ple, a minimally polluting electric induction
produce heat, and they are not identifiable furnace to melt cast iron which replaces, or
as treatment facilities nor do they prevent is installed instead of, a heavily polluting
the creation or emission of pollutants by re- iron cupola furnace would be ineligible for
moving potential pollutants. A new gas or this reason and because it is not an identifi-
oil-fired boiler that replaces a coal-fired boil- able treatment facility. However, if the re-
er would also be ineligible for certification. placement equipment has an air pollution
(2) Fuel processing. Eligible air pollution control device added to it, the control device
control facilities include preprocessing would be eligible even though the process
equipment which removes potential air pol- equipment would not. For example, where a
lutants from fuels before they are burned. A primary copper smelting reverberatory fur-
desulfurization facility would thus be eligi- nace is replaced by a flash smelting furnace,
ble provided it is used in connection with the followed by the installation of a contact sul-
plant where the desulfurized coal will be furic acid plant, the acid plant would qualify
burned or is used as a centralized facility for since it is a control device not necessary to
one or more plants. However, fluidized bed the production process. The flash smelting
facilities would generally not be eligible for furnace would not qualify because its pur-
rapid amortization. Such facilities would al- pose is to produce copper matte.
most certainly increase output or capacity, 3. Water Pollution Control Facilities.
reduce total operating costs, or extend the a. Pollution control or treatment facilities nor-
useful life of the plant or other property by mally eligible for certification. The following
more than 5%, since the boiler itself would types of equipment are illustrative of facili-
be the operating unit of the plant most ties to remove, alter, destroy, store or pre-
closely associated with the pollution control vent the creation of water pollution:
facility. Where the Regional Office and the (1) Pretreatment facilities which neu-
taxpayer disagree as to the applicability of tralize or stabilize industrial or sanitary
the 5% rule, the Regional office should none- wastes, or both, from a point immediately
theless certify the facility if it is otherwise preceding the point of such treatment to the
eligible and leave the ultimate determina- point of disposal to, and acceptance by, a
tion to the Treasury Department. The cer- publicly-owned treatment works. The nec-
tification should alert Treasury to the possi- essary pumping and transmitting facilities
bility that the facility is ineligible for rapid are also eligible.
amortization. (2) Treatment facilities which neutralize or
(3) Incinerators. The addition of an after- stabilize industrial or sanitary wastes, or
burner, secondary combustion chamber or both, to comply with Federal, State or local
particulate collector would be eligible as effluent or water quality standards, from a
would any device added to effect more effi- point immediately preceding the point of
cient combustion. such treatment to the point of disposal, in-
(4) Collection devices used to collect products cluding necessary pumping and transmitting
or process material. In some manufacturing facilities, including those for recycle or seg-
operations, devices are used to collect prod- regation of wastewater.
uct or process material, as in the case of the (3) Ancillary devices and facilities such as
manufacture of carbon black. The baghouse lagoons, ponds and structures for storage, re-
would be eligible for certification, but the cycle, segregation or treatment, or any com-
certification should notify the Treasury De- bination of these, of wastewaters or wastes
partment of the profitable waste recovery in- from a plant or other property.
volved. (See paragraph 8 below.) (4) Devices, equipment or facilities con-
(5) Intermittent control systems. Measuring structed or installed for the primary purpose
devices which inform the taxpayer that am- of recovering a by-product of the operation
bient air quality standards are being exceed- (saleable or otherwise) previously lost either
ed are not eligible for certification since to the atmosphere or to the waste effluent.
they do not physically remove, alter, de- Examples are:
stroy, dispose of, store or prevent the cre- (A) A facility to concentrate and recover
ation or emission of pollutants, but merely vaporous by-products from a process stream
act as a signal to curtail operations. Of for reuse as raw feedstock or for resale, un-
course, measuring devices used in connection less the estimated profits from resale exceed
with an eligible pollution control facility the cost of the facility (see paragraph 8
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Pt. 20, App. A 40 CFR Ch. I (7–1–21 Edition)
materials from the process waste effluent cost of the control facility would be eligible
previously discharged in the plant effluents. for rapid amortization.
Removal may occur at any stage of the pro- If a taxpayer presents a seemingly reason-
duction process. able method of allocation different from the
(C) A device used to extract or remove in- foregoing, Regional Office personnel should
soluble constitutents from a solid or liquid consult with the Office of Air Quality Plan-
by use of a selective solvent; an open or ning and Standards or the Office of Water
closed tank or vessel in which such extrac- Planning and Standards, and with the Office
tion or removal occurs; a diffusion battery of of General Counsel.
tanks or vessels for countercurrent decanta- 6. State certification. To qualify for rapid
tion, extraction, or leaching, etc. amortization under section 169, a facility
(D) A skimmer or similar device for remov- must first be certified by the State as having
ing grease, oils and fat-like materials from been installed ‘‘in conformity with the State
the process or effluent stream. program or requirements for abatement or
(b) Examples of eligibility limits. (1) In-plant control of water or atmospheric pollution or
process changes which may result in the re- contamination.’’ Significantly, the statute
duction or elimination of pollution but does not say that the State must require
which do not themselves remove, alter, de- that a facility be installed. If use of a facil-
stroy, dispose of, store or prevent the cre- ity will not actually contravene a State re-
ation of pollutants by removing potential quirement, the State may certify. However,
pollutants at some point in the process since State certification is a prerequisite to
stream are not eligible for certification. EPA certification, EPA may not certify if
(2) A device, piece of equipment or facility the State has denied certification for what-
is not eligible if it is associated with or in- ever reason.
cluded in a stream for subsurface injection of It should be noted that certification of a
untreated or inadequately treated industrial facility does not constitute the personal war-
or sanitary waste. ranty of the certifying official that the con-
4. Multiple-purpose facilities. A facility can ditions of the statute have been met. EPA
qualify for rapid amortization if it serves a certification is binding on the Government
function other than the abatement of pollu- only to the extent the submitted facts are
tion (unless it is a building). Otherwise, the accurate and complete.
effect might be to discourage installation of 7. Dispersal of pollutants. Section 169 applies
sensible pollution abatement facilities in to facilities which remove, alter, destroy,
favor of less efficient single-function facili- dispose of, store or prevent the creation or
ties. emission of pollutants—including heat. Fa-
The regulations require applicants to state cilities which merely disperse pollutants
what percentage of the cost of a facility is (such as tall stacks) do not qualify. However,
properly allocable to its abatement function there is no way to dispose of heat other than
and to justify the allocation. The Regional by transferring B.t.u.’s to the environment.
Office will review these allocations, and the A cooling tower is therefore eligible for cer-
certification will inform the Treasury De- tification provided it is used in connection
partment if the allocation appears to be in- with a pre-1976 plant. A cooling pond or an
correct. Although not generally necessary or addition to an outfall structure which re-
desireable, site inspections may be appro- sults in a decrease in the amount by which
priate in cases involving large sums of the temperature of the receiving water is
money or unusual types of equipment. raised and which meets applicable State
5. Facilities serving both old and new plants. standards is likewise eligible.
The statute provides that pollution control 8. Profit-making facilities. The statute de-
facilities must be used in connection with a nies rapid amortization where the cost of
plant or other property in operation before pollution control facilities will be recovered
January 1, 1976. When a facility is used in from profits derived through the recovery or
connection with both pre-1976 and newer wastes or otherwise.
property, it may qualify for rapid amortiza- If a facility recovers marketable wastes,
tion to the extent it is used in connection estimated profits on which are not sufficient
with pre-1976 property. to recover the entire cost of the facility, the
Again, the applicant will submit a theory amortization basis of the facility will be re-
of allocation for review by the Regional Of- duced in accordance with Treasury Depart-
fice. The usual method of allocation is to ment regulations. The responsibility of the
compare the effluent capacity of the pre-1976 Regional Offices is merely to identify for the
plant to the treatment capacity of the con- Treasury Department those cases in which
trol facility. For example, if the old plant estimated profits will arise. The Treasury
has a capacity of 80 units of effluent (but an Department will determine the amount of
average output of 60 units), the new plant such profits and the extent to which they
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has a capacity of 40 units (but an average can be expected to result in cost recovery,
output of 20 units), and the control facility but the EPA certification should inform the
has a capacity of 150 units, then 80⁄150 of the Treasury whether cost recovery is possible.
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Environmental Protection Agency § 21.2
The phrase or otherwise also includes situa- 21.4 Review of application.
tions where the taxpayer is in the business of 21.5 Issuance of statements.
renting the facility for a fee or charging for 21.6 Exclusions.
the treatment of waste. In such cases, the fa- 21.7 [Reserved]
cility may theoretically qualify for EPA cer- 21.8 Resubmission of application.
tification. The decision as to the extent of 21.9 Appeals.
its profitability is for the Treasury Depart- 21.10 Utilization of the statement.
ment. Situations may also arise where use of 21.11 Public participation.
a facility is furnished at no additional 21.12 State issued statements.
charge to a number of users, or to the public, 21.13 Effect of certification upon authority
as part of a package of other services. In to enforce applicable standards.
such cases, no profits will be deemed to arise AUTHORITY: 15 U.S.C. 636, as amended by
from operation of the facility unless the Pub. L. 92–500.
other services included in the package are
merely ancillary to use of the facility. Of SOURCE: 42 FR 8083, Feb. 8, 1977, unless oth-
course, the cost recovery provision does not erwise noted.
apply where a taxpayer merely recovers the
cost of a facility through general revenues; § 21.1 Scope.
otherwise no profitable firm would ever be This part establishes procedures for
eligible for rapid amortization.
It should be noted that § 20.9 of the EPA
the issuance by EPA of the statements,
regulation is not meant to affect general referred to in section 7(g) of the Small
principles of Federal income tax law. An in- Business Act and section 8 of the Fed-
dividual other than the title holder of a piece eral Water Pollution Control Act
of property may be entitled to take deprecia- Amendments of 1972, to the effect that
tion deductions on it if the arrangements by additions to or alterations in the
which such individual has use of the prop- equipment, facilities (including the
erty may, for all practical purposes, be
construction of pretreatment facilities
viewed as a purchase. In any such case, the
facility could qualify for full rapid amortiza- and interceptor sewers), or methods of
tion, notwithstanding the fact that the title operations of small business concerns
holder charges a separate fee for the use of are necessary and adequate to comply
the facility, so long as the taxpayer—in such with requirements established under
a case, the user—does not charge a separate the Federal Water Pollution Control
fee for use of the facility. Act, 33 U.S.C. 1151, et seq.
9. Multiple applications. Under EPA regula-
tions, a multiple application may be sub- § 21.2 Definitions.
mitted by a taxpayer who applies for certifi-
cation of substantially identical pollution (a) Small business concern means a
abatement facilities used in connection with concern defined by section 2[3] of the
substantially identical properties. It is not Small Business Act, 15 U.S.C. 632, 13
contemplated that the multiple application CFR part 121, and regulations of the
option will be used with respect to facilities Small Business Administration pro-
in different States, since each such facility
mulgated thereunder.
would require a separate application for cer-
tification to the State involved. EPA regula- (b) For purposes of paragraph 7(g)(2)
tions also permit an applicant to incorporate of the Small Business Act, necessary
by reference in an application material con- and adequate refers to additions, alter-
tained in an application previously filed. The ations, or methods of operation in the
purpose of this provision is to avoid the bur- absence of which a small business con-
den of furnishing detailed information cern could not comply with one or
(which may in some cases include portions of more applicable standards. This can be
catalogs or process flow diagrams) which the
certifying official has previously received. determined with reference to design
Accordingly, material filed with a Regional specifications provided by manufactur-
Office of EPA may be incorporated by ref- ers, suppliers, or consulting engineers;
erence only in an application subsequently including, without limitations, addi-
filed with the same Regional Office. tions, alterations, or methods of oper-
[47 FR 38319, Aug. 31, 1982] ation the design specifications of which
will provide a measure of treatment or
PART 21—SMALL BUSINESS abatement of pollution in excess of
that required by the applicable stand-
ard.
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Sec.
21.1 Scope. (c) Applicable Standard means any re-
21.2 Definitions. quirement, not subject to an exception
21.3 Submission of applications. under § 21.6, relating to the quality of
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§ 21.2 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 21.3
(r) Lateral sewer means a sewer which made to the EPA Regional Office for
connects the collector sewer to the in- the region covering the State in which
terceptor sewer. the additions, alterations, or methods
(s) Interceptor sewer means a sewer of operation covered by the application
whose primary purpose is to transport are located. A listing of EPA Regional
wastewaters from collector sewers to a Offices, with their mailing addresses,
treatment facility. and setting forth the States within
§ 21.3 Submission of applications. each region is as follows:
(a) Applications for the statement de-
scribed in § 21.5 of this part shall be
Region Address State
I .............. Regional Administrator, Region I, EPA, 5 Post Office Connecticut, Maine, Massachusetts, New Hamp-
Square—Suite 100, Boston, MA 02109–3912. shire, Rhode Island, and Vermont.
II ............. Regional Administrator, region II, EPA, 26 Federal Plaza, New Jersey, New York, Virgin Islands, and Puerto
room 908, New York, NY 10007. Rico.
III ............ Regional Administrator, region III, EPA, Curtis Bldg., 6th and Delaware, District of Columbia, Pennsylvania, Mary-
Walnut Sts., Philadelphia, PA 19106. land, Virginia, and West Virginia.
IV ........... Regional Administrator, region IV, EPA, 345 Courtland St. Alabama, Florida, Georgia, Kentucky, Mississippi,
NE., Atlanta, GA 30308. North Carolina, South Carolina, and Tennessee.
V ............ Regional Administrator, region V, EPA, 77 West Jackson Illinois, Indiana, Michigan, Minnesota, Ohio, and
Boulevard, Chicago, IL 60604. Wisconsin.
VI ........... Regional Administrator, EPA Region 6, 1201 Elm Street, Arkansas, Louisiana, New Mexico, Oklahoma, and
Suite 500, Dallas, Texas 75270–2102. Texas.
VII .......... Regional Administrator, EPA Region VII, 11201 Renner Bou- Iowa, Kansas, Missouri, and Nebraska.
levard, Lenexa, Kansas 66219.
VIII ......... Regional Administrator, region VIII, EPA, 1860 Lincoln St., Colorado, Montana, North Dakota, South Dakota,
Suite 900, Denver, CO 80203. Utah, and Wyoming.
IX ........... Regional Administrator, Region IX, EPA, 75 Hawthorne St., Arizona, California, Hawaii, Nevada, the territories of
San Francisco, CA 94105. American Samoa and Guam; the Commonwealth
of the Northern Mariana Islands; the territories of
Baker Island, Howland Island, Jarvis Island, John-
ston Atoll, Kingman Reef, Midway Atoll, Palmyra
Atoll, and Wake Islands; and certain U.S. Govern-
ment activities in the freely associated states of
the Republic of the Marshall Islands, the Fed-
erated States of Micronesia, and the Republic of
Palau.
X ............ Regional Administrator, region X, EPA, 1200 6th Ave., Se- Alaska, Idaho, Oregon, and Washington.
attle, WA 98101.
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§ 21.3 40 CFR Ch. I (7–1–21 Edition)
the State specifying the control meas- source for the information described
ures being required of the applicant herein; as, for example, when the appli-
shall be included. cant has designed and constructed the
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Environmental Protection Agency § 21.5
additions or alterations with in-house methods of operation that are not re-
capability. quired by an applicable standard, or
(9) An estimated schedule for the that are extraneous to the achievement
construction or implementation of the of an applicable standard.
alterations, additions, or methods of (b) The assessment of adequacy will
operation. be conducted to ensure that the pro-
(10) An estimated cost of the alter- posed additions, alterations, or meth-
ations, additions, or methods of oper- ods of operation are sufficient to meet
ation, and where practicable, the indi- one or more applicable standards
vidual costs of major elements of the whether alone or in conjunction with
construction to be undertaken. other plans. The assessment will not
(11) Information on previously re- generally examine whether other alter-
ceived loan assistance under this sec- natives exist or would be more meri-
tion for the facility or method of oper- torious from a cost-effective, effi-
ation, including a description and dates ciency, or technological standpoint.
of the activity funded. (c) An application which proposes ad-
(d) A separate application must be ditions, alterations, or methods of op-
submitted for every addition, alter- eration whose design, in anticipation of
ation, or method of operation that is at a future requirement, will achieve a
a separate geographical location from level of performance above the require-
the initial application. ments imposed by a presently applica-
ble standard shall be reviewed and ap-
Comment: As an example, a chain has four
proved by EPA or a State without prej-
dry cleaning establishments scattered
through a community. A separate applica- udice. The amount of financial assist-
tion would have to be filed for each. ance for such an application will be de-
termined by SBA.
(e) No statement shall be approved (d) The Regional Administrator shall
for any application that has not in- retain one copy of the application and
cluded the information or declaration a summary of the action taken on it.
requirements imposed by paragraph Upon completion of his review, the Re-
(c)(6) of § 21.3. gional Administrator shall return the
(f) All applications are to be sub- original application along with any
mitted in duplicate. other supporting documents or infor-
(g) All applications are subject to the mation provided to the applicant along
provisions of 18 U.S.C. 1001 regarding with a copy to the appropriate SBA
prosecution for the making of false district office for processing.
statements or the concealing of mate-
rial facts. § 21.5 Issuance of statements.
(h) Instructional guidelines to assist (a) Upon application by a small busi-
in the submission of applications for ness concern pursuant to § 21.3 the Re-
EPA certification are available from gional Administrator will, if he finds
EPA or a certifying State. that the additions, alterations, or
[42 FR 8083, Feb. 8, 1977, as amended at 62 FR methods of operation covered by the
1833, Jan. 14, 1997; 75 FR 69349, Nov. 12, 2010; application are adequate and necessary
76 FR 49671, Aug. 11, 2011; 78 FR 37975, June to comply with an applicable standard,
25, 2013; 84 FR 44226, Aug. 23, 2019] issue a written statement to the appli-
cant to that effect, within 45 working
§ 21.4 Review of application. days following receipt of the applica-
(a) The Regional Administrator or tion, or within 45 working days fol-
his designee will conduct a review of lowing receipt of all information re-
the application. This review will con- quired to be submitted pursuant to
sist of a general assessment of the ade- § 21.3(c), whichever is later. Such a
quacy of the proposed alterations, addi- written statement shall be classified as
tions, or methods of operation. The re- a full approval. If an application is de-
view will corroborate that the proposed ficient in any respect, with regard to
alterations, additions, or methods of the specifications for submission listed
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§ 21.6 40 CFR Ch. I (7–1–21 Edition)
of the application, notify the applicant any other Federal or State law or regu-
of such deficiency. lation with respect to the protection of
(b)(1) If an application contains pro- the environment.
posed alterations, additions, or meth- (e) An applicant need not dem-
ods of operation that are adequate and onstrate that its facility or method of
necessary to comply with an applicable operation will meet all applicable re-
standard but also contains proposed al- quirements established under the Act.
terations, additions, or methods of op- The applicant need only demonstrate
eration that are not necessary to com- that the additions, alterations, or
ply with an applicable standard, the methods of operation will assist in en-
Regional Administrator shall condi- suring compliance with one or more of
tionally approve the application within the applicable standards for which fi-
the time limit specified in paragraph nancial assistance is being requested.
(a) of this section, and shall also iden-
tify in the approval those alterations, Comment: As an example, a small business
additions, or methods of operation that has two discharge pipes—one for process
water, the other for cooling water. The appli-
he determines are not necessary. cation for loan assistance is to control pollu-
(2) Conditional approvals as con- tion from the process water discharge. How-
tained in a statement will satisfy the ever, EPA or a State may review the appli-
requirements for approval by EPA for cant’s situation and identify for SBA that
those alterations, additions, or meth- the applicant is subject to other require-
ods of operation determined to be nec- ments for which the applicant has not
essary and adequate. Such conditional sought assistance.
approvals may be submitted to SBA in (f) An application should not include
satisfaction of the requirements of sec- major alternative designs significantly
tion 7(g)(2)(B) of the Small Business differing in scope, concept, or capa-
Act. bility. It is expected that the applicant
(3) Conditional approvals will not at the time of submission will have se-
satisfy the requirements for approval lected the most appropriate or suitable
by EPA for those alterations, addi- design for the addition, alteration, or
tions, or methods of operation included method of operation.
in the application that are determined
(g) EPA will not provide assistance in
not to be necessary. Unnecessary alter-
the form of engineering, design, plan-
ations, additions, or methods of oper-
ning or other technical services to any
ation are those which are extraneous
applicant in the preparation of his ap-
to the achievement of an applicable
plication.
standard.
(4) Conditional approvals may be ap- (h) An applicant may be issued a cer-
pealed to the Deputy Administrator by tification for additions, alterations, or
an applicant in accordance with the methods of operation constructed or
procedures identified in § 21.8. undertaken before loan assistance was
(c) If the Regional Administrator de- applied for by the applicant. Any such
termines that the additions, alter- applications would be reviewed by SBA
ations, or methods of operation covered for eligibility under SBA criteria, in-
by an application are not necessary cluding refinancing and loan exposure.
and adequate to comply with an appli-
§ 21.6 Exclusions.
cable standard, he shall disapprove the
application and shall so advise the ap- (a) Statements shall not be issued for
plicant of such determination within applications in the following areas:
the time limit specified in paragraph (1) Local requirements. Applications
(a) of this section, and shall state in for statements for additions, alter-
writing the reasons for his determina- ations, or methods of operation that
tion. result from requirements imposed by
(d) Any application shall be dis- municipalities, counties or other forms
approved if the Regional Administrator of local or regional authorities and
determines that the proposed addition, governments, except for areawide man-
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Environmental Protection Agency § 21.9
requirements resulting from the appli- (5) Privately owned treatment facility
cation of pretreatment requirements service or user costs. Applications for
under section 307(b) of the Act; or those statements involving financial assist-
resulting from an approved project for ance in meeting user cost or fee sched-
facilities plans, and developed under ules related to participating in a pri-
section 201 of the Act. (See 35 CFR, vately owned treatment facility not
subpart E); or under a delegation of au- under the ownership or control of the
thority under the Act. applicant shall not be approved.
(2) Cost recovery and user charges. Ap- (6) Operation and maintenance charges.
plications for statements involving a Applications for statements containing
request for financial assistance in a request for financial assistance in
meeting revenue and service charges meeting the operations and mainte-
imposed upon a small business by a nance costs of operating the appli-
municipality conforming to regula- cant’s additions, alterations, or meth-
tions governing a user charge or cap- ods of operation shall not be approved
ital cost system under section 204(b)(2) for any elements relating to such areas
of the Act (see 35 CFR 925–11 and 925–12) of cost.
shall not be approved. (7) Evidence of financial responsibility.
(3) New facility sewer construction. Ap- Applications for statements containing
plications for statements involving a request for financial assistance in
projects that involve the construction meeting any requirements relating to
of a lateral, collection, or interceptor evidence of financial responsibility as
sewer, at a facility that was not in ex- provided in section 311(p) of the Act
istence on October 18, 1972, shall not be shall not be approved.
approved. Applications for additions,
alterations, or methods of operation § 21.7 [Reserved]
for new facilities that do not involve COMMENT: Applications for a statement re-
sewer construction are not affected by sulting from a requirement to control pollu-
this preclusion. Further, if an appli- tion from non-point sources as identified in
cant is compelled to move as a result of section 304(e)(2)(A–F) of the Act and de-
a relocation requirement but operated scribed in § 21.2(m) will not presently be
issued a statement under § 21.5 unless the re-
at the facility prior to October 18, 1972,
quirement is established through a permit
the cost of construction for a lateral, under section 402. There is no requirement
collection, or interceptor sewer can be under the current Act that the Federal Gov-
approved for the new, relocated site. ernment control pollution from such sources,
For the purpose of this exclusion lat- and the nature and scope of State or
eral, collection, or interceptor sewer is areawide management agency proposals or
determined as any sewer transporting programs to control such sources cannot be
waste from a facility or site to any determined at this time. As State and
areawide plans for control of nonpoint
publicly owned sewer.
sources being prepared under section 208 of
(4) Other non-water related pollution the Act, will not be completed for several
abatement additions, alterations, or years, this section is being reserved pending
methods of operation which are not in- a future determination on the eligibility of
tegral to meeting the requirements of applications relating to non-profit sources to
the Act, although they may be achiev- receive a statement under this part.
ing the requirements of another Fed-
eral or State law or regulation. § 21.8 Resubmission of application.
Comment: An example would be where
(a) A small business concern whose
stack emission controls were required on application is disapproved may submit
equipment that operated the water pollution an amended or corrected application to
control facility. This emission control equip- the Regional Administrator at any
ment as an integral part of the water pollu- time. The applicant shall provide the
tion control systems would be approvable. date of any previous application.
However, emission control equipment for a (b) [Reserved]
general purpose incinerator that only inci-
dentally burned sewage sludge would not be § 21.9 Appeals.
approvable. The general purpose incinerator
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might also receive loan assistance but under (a) An applicant aggrieved by a deter-
separate procedures than those set out for mination of a Regional Administrator
water pollution control. under § 21.5 may appeal in writing to
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§ 21.10 40 CFR Ch. I (7–1–21 Edition)
the Deputy Administrator of the Envi- bility of the proposed addition, alter-
ronmental Protection Agency, within ation, or method of operation.
30 days of the date of the determina- (d) An agency, Regional Adminis-
tion from which an appeal is taken; trator, or State issuing a statement
Provided, That the Deputy Adminis- under § 21.5 shall retain a complete
trator may, on good cause shown, ac- copy of the application for a period of
cept an appeal at a later time. five years after the date of issuance of
(b) The applicant in requesting such the statement. The application shall be
an appeal shall submit to the Deputy made available upon request for inspec-
Administrator a copy of the complete
tion or use at any time by any agency
application as reviewed by the Re-
of the Federal Government.
gional Administrator.
(c) The applicant should also provide (e) No application for a statement or
information as to why it believes the for financial assistance under this sec-
determination made by the Regional tion or statement issued under this
Administrator to be in error. section shall constitute or be construed
(d) The Deputy Administrator shall as suspending, modifying, revising, ab-
act upon such appeal within 60 days of rogating or otherwise changing the re-
receipt of any complete application for quirements imposed on the applicant
a review of the determination. by the terms, conditions, limitations
(e) Where a State has been delegated or schedules of compliance contained
certification authority, the procedure in an applicable standard, permit, or
for appeals shall be established in the other provision established or author-
State submission required in § 21.12. ized under the Act or any State or
local statute, ordinance or code.
§ 21.10 Utilization of the statement.
(f) No statement as issued and re-
(a) Statements issued by the Re- viewed shall be construed as a waiver
gional Administrator will be mailed to to the applicants fulfilling the require-
the small business applicant and to the ments of any State or local law, stat-
district office of the Small Business ute, ordinance, or code (including
Administration serving the geographic building, health, or zoning codes).
area where the business is located. It is
(g) An amended application need not
the responsibility of the applicant to
be submitted if the facility, property,
also forward the statement to SBA as
or operation for which the statement is
part of the application for a loan.
(b) Any statement or determination issued is sold, leased, rented, or trans-
issued under § 21.5 shall not be altered, ferred by the applicant to another
modified, changed, or destroyed by any party prior to approval by SBA of the
applicant in the course of providing financial assistance: Provided, That
such statement to SBA. To do so can there is or will be no substantive
result in the revocation of any ap- change in the scope, concept, design,
proval contained in the statement and capability, or conduct of the facility or
subject the applicant to the penalties operation.
provided in 18 U.S.C. 1001. Comment: However, eligibility for finan-
(c) If an application for which a cial assistance would be reexamined by SBA
statement is issued under § 21.5 is sub- with regard to any such sale, lease, rental or
stantively changed in scope, concept, transfer.
design, or capability prior to the ap-
proval by SBA of the financial assist- (h) The Regional Administrator may
ance requested, the statement as issued include in any statement a date of ex-
shall be revoked. The applicant must piration, after which date the approval
resubmit a revised application under by the Regional Administrator con-
§ 21.3 and a new review must be con- tained in the statement shall no longer
ducted. Failure to meet the require- apply. The date of expiration shall not
ments of this paragraph could subject become effective if the applicant has
the applicant to the penalties specified submitted the statement to the SBA,
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in 18 U.S.C. 1001 and 18 U.S.C. 286. A prior to the date of expiration, as part
substantive change is one which mate- of the application for financial assist-
rially affects the performance or capa- ance.
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Environmental Protection Agency § 21.12
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§ 21.13 40 CFR Ch. I (7–1–21 Edition)
(e) Any applications shall, if received will be constructed within the time
by an EPA Regional Office, be for- specified by an applicable standard or
warded promptly to the appropriate (b) will be constructed and installed in
State for action pursuant to section accordance with the plans and speci-
7(g)(2) of the Small Business Act and fications submitted in the application,
these regulations. will be operated and maintained prop-
(f)(1) EPA will generally not review erly, or will be applied to process
or approve individual statements wastes which are the same as described
issued by a State. However, SBA, upon in the application. The certification in
receipt and review of a State approved no way constitutes a waiver by EPA or
statement may request the Regional a State of its authority to take appro-
Administrator of EPA to review the priate enforcement action against the
statement. The Regional Adminis- owner or operator of such facilities for
trator, upon such request can further violations of an applicable standard.
approve or disapprove the State issued
statement, in accordance with the re-
quirements of § 21.5. PART 22—CONSOLIDATED RULES
(2) The Regional Administrator will OF PRACTICE GOVERNING THE
periodically review State program per- ADMINISTRATIVE ASSESSMENT OF
formance. In the event of State pro- CIVIL PENALTIES AND THE REV-
gram deficiencies the Regional Admin- OCATION/TERMINATION OR SUS-
istrator will notify the State of such PENSION OF PERMITS
deficiencies.
(3) During that period that any
Subpart A—General
State’s program is classified as defi-
cient, statements issued by a State Sec.
shall also be sent to the Regional Ad- 22.1 Scope of this part.
ministrator for review. The Regional 22.2 Use of number and gender.
Administrator shall notify the State, 22.3 Definitions.
the applicant, and the SBA of any de- 22.4 Powers and duties of the Environ-
termination subsequently made, in ac- mental Appeals Board, Regional Judicial
cordance with § 21.5, on any such state- Officer and Presiding Officer; disquali-
ment. fication, withdrawal, and reassignment.
(i) If within 60 days after notice of 22.5 Filing, service by the parties, and form
such deficiencies has been provided, of all filed documents; business confiden-
tiality claims.
the State has not taken corrective ef-
22.6 Filing and service of rulings, orders and
forts, and if the deficiencies signifi- decisions.
cantly affect the conduct of the pro- 22.7 Computation and extension of time.
gram, the Regional Administrator, 22.8 Ex parte discussion of proceeding.
after sufficient notice has been pro- 22.9 Examination of documents filed.
vided to the Regional Director of SBA,
shall withdraw the approval of the Subpart B—Parties and Appearances
State program.
(ii) Any State whose program is with- 22.10 Appearances.
drawn and whose deficiencies have been 22.11 Intervention and non-party briefs.
corrected may later reapply as pro- 22.12 Consolidation and severance.
vided in § 21.12(a).
(g) Funds appropriated under section Subpart C—Prehearing Procedures
106 of the Act may be utilized by a 22.13 Commencement of a proceeding.
State agency authorized to receive 22.14 Complaint.
such funds in conducting this program. 22.15 Answer to the complaint.
22.16 Motions.
§ 21.13 Effect of certification upon au-
22.17 Default.
thority to enforce applicable stand-
ards. 22.18 Quick resolution; settlement; alter-
native dispute resolution.
The certification by EPA or a State 22.19 Prehearing information exchange; pre-
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for SBA Loan purposes in no way con- hearing conference; other discovery.
stitutes a determination by EPA or the 22.20 Accelerated decision; decision to dis-
State that the facilities certified (a) miss.
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Environmental Protection Agency § 22.1
22.42 Supplemental rules governing the ad- section 105(a) and (f) of the Marine Pro-
ministrative assessment of civil pen- tection, Research, and Sanctuaries Act
alties for violations of compliance orders as amended (33 U.S.C. 1415(a) and (f));
247
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§ 22.2 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 22.4
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§ 22.4 40 CFR Ch. I (7–1–21 Edition)
rules on appeals from the initial deci- Rules of Practice to which subpart I of
sions, rulings and orders of a Presiding this part does not apply. The Regional
Officer in proceedings under these Con- Administrator may also delegate to
solidated Rules of Practice, and ap- one or more Regional Judicial Officers
proves settlement of proceedings under the authority to approve settlement of
these Consolidated Rules of Practice proceedings pursuant to § 22.18(b)(3).
commenced at EPA Headquarters. The These delegations will not prevent a
Environmental Appeals Board may Regional Judicial Officer from refer-
refer any case or motion to the Admin- ring any motion or case to the Re-
istrator when the Environmental Ap- gional Administrator. A Regional Judi-
peals Board, in its discretion, deems it cial Officer shall be an attorney who is
appropriate to do so. When an appeal or a permanent or temporary employee of
motion is referred to the Adminis- the Agency or another Federal agency
trator by the Environmental Appeals and who may perform other duties
Board, all parties shall be so notified
within the Agency. A Regional Judicial
and references to the Environmental
Officer shall not have performed pros-
Appeals Board in these Consolidated
ecutorial or investigative functions in
Rules of Practice shall be interpreted
as referring to the Administrator. If a connection with any case in which he
case or motion is referred to the Ad- serves as a Regional Judicial Officer. A
ministrator by the Environmental Ap- Regional Judicial Officer shall not
peals Board, the Administrator may knowingly preside over a case involv-
consult with any EPA employee con- ing any party concerning whom the Re-
cerning the matter, provided such con- gional Judicial Officer performed any
sultation does not violate § 22.8. Mo- functions of prosecution or investiga-
tions directed to the Administrator tion within the 2 years preceding the
shall not be considered except for mo- commencement of the case. A Regional
tions for disqualification pursuant to Judicial Officer shall not prosecute en-
paragraph (d) of this section, or mo- forcement cases and shall not be super-
tions filed in matters that the Environ- vised by any person who supervises the
mental Appeals Board has referred to prosecution of enforcement cases, but
the Administrator. may be supervised by the Regional
(2) In exercising its duties and re- Counsel.
sponsibilities under these Consolidated (c) Presiding Officer. The Presiding Of-
Rules of Practice, the Environmental ficer shall conduct a fair and impartial
Appeals Board may do all acts and take proceeding, assure that the facts are
all measures as are necessary for the fully elicited, adjudicate all issues, and
efficient, fair and impartial adjudica- avoid delay. The Presiding Officer may:
tion of issues arising in a proceeding, (1) Conduct administrative hearings
including imposing procedural sanc- under these Consolidated Rules of
tions against a party who without ade- Practice;
quate justification fails or refuses to (2) Rule upon motions, requests, and
comply with these Consolidated Rules offers of proof, and issue all necessary
of Practice or with an order of the En- orders;
vironmental Appeals Board. Such sanc- (3) Administer oaths and affirmations
tions may include drawing adverse in-
and take affidavits;
ferences against a party, striking a
(4) Examine witnesses and receive
party’s pleadings or other submissions
from the record, and denying any or all documentary or other evidence;
relief sought by the party in the pro- (5) Order a party, or an officer or
ceeding. agent thereof, to produce testimony,
(b) Regional Judicial Officer. Each Re- documents, or other non-privileged evi-
gional Administrator shall delegate to dence, and failing the production there-
one or more Regional Judicial Officers of without good cause being shown,
authority to act as Presiding Officer in draw adverse inferences against that
proceedings under subpart I of this party;
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Environmental Protection Agency § 22.5
who has none of the infirmities listed (ii), and (iii). The Presiding Officer or
in paragraph (d)(1) of this section shall the Environmental Appeals Board may
be assigned as a replacement. The Ad- by order authorize or require filing by
251
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§ 22.5 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 22.6
signed by the party filing or by its at- serted’’. The specific portion(s) alleged
torney or other representative. The to be confidential shall be clearly iden-
signature constitutes a representation tified within the document.
by the signer that he has read the doc- (ii) A second version of the document
ument, that to the best of his knowl- shall contain all information except
edge, information and belief, the state- the specific information claimed con-
ments made therein are true, and that fidential, which shall be redacted and
it is not interposed for delay. replaced with notes indicating the na-
(4) The first document filed by any ture of the information redacted. The
person shall contain the name, mailing cover page shall state that information
address, telephone number, and email claimed confidential has been deleted
address of an individual authorized to and that a complete copy of the docu-
receive service relating to the pro- ment containing the information
ceeding on behalf of the person. Parties claimed confidential has been filed
shall promptly file any changes in this with the Regional Hearing Clerk.
information with the Headquarters or (3) Both versions of the document
Regional Hearing Clerk or the Clerk of shall be served on the Presiding Officer
the Board, as appropriate, and serve and the complainant. Both versions of
copies on the Presiding Officer and all the document shall be served on any
parties to the proceeding. If a party party, non-party participant, or rep-
fails to furnish such information and resentative thereof, authorized to re-
any changes thereto, service to the ceive the information claimed con-
party’s last known address shall satisfy fidential by the person making the
the requirements of paragraph (b)(2) of claim of confidentiality. Only the re-
this section and § 22.6. dacted version shall be served on per-
(5) The Environmental Appeals Board sons not authorized to receive the con-
or the Presiding Officer may exclude fidential information.
from the record any document which
(4) Only the second, redacted version
does not comply with this section.
shall be treated as public information.
Written notice of such exclusion, stat-
An EPA officer or employee may dis-
ing the reasons therefor, shall be
close information claimed confidential
promptly given to the person submit-
in accordance with paragraph (d)(1) of
ting the document. Such person may
this section only as authorized under 40
amend and resubmit any excluded doc-
CFR part 2.
ument upon motion granted by the En-
vironmental Appeals Board or the Pre- [64 FR 40176, July 23, 1999, as amended at 69
siding Officer, as appropriate. FR 77639, Dec. 28, 2004; 79 FR 65901, Nov. 6,
(d) Confidentiality of business informa- 2014; 82 FR 2234, Jan. 9, 2017]
tion. (1) A person who wishes to assert
a business confidentiality claim with § 22.6 Filing and service of rulings, or-
regard to any information contained in ders and decisions.
any document to be filed in a pro- All rulings, orders, decisions, and
ceeding under these Consolidated Rules other documents issued by the Re-
of Practice shall assert such a claim in gional Administrator or Presiding Offi-
accordance with 40 CFR part 2 at the cer shall be filed with the Headquarters
time that the document is filed. A doc- or Regional Hearing Clerk, as appro-
ument filed without a claim of business priate, in any manner allowed for the
confidentiality shall be available to service of such documents. All rulings,
the public for inspection and copying. orders, decisions, and other documents
(2) Two versions of any document issued by the Environmental Appeals
which contains information claimed Board shall be filed with the Clerk of
confidential shall be filed with the Re- the Board. The Clerk of the Board, the
gional Hearing Clerk: Headquarters Hearing Clerk, or the Re-
(i) One version of the document shall gional Hearing Clerk, as appropriate,
contain the information claimed con- must serve copies of such rulings, or-
fidential. The cover page shall include ders, decisions and other documents on
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the information required under para- all parties. Service may be made by
graph (c)(2) of this section and the U.S. mail (including by certified mail
words ‘‘Business Confidentiality As- or return receipt requested, Overnight
253
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§ 22.7 40 CFR Ch. I (7–1–21 Edition)
Express and Priority Mail), EPA’s in- or other electronic means, including
ternal mail, any reliable commercial but not necessarily limited to email.
delivery service, or electronic means
[64 FR 40176, July 23, 1999, as amended at 82
(including but not necessarily limited FR 2234, Jan. 9, 2017]
to facsimile and email).
[82 FR 2234, Jan. 9, 2017] § 22.8 Ex parte discussion of pro-
ceeding.
§ 22.7 Computation and extension of At no time after the issuance of the
time. complaint shall the Administrator, the
(a) Computation. In computing any members of the Environmental Appeals
period of time prescribed or allowed in Board, the Regional Administrator, the
these Consolidated Rules of Practice, Presiding Officer or any other person
except as otherwise provided, the day who is likely to advise these officials
of the event from which the designated on any decision in the proceeding, dis-
period begins to run shall not be in- cuss ex parte the merits of the pro-
cluded. Saturdays, Sundays, and Fed- ceeding with any interested person out-
eral holidays shall be included. When a side the Agency, with any Agency staff
stated time expires on a Saturday, member who performs a prosecutorial
Sunday or Federal holiday, the stated or investigative function in such pro-
time period shall be extended to in- ceeding or a factually related pro-
clude the next business day. ceeding, or with any representative of
(b) Extensions of time. The Environ- such person. Any ex parte memorandum
mental Appeals Board or the Presiding or other communication addressed to
Officer may grant an extension of time the Administrator, the Regional Ad-
for filing any document: upon timely ministrator, the Environmental Ap-
motion of a party to the proceeding, peals Board, or the Presiding Officer
for good cause shown, and after consid- during the pendency of the proceeding
eration of prejudice to other parties; or and relating to the merits thereof, by
upon its own initiative. Any motion for or on behalf of any party shall be re-
an extension of time shall be filed suf- garded as argument made in the pro-
ficiently in advance of the due date so ceeding and shall be served upon all
as to allow other parties reasonable op- other parties. The other parties shall
portunity to respond and to allow the be given an opportunity to reply to
Presiding Officer or Environmental Ap- such memorandum or communication.
peals Board reasonable opportunity to The requirements of this section shall
issue an order. not apply to any person who has for-
(c) Completion of service. Service of mally recused himself from all adju-
the complaint is complete when the re- dicatory functions in a proceeding, or
turn receipt is signed. Service of all who issues final orders only pursuant
other documents is complete upon to § 22.18(b)(3).
mailing, when placed in the custody of
a reliable commercial delivery service, § 22.9 Examination of documents filed.
or for facsimile or other electronic (a) Subject to the provisions of law
means, including but not necessarily restricting the public disclosure of con-
limited to email, upon transmission. fidential information, any person may,
Where a document is served by U.S. during Agency business hours inspect
mail, EPA internal mail, or commer- and copy any document filed in any
cial delivery service, including over- proceeding. Such documents shall be
night or same-day delivery, 3 days made available by the Regional Hear-
shall be added to the time allowed by ing Clerk, the Hearing Clerk, or the
these Consolidated Rules of Practice Clerk of the Board, as appropriate.
for the filing of a responsive document. (b) The cost of duplicating documents
The time allowed for the serving of a shall be borne by the person seeking
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Environmental Protection Agency § 22.14
the time for filing such brief. Any (1) A statement reciting the sec-
party to the proceeding may file a re- tion(s) of the Act authorizing the
sponse to a non-party brief within 15 issuance of the complaint;
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§ 22.15 40 CFR Ch. I (7–1–21 Edition)
(2) Specific reference to each provi- the filing of an answer, the complain-
sion of the Act, implementing regula- ant may withdraw the complaint, or
tions, permit or order which respond- any part thereof, without prejudice
ent is alleged to have violated; only upon motion granted by the Pre-
(3) A concise statement of the factual siding Officer.
basis for each violation alleged;
(4) A description of all relief sought, § 22.15 Answer to the complaint.
including one or more of the following:
(a) General. Where respondent: Con-
(i) The amount of the civil penalty
tests any material fact upon which the
which is proposed to be assessed, and a
complaint is based; contends that the
brief explanation of the proposed pen-
alty; proposed penalty, compliance or cor-
(ii) Where a specific penalty demand rective action order, or Permit Action,
is not made, the number of violations as the case may be, is inappropriate; or
(where applicable, days of violation) contends that it is entitled to judg-
for which a penalty is sought, a brief ment as a matter of law, it shall file an
explanation of the severity of each vio- original and one copy of a written an-
lation alleged and a recitation of the swer to the complaint with the Re-
statutory penalty authority applicable gional Hearing Clerk and shall serve
for each violation alleged in the com- copies of the answer on all other par-
plaint; ties. Any such answer to the complaint
(iii) A request for a Permit Action must be filed with the Regional Hear-
and a statement of its proposed terms ing Clerk within 30 days after service
and conditions; or of the complaint.
(iv) A request for a compliance or (b) Contents of the answer. The answer
corrective action order and a state- shall clearly and directly admit, deny
ment of the terms and conditions or explain each of the factual allega-
thereof; tions contained in the complaint with
(5) Notice of respondent’s right to re- regard to which respondent has any
quest a hearing on any material fact
knowledge. Where respondent has no
alleged in the complaint, or on the ap-
knowledge of a particular factual alle-
propriateness of any proposed penalty,
gation and so states, the allegation is
compliance or corrective action order,
or Permit Action; deemed denied. The answer shall also
(6) Notice if subpart I of this part ap- state: The circumstances or arguments
plies to the proceeding; which are alleged to constitute the
(7) The address of the Regional Hear- grounds of any defense; the facts which
ing Clerk; and respondent disputes; the basis for op-
(8) Instructions for paying penalties, posing any proposed relief; and whether
if applicable. a hearing is requested.
(b) Rules of practice. A copy of these (c) Request for a hearing. A hearing
Consolidated Rules of Practice shall upon the issues raised by the complaint
accompany each complaint served. and answer may be held if requested by
(c) Amendment of the complaint. The respondent in its answer. If the re-
complainant may amend the complaint spondent does not request a hearing,
once as a matter of right at any time the Presiding Officer may hold a hear-
before the answer is filed. Otherwise ing if issues appropriate for adjudica-
the complainant may amend the com- tion are raised in the answer.
plaint only upon motion granted by the (d) Failure to admit, deny, or explain.
Presiding Officer. Respondent shall Failure of respondent to admit, deny,
have 20 additional days from the date or explain any material factual allega-
of service of the amended complaint to
tion contained in the complaint con-
file its answer.
stitutes an admission of the allegation.
(d) Withdrawal of the complaint. The
complainant may withdraw the com- (e) Amendment of the answer. The re-
plaint, or any part thereof, without spondent may amend the answer to the
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prejudice one time before the answer complaint upon motion granted by the
has been filed. After one withdrawal Presiding Officer.
before the filing of an answer, or after
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Environmental Protection Agency § 22.17
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§ 22.18 40 CFR Ch. I (7–1–21 Edition)
under § 22.27(c). Any default order re- Board, shall issue a final order. Pay-
quiring compliance or corrective ac- ment by respondent shall constitute a
tion shall be effective and enforceable waiver of respondent’s rights to con-
without further proceedings on the test the allegations and to appeal the
date the default order becomes final final order.
under § 22.27(c). Any Permit Action or- (b) Settlement. (1) The Agency encour-
dered in the default order shall become ages settlement of a proceeding at any
effective without further proceedings time if the settlement is consistent
on the date that the default order be- with the provisions and objectives of
comes final under § 22.27(c). the Act and applicable regulations. The
parties may engage in settlement dis-
§ 22.18 Quick resolution; settlement;
alternative dispute resolution. cussions whether or not the respondent
requests a hearing. Settlement discus-
(a) Quick resolution. (1) A respondent sions shall not affect the respondent’s
may resolve the proceeding at any time obligation to file a timely answer
by paying the specific penalty proposed under § 22.15.
in the complaint or in complainant’s
(2) Consent agreement. Any and all
prehearing exchange in full as specified
terms and conditions of a settlement
by complainant and by filing with the
shall be recorded in a written consent
Regional Hearing Clerk a copy of the
agreement signed by all parties or
check or other instrument of payment.
their representatives. The consent
If the complaint contains a specific
agreement shall state that, for the pur-
proposed penalty and respondent pays
pose of the proceeding, respondent: Ad-
that proposed penalty in full within 30
mits the jurisdictional allegations of
days after receiving the complaint,
the complaint; admits the facts stipu-
then no answer need be filed. This
paragraph (a) shall not apply to any lated in the consent agreement or nei-
complaint which seeks a compliance or ther admits nor denies specific factual
corrective action order or Permit Ac- allegations contained in the complaint;
tion. In a proceeding subject to the consents to the assessment of any stat-
public comment provisions of § 22.45, ed civil penalty, to the issuance of any
this quick resolution is not available specified compliance or corrective ac-
until 10 days after the close of the com- tion order, to any conditions specified
ment period. in the consent agreement, and to any
(2) Any respondent who wishes to re- stated Permit Action; and waives any
solve a proceeding by paying the pro- right to contest the allegations and its
posed penalty instead of filing an an- right to appeal the proposed final order
swer, but who needs additional time to accompanying the consent agreement.
pay the penalty, may file a written Where complainant elects to com-
statement with the Regional Hearing mence a proceeding pursuant to
Clerk within 30 days after receiving the § 22.13(b), the consent agreement shall
complaint stating that the respondent also contain the elements described at
agrees to pay the proposed penalty in § 22.14(a)(1)-(3) and (8). The parties shall
accordance with paragraph (a)(1) of forward the executed consent agree-
this section. The written statement ment and a proposed final order to the
need not contain any response to, or Regional Judicial Officer or Regional
admission of, the allegations in the Administrator, or, in a proceeding
complaint. Within 60 days after receiv- commenced at EPA Headquarters, the
ing the complaint, the respondent shall Environmental Appeals Board.
pay the full amount of the proposed (3) Conclusion of proceeding. No settle-
penalty. Failure to make such payment ment or consent agreement shall dis-
within 60 days of receipt of the com- pose of any proceeding under these
plaint may subject the respondent to Consolidated Rules of Practice without
default pursuant to § 22.17. a final order from the Regional Judi-
(3) Upon receipt of payment in full, cial Officer or Regional Administrator,
the Regional Judicial Officer or Re- or, in a proceeding commenced at EPA
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Environmental Protection Agency § 22.19
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§ 22.19 40 CFR Ch. I (7–1–21 Edition)
(4) The exchange of exhibits, docu- (2) Settlement positions and informa-
ments, prepared testimony, and admis- tion regarding their development (such
sions or stipulations of fact which will as penalty calculations for purposes of
avoid unnecessary proof; settlement based upon Agency settle-
(5) The limitation of the number of ment policies) shall not be discover-
expert or other witnesses; able.
(6) The time and place for the hear- (3) The Presiding Officer may order
ing; and depositions upon oral questions only in
(7) Any other matters which may ex- accordance with paragraph (e)(1) of this
pedite the disposition of the pro- section and upon an additional finding
ceeding. that:
(c) Record of the prehearing conference. (i) The information sought cannot
No transcript of a prehearing con- reasonably be obtained by alternative
ference relating to settlement shall be methods of discovery; or
made. With respect to other prehearing (ii) There is a substantial reason to
conferences, no transcript of any pre- believe that relevant and probative evi-
hearing conferences shall be made un- dence may otherwise not be preserved
less ordered by the Presiding Officer. for presentation by a witness at the
The Presiding Officer shall ensure that hearing.
the record of the proceeding includes (4) The Presiding Officer may require
any stipulations, agreements, rulings the attendance of witnesses or the pro-
or orders made during the conference. duction of documentary evidence by
(d) Location of prehearing conference. subpoena, if authorized under the Act.
The prehearing conference shall be The Presiding Officer may issue a sub-
held in the county where the respond- poena for discovery purposes only in
ent resides or conducts the business accordance with paragraph (e)(1) of this
which the hearing concerns, in the city section and upon an additional showing
in which the relevant Environmental of the grounds and necessity therefor.
Protection Agency Regional Office is Subpoenas shall be served in accord-
located, or in Washington, DC, unless ance with § 22.5(b)(1). Witnesses sum-
the Presiding Officer determines that moned before the Presiding Officer
there is good cause to hold it at an- shall be paid the same fees and mileage
other location or by telephone. that are paid witnesses in the courts of
(e) Other discovery. (1) After the infor- the United States. Any fees shall be
mation exchange provided for in para- paid by the party at whose request the
graph (a) of this section, a party may witness appears. Where a witness ap-
move for additional discovery. The mo- pears pursuant to a request initiated
tion shall specify the method of dis- by the Presiding Officer, fees shall be
covery sought, provide the proposed paid by the Agency.
discovery instruments, and describe in (5) Nothing in this paragraph (e) shall
detail the nature of the information limit a party’s right to request admis-
and/or documents sought (and, where sions or stipulations, a respondent’s
relevant, the proposed time and place right to request Agency records under
where discovery would be conducted). the Federal Freedom of Information
The Presiding Officer may order such Act, 5 U.S.C. 552, or EPA’s authority
other discovery only if it: under any applicable law to conduct in-
(i) Will neither unreasonably delay spections, issue information request
the proceeding nor unreasonably bur- letters or administrative subpoenas, or
den the non-moving party; otherwise obtain information.
(ii) Seeks information that is most (f) Supplementing prior exchanges. A
reasonably obtained from the non-mov- party who has made an information ex-
ing party, and which the non-moving change under paragraph (a) of this sec-
party has refused to provide volun- tion, or who has exchanged informa-
tarily; and tion in response to a request for infor-
(iii) Seeks information that has sig- mation or a discovery order pursuant
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260
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Environmental Protection Agency § 22.22
tially uncontroverted, and the issues under § 22.19 (a), (e) or (f) to all parties
and claims upon which the hearing will at least 15 days before the hearing
proceed. date, the Presiding Officer shall not
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§ 22.23 40 CFR Ch. I (7–1–21 Edition)
admit the document, exhibit or testi- testimony and shall be subject to ap-
mony into evidence, unless the non-ex- propriate oral cross-examination.
changing party had good cause for fail- (d) Admission of affidavits where the
ing to exchange the required informa- witness is unavailable. The Presiding Of-
tion and provided the required informa- ficer may admit into evidence affida-
tion to all other parties as soon as it vits of witnesses who are unavailable.
had control of the information, or had The term ‘‘unavailable’’ shall have the
good cause for not doing so. meaning accorded to it by Rule 804(a)
(2) In the presentation, admission, of the Federal Rules of Evidence.
disposition, and use of oral and written (e) Exhibits. Where practicable, an
evidence, EPA officers, employees and original and one copy of each exhibit
authorized representatives shall pre- shall be filed with the Presiding Officer
serve the confidentiality of informa- for the record and a copy shall be fur-
tion claimed confidential, whether or nished to each party. A true copy of
not the claim is made by a party to the any exhibit may be substituted for the
proceeding, unless disclosure is author- original.
ized pursuant to 40 CFR part 2. A busi-
(f) Official notice. Official notice may
ness confidentiality claim shall not
be taken of any matter which can be
prevent information from being intro-
judicially noticed in the Federal courts
duced into evidence, but shall instead
and of other facts within the special-
require that the information be treated
in accordance with 40 CFR part 2, sub- ized knowledge and experience of the
part B. The Presiding Officer or the En- Agency. Opposing parties shall be given
vironmental Appeals Board may con- adequate opportunity to show that
sider such evidence in a proceeding such facts are erroneously noticed.
closed to the public, and which may be
§ 22.23 Objections and offers of proof.
before some, but not all, parties, as
necessary. Such proceeding shall be (a) Objection. Any objection con-
closed only to the extent necessary to cerning the conduct of the hearing may
comply with 40 CFR part 2, subpart B, be stated orally or in writing during
for information claimed confidential. the hearing. The party raising the ob-
Any affected person may move for an jection must supply a short statement
order protecting the information of its grounds. The ruling by the Pre-
claimed confidential. siding Officer on any objection and the
(b) Examination of witnesses. Wit- reasons given for it shall be part of the
nesses shall be examined orally, under record. An exception to each objection
oath or affirmation, except as other- overruled shall be automatic and is not
wise provided in paragraphs (c) and (d) waived by further participation in the
of this section or by the Presiding Offi- hearing.
cer. Parties shall have the right to (b) Offers of proof. Whenever the Pre-
cross-examine a witness who appears at siding Officer denies a motion for ad-
the hearing provided that such cross- mission into evidence, the party offer-
examination is not unduly repetitious. ing the information may make an offer
(c) Written testimony. The Presiding of proof, which shall be included in the
Officer may admit and insert into the record. The offer of proof for excluded
record as evidence, in lieu of oral testi- oral testimony shall consist of a brief
mony, written testimony prepared by a
statement describing the nature of the
witness. The admissibility of any part
information excluded. The offer of
of the testimony shall be subject to the
proof for excluded documents or exhib-
same rules as if the testimony were
its shall consist of the documents or
produced under oral examination. Be-
fore any such testimony is read or ad- exhibits excluded. Where the Environ-
mitted into evidence, the party who mental Appeals Board decides that the
has called the witness shall deliver a ruling of the Presiding Officer in ex-
copy of the testimony to the Presiding cluding the information from evidence
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Officer, the reporter, and opposing was both erroneous and prejudicial, the
counsel. The witness presenting the hearing may be reopened to permit the
testimony shall swear to or affirm the taking of such evidence.
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Environmental Protection Agency § 22.27
§ 22.24 Burden of presentation; burden filing these documents and any reply
of persuasion; preponderance of the briefs, but shall not require them be-
evidence standard. fore the last date for filing motions
(a) The complainant has the burdens under § 22.25 to conform the transcript
of presentation and persuasion that the to the actual testimony. All submis-
violation occurred as set forth in the sions shall be in writing, shall be
complaint and that the relief sought is served upon all parties, and shall con-
appropriate. Following complainant’s tain adequate references to the record
establishment of a prima facie case, re- and authorities relied on.
spondent shall have the burden of pre-
senting any defense to the allegations Subpart E—Initial Decision, Motion
set forth in the complaint and any re-
sponse or evidence with respect to the
To Reopen a Hearing, and
appropriate relief. The respondent has Motion To Set Aside a Default
the burdens of presentation and persua- Order
sion for any affirmative defenses.
(b) Each matter of controversy shall § 22.27 Initial Decision.
be decided by the Presiding Officer (a) Filing and contents. After the pe-
upon a preponderance of the evidence. riod for filing briefs under § 22.26 has
expired, the Presiding Officer shall
§ 22.25 Filing the transcript.
issue an initial decision. The initial de-
The hearing shall be transcribed ver- cision shall contain findings of fact,
batim. Promptly following the taking conclusions regarding all material
of the last evidence, the reporter shall issues of law or discretion, as well as
transmit to the Regional Hearing Clerk reasons therefor, and, if appropriate, a
the original and as many copies of the recommended civil penalty assessment,
transcript of testimony as are called compliance order, corrective action
for in the reporter’s contract with the order, or Permit Action. Upon receipt
Agency, and also shall transmit to the of an initial decision, the Regional
Presiding Officer a copy of the tran- Hearing Clerk shall forward copies of
script. A certificate of service shall ac- the initial decision to the Environ-
company each copy of the transcript. mental Appeals Board and the Assist-
The Regional Hearing Clerk shall no-
ant Administrator for the Office of En-
tify all parties of the availability of
forcement and Compliance Assurance.
the transcript and shall furnish the
parties with a copy of the transcript (b) Amount of civil penalty. If the Pre-
upon payment of the cost of reproduc- siding Officer determines that a viola-
tion, unless a party can show that the tion has occurred and the complaint
cost is unduly burdensome. Any person seeks a civil penalty, the Presiding Of-
not a party to the proceeding may re- ficer shall determine the amount of the
ceive a copy of the transcript upon recommended civil penalty based on
payment of the reproduction fee, ex- the evidence in the record and in ac-
cept for those parts of the transcript cordance with any penalty criteria set
ordered to be kept confidential by the forth in the Act. The Presiding Officer
Presiding Officer. Any party may file a shall consider any civil penalty guide-
motion to conform the transcript to lines issued under the Act. The Pre-
the actual testimony within 30 days siding Officer shall explain in detail in
after receipt of the transcript, or 45 the initial decision how the penalty to
days after the parties are notified of be assessed corresponds to any penalty
the availability of the transcript, criteria set forth in the Act. If the Pre-
whichever is sooner. siding Officer decides to assess a pen-
alty different in amount from the pen-
§ 22.26 Proposed findings, conclusions, alty proposed by complainant, the Pre-
and order. siding Officer shall set forth in the ini-
After the hearing, any party may file tial decision the specific reasons for
proposed findings of fact, conclusions the increase or decrease. If the re-
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of law, and a proposed order, together spondent has defaulted, the Presiding
with briefs in support thereof. The Pre- Officer shall not assess a penalty great-
siding Officer shall set a schedule for er than that proposed by complainant
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§ 22.28 40 CFR Ch. I (7–1–21 Edition)
in the complaint, the prehearing infor- may file with the Headquarters or Re-
mation exchange or the motion for de- gional Hearing Clerk, as appropriate,
fault, whichever is less. and serve on all other parties a re-
(c) Effect of initial decision. The initial sponse. A reopened hearing shall be
decision of the Presiding Officer shall governed by the applicable sections of
become a final order 45 days after its these Consolidated Rules of Practice.
service upon the parties and without The timely filing of a motion to reopen
further proceedings unless: a hearing shall automatically toll the
(1) A party moves to reopen the hear- running of the time periods for an ini-
ing; tial decision becoming final under
(2) A party appeals the initial deci- § 22.27(c), for appeal under § 22.30, and
sion to the Environmental Appeals for the Environmental Appeals Board
Board; to elect to review the initial decision
(3) A party moves to set aside a de- on its own initiative pursuant to
fault order that constitutes an initial § 22.30(b). These time periods begin
decision; or again in full when the Presiding Officer
(4) The Environmental Appeals Board
serves an order denying the motion to
elects to review the initial decision on
reopen the hearing or an amended deci-
its own initiative.
sion. The Presiding Officer may sum-
(d) Exhaustion of administrative rem-
marily deny subsequent motions to re-
edies. Where a respondent fails to ap-
open a hearing filed by the same party
peal an initial decision to the Environ-
mental Appeals Board pursuant to if the Presiding Officer determines that
§ 22.30 and that initial decision becomes the motion was filed to delay the final-
a final order pursuant to paragraph (c) ity of the decision.
of this section, respondent waives its (b) Motion to set aside default order—
rights to judicial review. An initial de- (1) Filing and content. A motion to set
cision that is appealed to the Environ- aside a default order must be filed no
mental Appeals Board shall not be final later than 20 days after service of the
or operative pending the Environ- initial decision and shall state the spe-
mental Appeals Board’s issuance of a cific grounds upon which relief is
final order. sought. The motion shall be made to
the Presiding Officer and filed with the
§ 22.28 Motion to reopen a hearing or Headquarters or Regional Hearing
to set aside a default order. Clerk, as appropriate. A copy of the
(a) Motion to reopen a hearing—(1) Fil- motion shall be filed with the Clerk of
ing and content. A motion to reopen a the Board in the manner prescribed by
hearing to take further evidence must § 22.5(a)(1).
be filed no later than 20 days after (2) Effect of motion to set aside default.
service of the initial decision and shall The timely filing of a motion to set
state the specific grounds upon which aside a default order automatically
relief is sought. Where the movant tolls the running of the time periods
seeks to introduce new evidence, the for an initial decision becoming final
motion shall: State briefly the nature under § 22.27(c), for appeal under
and purpose of the evidence to be ad- § 22.30(a), and for the Environmental
duced; show that such evidence is not Appeals Board to elect to review the
cumulative; and show good cause why initial decision on its own initiative
such evidence was not adduced at the pursuant to § 22.30(b). These time peri-
hearing. The motion shall be made to ods begin again in full when the Pre-
the Presiding Officer and filed with the siding Officer serves an order denying
Headquarters or Regional Hearing the motion to set aside or an amended
Clerk, as appropriate. A copy of the decision. The Presiding Officer may
motion shall be filed with the Clerk of summarily deny subsequent motions to
the Board in the manner prescribed by set aside a default order filed by the
§ 22.5(a)(1). same party if the Presiding Officer de-
(2) Disposition of motion to reopen a termines that the motion was filed to
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Environmental Protection Agency § 22.30
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§ 22.30 40 CFR Ch. I (7–1–21 Edition)
of a response brief responding to argu- filers may comply with a 15-page limit.
ments raised by the appellant, together Headings, footnotes, and quotations
with specific citation or other appro- count toward the word or page-length
priate reference to the record, initial limitation. The Environmental Appeals
decision, and opposing brief (e.g., by in- Board may exclude any motion that
cluding the document name and page does not meet word limitations. Where
number). Appellee shall simulta- a party can demonstrate a compelling
neously serve one copy of the response and documented need to exceed such
brief upon each party, non-party par- limitations, such party must seek ad-
ticipant, and the Regional Hearing vance leave of the Environmental Ap-
Clerk. Response briefs shall be limited peals Board. Such requests are discour-
to the scope of the appeal brief. If any aged and will be granted only in un-
responding party or non-party partici- usual circumstances.
pant includes attachments to its re- (b) Review initiated by the Environ-
sponse brief, the response brief shall mental Appeals Board. Whenever the En-
contain a table that provides the title vironmental Appeals Board determines
of each appended document and assigns to review an initial decision on its own
a label identifying where it may be initiative, it shall issue an order noti-
found in the record. Further briefs may fying the parties and the Presiding Of-
be filed only with leave of the Environ- ficer of its intent to review that deci-
mental Appeals Board. sion. The Clerk of the Board shall serve
(3) Length—(i) Briefs. Unless other- the order upon the Regional Hearing
wise ordered by the Environmental Ap- Clerk, the Presiding Officer, and the
peals Board, appellate and response parties within 45 days after the initial
briefs may not exceed 14,000 words, and decision was served upon the parties.
all other briefs may not exceed 7000 In that order or in a later order, the
words. Filers may rely on the word- Environmental Appeals Board shall
processing system used to determine identify any issues to be briefed by the
the word count. As an alternative to parties and establish a time schedule
this word limitation, filers may com- for filing and service of briefs.
ply with a 30-page limit for appellate (c) Scope of appeal or review. The par-
and response briefs, or a 15-page limit ties’ rights of appeal shall be limited to
for replies. Headings, footnotes, and those issues raised during the course of
quotations count toward the word limi- the proceeding and by the initial deci-
tation. The table of contents, table of sion, and to issues concerning subject
authorities, table of attachments (if matter jurisdiction. If the Environ-
any), statement requesting oral argu- mental Appeals Board determines that
ment (if any), statement of compliance issues raised, but not appealed by the
with the word limitation, and any at- parties, should be argued, it shall give
tachments do not count toward the the parties written notice of such de-
word or page-length limitation. The termination to allow preparation of
Environmental Appeals Board may ex- adequate argument. The Environ-
clude any appeal, response, or other mental Appeals Board may remand the
brief that does not meet word or page- case to the Presiding Officer for further
length limitations. Where a party can proceedings.
demonstrate a compelling and docu- (d) Argument before the Environmental
mented need to exceed such limita- Appeals Board. The Environmental Ap-
tions, such party must seek advance peals Board may, at its discretion in
leave of the Environmental Appeals response to a request or on its own ini-
Board to file a longer brief. Such re- tiative, order oral argument on any or
quests are discouraged and will be all issues in a proceeding. To request
granted only in unusual circumstances. oral argument, a party must include in
(ii) Motions. Unless otherwise ordered its substantive brief a statement ex-
by the Environmental Appeals Board, plaining why oral argument is nec-
motions and any responses or replies essary. The Environmental Appeals
may not exceed 7000 words. Filers may Board may, by order, establish addi-
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Environmental Protection Agency § 22.31
(e) Motions on appeal—(1) General. All a proceeding. The final order shall not
motions made during the course of an in any case affect the right of the
appeal shall conform to § 22.16 unless Agency or the United States to pursue
otherwise provided. In advance of filing appropriate injunctive or other equi-
a motion, parties must attempt to as- table relief or criminal sanctions for
certain whether the other party(ies) any violations of law. The final order
concur(s) or object(s) to the motion shall resolve only those causes of ac-
and must indicate in the motion the tion alleged in the complaint, or for
attempt made and the response ob- proceedings commenced pursuant to
tained. § 22.13(b), alleged in the consent agree-
(2) Disposition of a motion for a proce- ment. The final order does not waive,
dural order. The Environmental Ap- extinguish or otherwise affect respond-
peals Board may act on a motion for a ent’s obligation to comply with all ap-
procedural order at any time without plicable provisions of the Act and regu-
awaiting a response. lations promulgated thereunder.
(3) Timing on motions for extension of (b) Effective date. A final order is ef-
time. Parties must file motions for ex- fective upon filing. Where an initial de-
tensions of time sufficiently in advance cision becomes a final order pursuant
of the due date to allow other parties to § 22.27(c), the final order is effective
to have a reasonable opportunity to re- 45 days after the initial decision is
spond to the request for more time and served on the parties.
to provide the Environmental Appeals (c) Payment of a civil penalty. The re-
Board with a reasonable opportunity to spondent shall pay the full amount of
issue an order. any civil penalty assessed in the final
(f) Decision. The Environmental Ap- order within 30 days after the effective
peals Board shall adopt, modify, or set date of the final order unless otherwise
aside the findings of fact and conclu- ordered. Payment shall be made by
sions of law or discretion contained in sending a cashier’s check or certified
the decision or order being reviewed, check to the payee specified in the
and shall set forth in the final order complaint, unless otherwise instructed
the reasons for its actions. The Envi- by the complainant. The check shall
ronmental Appeals Board may assess a note the case title and docket number.
penalty that is higher or lower than Respondent shall serve copies of the
the amount recommended to be as- check or other instrument of payment
sessed in the decision or order being re- on the Regional Hearing Clerk and on
viewed or from the amount sought in complainant. Collection of interest on
the complaint, except that if the order overdue payments shall be in accord-
being reviewed is a default order, the ance with the Debt Collection Act, 31
Environmental Appeals Board may not U.S.C. 3717.
increase the amount of the penalty (d) Other relief. Any final order re-
above that proposed in the complaint quiring compliance or corrective ac-
or in the motion for default, whichever tion, or a Permit Action, shall become
is less. The Environmental Appeals effective and enforceable without fur-
Board may adopt, modify or set aside ther proceedings on the effective date
any recommended compliance or cor- of the final order unless otherwise or-
rective action order or Permit Action. dered.
The Environmental Appeals Board may (e) Final orders to Federal agencies on
remand the case to the Presiding Offi- appeal. (1) A final order of the Environ-
cer for further action. mental Appeals Board issued pursuant
[64 FR 40176, July 23, 1999, as amended at 68 to § 22.30 to a department, agency, or
FR 2204, Jan. 16, 2003; 69 FR 77639, Dec. 28, instrumentality of the United States
2004; 79 FR 65901, Nov. 6, 2014; 80 FR 13252, shall become effective 30 days after its
Mar. 13, 2015; 82 FR 2235, Jan. 9, 2017] service upon the parties unless the
head of the affected department, agen-
Subpart G—Final Order cy, or instrumentality requests a con-
ference with the Administrator in writ-
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§ 22.32 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 22.41
(b) Corrective action and compliance or- section 109 of the Comprehensive Envi-
ders. A complaint may contain a com- ronmental Response, Compensation,
pliance order issued under section and Liability Act of 1980, as amended
3008(a) or section 9006(a), or a correc- (42 U.S.C. 9609). Where inconsistencies
tive action order issued under section exist between this section and §§ 22.1
3008(h) or section 9003(h)(4) of the through 22.32, this section shall apply.
SWDA. Any such order shall automati- (b) Judicial review. Any person who re-
cally become a final order unless, no quested a hearing with respect to a
later than 30 days after the order is Class II civil penalty under section
served, the respondent requests a hear-
109(b) of CERCLA, 42 U.S.C. 9609(b), and
ing pursuant to § 22.15.
who is the recipient of a final order as-
§ 22.38 Supplemental rules of practice sessing a civil penalty may file a peti-
governing the administrative as- tion for judicial review of such order
sessment of civil penalties under with the United States Court of Ap-
the Clean Water Act. peals for the District of Columbia or
(a) Scope. This section shall apply, in for any other circuit in which such per-
conjunction with §§ 22.1 through 22.32 son resides or transacts business. Any
and § 22.45, in administrative pro- person who requested a hearing with
ceedings for the assessment of any civil respect to a Class I civil penalty under
penalty under section 309(g) or section section 109(a)(4) of CERCLA, 42 U.S.C.
311(b)(6) of the Clean Water Act 9609(a)(4), and who is the recipient of a
(‘‘CWA’’)(33 U.S.C. 1319(g) and final order assessing the civil penalty
1321(b)(6)). Where inconsistencies exist may file a petition for judicial review
between this section and §§ 22.1 through of such order with the appropriate dis-
22.32, this section shall apply. trict court of the United States. All pe-
(b) Consultation with States. For pro- titions must be filed within 30 days of
ceedings pursuant to section 309(g), the the date the order making the assess-
complainant shall provide the State ment was served on the parties.
agency with the most direct authority (c) Payment of civil penalty assessed.
over the matters at issue in the case an Payment of civil penalties assessed in
opportunity to consult with the com- the final order shall be made by for-
plainant. Complainant shall notify the
warding a cashier’s check, payable to
State agency within 30 days following
the ‘‘EPA, Hazardous Substances
proof of service of the complaint on the
Superfund,’’ in the amount assessed,
respondent or, in the case of a pro-
and noting the case title and docket
ceeding proposed to be commenced pur-
number, to the appropriate regional
suant to § 22.13(b), no less than 40 days
before the issuance of an order assess- Superfund Lockbox Depository.
ing a civil penalty. § 22.40 [Reserved]
(c) Administrative procedure and judi-
cial review. Action of the Administrator § 22.41 Supplemental rules governing
for which review could have been ob- the administrative assessment of
tained under section 509(b)(1) of the civil penalties under Title II of the
CWA, 33 U.S.C. 1369(b)(1), shall not be Toxic Substance Control Act, en-
subject to review in an administrative acted as section 2 of the Asbestos
proceeding for the assessment of a civil Hazard Emergency Response Act
penalty under section 309(g) or section (AHERA).
311(b)(6). (a) Scope. This section shall apply, in
conjunction with §§ 22.1 through 22.32,
§ 22.39 Supplemental rules governing
the administrative assessment of in administrative proceedings to assess
civil penalties under section 109 of a civil penalty conducted under section
the Comprehensive Environmental 207 of the Toxic Substances Control
Response, Compensation, and Li- Act (‘‘TSCA’’) (15 U.S.C. 2647). Where
ability Act of 1980, as amended. inconsistencies exist between this sec-
(a) Scope. This section shall apply, in tion and §§ 22.1 through 22.32, this sec-
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§ 22.42 40 CFR Ch. I (7–1–21 Edition)
207 shall be used by the local edu- (c) Public notice of final penalty order.
cational agency for purposes of com- Upon the issuance of a final penalty
plying with Title II of TSCA. Any por- order under this section, the Adminis-
tion of a civil penalty remaining trator shall provide public notice of the
unspent after a local educational agen- order by publication, and by providing
cy achieves compliance shall be depos- notice to any person who requests such
ited into the Asbestos Trust Fund es- notice. The notice shall include:
tablished under section 5 of AHERA. (1) The docket number of the order;
(2) The address and phone number of
§ 22.42 Supplemental rules governing the Regional Hearing Clerk from whom
the administrative assessment of a copy of the order may be obtained;
civil penalties for violations of com- (3) The location of the facility where
pliance orders issued to owners or
operators of public water systems violations were found;
under part B of the Safe Drinking (4) A description of the violations;
Water Act. (5) The penalty that was assessed;
and
(a) Scope. This section shall apply, in
(6) A notice that any interested per-
conjunction with §§ 22.1 through 22.32,
son may, within 30 days of the date the
in administrative proceedings to assess
order becomes final, obtain judicial re-
a civil penalty under section
view of the penalty order pursuant to
1414(g)(3)(B) of the Safe Drinking Water
section 1447(b) of the Safe Drinking
Act, 42 U.S.C. 300g-3(g)(3)(B). Where in-
Water Act, and instruction that per-
consistencies exist between this sec- sons seeking judicial review shall pro-
tion and §§ 22.1 through 22.32, this sec- vide copies of any appeal to the persons
tion shall apply. described in 40 CFR 135.11(a).
(b) Choice of forum. A complaint
which specifies that subpart I of this § 22.44 Supplemental rules of practice
part applies shall also state that re- governing the termination of per-
spondent has a right to elect a hearing mits under section 402(a) of the
on the record in accordance with 5 Clean Water Act or under section
U.S.C. 554, and that respondent waives 3008(a)(3) of the Resource Con-
servation and Recovery Act.
this right unless it requests in its an-
swer a hearing on the record in accord- (a) Scope of this subpart. The supple-
ance with 5 U.S.C. 554. Upon such re- mental rules of practice in this subpart
quest, the Regional Hearing Clerk shall shall also apply in conjunction with
recaption the documents in the record the Consolidated Rules of Practice in
as necessary, and notify the parties of this part and with the administrative
the changes. proceedings for the termination of per-
mits under section 402(a) of the Clean
§ 22.43 Supplemental rules governing Water Act or under section 3008(a)(3) of
the administrative assessment of the Resource Conservation and Recov-
civil penalties against a federal ery Act. Notwithstanding the Consoli-
agency under the Safe Drinking dated Rules of Practice, these supple-
Water Act. mental rules shall govern with respect
(a) Scope. This section shall apply, in to the termination of such permits.
conjunction with §§ 22.1 through 22.32, (b) In any proceeding to terminate a
in administrative proceedings to assess permit for cause under § 122.64 or § 270.43
a civil penalty against a federal agency of this chapter during the term of the
under section 1447(b) of the Safe Drink- permit:
ing Water Act, 42 U.S.C. 300j-6(b). (1) The complaint shall, in addition
Where inconsistencies exist between to the requirements of § 22.14(b), con-
this section and §§ 22.1 through 22.32, tain any additional information speci-
this section shall apply. fied in § 124.8 of this chapter;
(b) Effective date of final penalty order. (2) The Director (as defined in § 124.2
Any penalty order issued pursuant to of this chapter) shall provide public no-
this section and section 1447(b) of the tice of the complaint in accordance
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Safe Drinking Water Act shall become with § 124.10 of this chapter, and allow
effective 30 days after it has been for public comment in accordance with
served on the parties. § 124.11 of this chapter; and
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Environmental Protection Agency § 22.45
(3) The Presiding Officer shall admit (iv) A description of the violation al-
into evidence the contents of the Ad- leged and the relief sought; and
ministrative Record described in § 124.9 (v) A notice that persons shall sub-
of this chapter, and any public com- mit comments to the Regional Hearing
ments received. Clerk, and the deadline for such sub-
missions.
[65 FR 30904, May 15, 2000]
(c) Comment by a person who is not a
§ 22.45 Supplemental rules governing party. The following provisions apply in
public notice and comment in pro- regard to comment by a person not a
ceedings under sections 309(g) and party to a proceeding:
311(b)(6)(B)(ii) of the Clean Water (1) Participation in proceeding. (i) Any
Act and section 1423(c) of the Safe person wishing to participate in the
Drinking Water Act. proceedings must notify the Regional
(a) Scope. This section shall apply, in Hearing Clerk in writing within the
conjunction with §§ 22.1 through 22.32, public notice period under paragraph
in administrative proceedings for the (b)(1) of this section. The person must
assessment of any civil penalty under provide his name, complete mailing ad-
sections 309(g) and 311(b)(6)(B)(ii) of the dress, and state that he wishes to par-
Clean Water Act (33 U.S.C. 1319(g) and ticipate in the proceeding.
1321(b)(6)(B)(ii)), and under section (ii) The Presiding Officer shall pro-
1423(c) of the Safe Drinking Water Act vide notice of any hearing on the mer-
(42 U.S.C. 300h-2(c)). Where inconsist- its to any person who has met the re-
encies exist between this section and quirements of paragraph (c)(1)(i) of this
§§ 22.1 through 22.32, this section shall section at least 20 days prior to the
apply. scheduled hearing.
(b) Public notice—(1) General. Com- (iii) A commenter may present writ-
plainant shall notify the public before ten comments for the record at any
assessing a civil penalty. Such notice time prior to the close of the record.
shall be provided within 30 days fol- (iv) A commenter wishing to present
lowing proof of service of the com- evidence at a hearing on the merits
plaint on the respondent or, in the case shall notify, in writing, the Presiding
of a proceeding proposed to be com- Officer and the parties of its intent at
menced pursuant to § 22.13(b), no less least 10 days prior to the scheduled
than 40 days before the issuance of an hearing. This notice must include a
order assessing a civil penalty. The no- copy of any document to be introduced,
tice period begins upon first publica- a description of the evidence to be pre-
tion of notice. sented, and the identity of any witness
(2) Type and content of public notice. (and qualifications if an expert), and
The complainant shall provide public the subject matter of the testimony.
notice of the complaint (or the pro- (v) In any hearing on the merits, a
posed consent agreement if § 22.13(b) is commenter may present evidence, in-
applicable) by a method reasonably cluding direct testimony subject to
calculated to provide notice, and shall cross examination by the parties.
also provide notice directly to any per- (vi) The Presiding Officer shall have
son who requests such notice. The no- the discretion to establish the extent
tice shall include: of commenter participation in any
(i) The docket number of the pro- other scheduled activity.
ceeding; (2) Limitations. A commenter may not
(ii) The name and address of the com- cross-examine any witness in any hear-
plainant and respondent, and the per- ing and shall not be subject to or par-
son from whom information on the pro- ticipate in any discovery or prehearing
ceeding may be obtained, and the ad- exchange.
dress of the Regional Hearing Clerk to (3) Quick resolution and settlement. No
whom appropriate comments shall be proceeding subject to the public notice
directed; and comment provisions of paragraphs
(iii) The location of the site or facil- (b) and (c) of this section may be re-
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ity from which the violations are al- solved or settled under § 22.18, or com-
leged, and any applicable permit num- menced under § 22.13(b), until 10 days
ber; after the close of the comment period
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§ 22.45 40 CFR Ch. I (7–1–21 Edition)
provided in paragraph (c)(1) of this sec- to the issuance of the proposed final
tion. order;
(4) Petition to set aside a consent agree- (B) Whether complainant adequately
ment and proposed final order. (i) Com- considered and responded to the peti-
plainant shall provide to each com- tion; and
menter, by certified mail, return re- (C) Whether a resolution of the pro-
ceipt requested, but not to the Re- ceeding by the parties is appropriate
gional Hearing Clerk or Presiding Offi- without a hearing.
cer, a copy of any consent agreement
(vi) Upon a finding by the Petition
between the parties and the proposed
Officer that a hearing is appropriate,
final order.
(ii) Within 30 days of receipt of the the Presiding Officer shall order that
consent agreement and proposed final the consent agreement and proposed
order a commenter may petition the final order be set aside and shall estab-
Regional Administrator (or, for cases lish a schedule for a hearing.
commenced at EPA Headquarters, the (vii) Upon a finding by the Petition
Environmental Appeals Board), to set Officer that a resolution of the pro-
aside the consent agreement and pro- ceeding without a hearing is appro-
posed final order on the basis that ma- priate, the Petition Officer shall issue
terial evidence was not considered. an order denying the petition and stat-
Copies of the petition shall be served ing reasons for the denial. The Petition
on the parties, but shall not be sent to Officer shall:
the Regional Hearing Clerk or the Pre- (A) File the order with the Regional
siding Officer. Hearing Clerk;
(iii) Within 15 days of receipt of a pe- (B) Serve copies of the order on the
tition, the complainant may, with no- parties and the commenter; and
tice to the Regional Administrator or (C) Provide public notice of the
Environmental Appeals Board and to
order.
the commenter, withdraw the consent
agreement and proposed final order to (viii) Upon a finding by the Petition
consider the matters raised in the peti- Officer that a resolution of the pro-
tion. If the complainant does not give ceeding without a hearing is appro-
notice of withdrawal within 15 days of priate, the Regional Administrator
receipt of the petition, the Regional may issue the proposed final order,
Administrator or Environmental Ap- which shall become final 30 days after
peals Board shall assign a Petition Of- both the order denying the petition and
ficer to consider and rule on the peti- a properly signed consent agreement
tion. The Petition Officer shall be an- are filed with the Regional Hearing
other Presiding Officer, not otherwise Clerk, unless further petition for re-
involved in the case. Notice of this as- view is filed by a notice of appeal in
signment shall be sent to the parties, the appropriate United States District
and to the Presiding Officer. Court, with coincident notice by cer-
(iv) Within 30 days of assignment of tified mail to the Administrator and
the Petition Officer, the complainant the Attorney General. Written notice
shall present to the Petition Officer a of appeal also shall be filed with the
copy of the complaint and a written re- Regional Hearing Clerk, and sent to
sponse to the petition. A copy of the the Presiding Officer and the parties.
response shall be provided to the par- (ix) If judicial review of the final
ties and to the commenter, but not to order is denied, the final order shall be-
the Regional Hearing Clerk or Pre-
come effective 30 days after such denial
siding Officer.
has been filed with the Regional Hear-
(v) The Petition Officer shall review
the petition, and complainant’s re- ing Clerk.
sponse, and shall file with the Regional
Hearing Clerk, with copies to the par-
ties, the commenter, and the Presiding
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Environmental Protection Agency § 23.1
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§ 23.2 40 CFR Ch. I (7–1–21 Edition)
(c) General Counsel means the General REGISTER document, two weeks after
Counsel of EPA or any official exer- the date when the document is pub-
cising authority delegated by the Gen- lished in the FEDERAL REGISTER, or (b)
eral Counsel. for any other document, two weeks
[50 FR 7270, Feb. 21, 1985, as amended at 53
after it is signed.
FR 29322, Aug. 3, 1988]
§ 23.5 Timing of Administrator’s action
§ 23.2 Timing of Administrator’s action under Toxic Substances Control
under Clean Water Act. Act.
Unless the Administrator otherwise Unless the Administrator otherwise
explicity provides in a particular pro- explicitly provides in promulgating a
particular rule or issuing a particular
mulgation or approval action, the time
order, the time and date of the Admin-
and date of the Administrator’s action
istrator’s promulgation or issuance for
in promulgation (for purposes of sec-
purposes of section 19(a)(1) shall be at
tions 509(b)(1) (A), (C), and (E)), approv-
1:00 p.m. eastern time (standard or day-
ing (for purposes of section
light, as appropriate) on the date that
509(b)(1)(E)), making a determination
is (a) for a FEDERAL REGISTER docu-
(for purposes of section 509(b)(1) (B) and
ment, two weeks after the date when
(D), and issuing or denying (for pur-
the document is published in the FED-
poses of section 509(b)(1)(F)) shall be at
ERAL REGISTER, or (b) for any other
1:00 p.m. eastern time (standard or day- document, two weeks after it is signed.
light, as appropriate) on (a) for a FED-
ERAL REGISTER document, the date § 23.6 Timing of Administrator’s action
that is two weeks after the date when under Federal Insecticide, Fun-
the document is published in the FED- gicide and Rodenticide Act.
ERAL REGISTER, or (b) for any other Unless the Administrator otherwise
document, two weeks after it is signed. explicitly provides in a particular
order, the time and date of entry of an
§ 23.3 Timing of Administrator’s action
under Clean Air Act. order issued by the Administrator fol-
lowing a public hearing for purposes of
Unless the Administrator otherwise section 16(b) shall be at 1:00 p.m. east-
explicitly provides in a particular pro- ern time (standard or daylight, as ap-
mulgation, approval, or action, the propriate) on the date that is two
time and date of such promulgation, weeks after it is signed.
approval or action for purposes of the
second sentence of section 307(b)(1) § 23.7 Timing of Administrator’s action
shall be at 1:00 p.m. eastern time under Safe Drinking Water Act.
(standard or daylight, as appropriate) Unless the Administrator otherwise
on (a) for a FEDERAL REGISTER docu- explicitly provides in a particular pro-
ment, the date when the document is mulgation action or determination, the
published in the FEDERAL REGISTER, or time and date of the Administrator’s
(b) for any other document, two weeks promulgation, issuance, or determina-
after it is signed. tion for purposes of section 1448(a)(2)
shall be at 1:00 p.m. eastern time
§ 23.4 Timing of Administrator’s action (standard or daylight, as appropriate)
under Resource Conservation and on the date that is (a) for a FEDERAL
Recovery Act.
REGISTER document, two weeks after
Unless the Administrator otherwise the date when the document is pub-
explicitly provides in taking a par- lished in the FEDERAL REGISTER or (b)
ticular action, for purposes of section for any other document, two weeks
7006(b), the time and date of the Ad- after it is signed.
ministrator’s action in issuing, deny-
ing, modifying, or revoking any permit § 23.8 Timing of Administrator’s action
under section 3005, or in granting, de- under Uranium Mill Tailings Radi-
nying, or withdrawing authorization or ation Control Act of 1978.
interim authorization under section Unless the Administrator otherwise
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3006, shall be at 1:00 p.m. eastern time explicitly provides in a particular rule,
(standard or daylight, as appropriate) the time and date of the Administra-
on the date that is (a) for a FEDERAL tor’s promulgation for purposes of 42
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Environmental Protection Agency Pt. 24
U.S.C. 2022(c)(2) shall be at 1:00 p.m. Court. The petition should be addressed
eastern time (standard or daylight, as to: Correspondence Control Unit, Office
appropriate) on the date that is two of General Counsel (2311), U.S. Environ-
weeks after the date when notice of mental Protection Agency, 1200 Penn-
promulgation is published in the FED- sylvania Ave., NW., Washington, DC
ERAL REGISTER. 20460.
(b) If the General Counsel receives
§ 23.9 Timing of Administrator’s action two or more petitions filed in two or
under the Atomic Energy Act. more United States Courts of Appeals
Unless the Administrator otherwise for review of any Agency action within
explicitly provides in a particular ten days of the effective date of that
order, the time and date of the entry of action for purposes of judicial review
an order for purposes of 28 U.S.C. 2344 (as specified under §§ 23.2 through 23.10
shall be at 1:00 p.m. eastern time of this part), the General Counsel will
(standard or daylight, as appropriate) notify the United States Judicial Panel
on the date that is two weeks after the of Multidistrict Litigation of any peti-
date when notice thereof is published tions that were received within the ten
in the FEDERAL REGISTER. day period, in accordance with the ap-
plicable rules of the Panel.
§ 23.10 Timing of Administrator’s ac- (c) For purposes of determining
tion under the Federal Food, Drug,
and Cosmetic Act. whether a petition for review has been
received within the ten day period
Unless the Administrator otherwise under paragraph (b) of this section, the
explicitly provides in a particular petition shall be considered received on
order, the time and date of the the date of service, if served person-
issuance of a regulation under section ally. If service is accomplished by mail,
21 U.S.C. 346a(e)(1)(C), or any order the date of receipt shall be considered
under 21 U.S.C. 346a(f)(1)(C) or 21 U.S.C. to be the date noted on the return re-
346a(g)(2)(C), or any regulation that is ceipt card.
the subject of such an order, shall, for
purposes of 28 U.S.C. 2112, be at 1 p.m. [53 FR 29322, Aug. 3, 1988]
eastern time (standard or daylight, as
appropriate) on the date that is for a PART 24—RULES GOVERNING
FEDERAL REGISTER document, 2 weeks ISSUANCE OF AND ADMINISTRA-
after the date when the document is TIVE HEARINGS ON INTERIM STA-
published in the FEDERAL REGISTER, or
for any other document, 2 weeks after
TUS CORRECTIVE ACTION OR-
it is signed. DERS
[70 FR 33359, June 8, 2005] Subpart A—General
§ 23.11 Holidays. Sec.
24.01 Scope of these rules.
If the date determined under §§ 23.2 to 24.02 Issuance of initial orders; definition of
23.10 falls on a Federal holiday, then final orders and orders on consent.
the time and date of the Administra- 24.03 Maintenance of docket and official
tor’s action shall be at 1:00 p.m. east- record.
ern time on the next day that is not a 24.04 Filing and service of orders, decisions,
Federal holiday. and documents.
24.05 Response to the initial order; request
§ 23.12 Filing notice of judicial review. for hearing.
24.06 Designation of Presiding Officer.
(a) For the purposes of 28 U.S.C. 24.07 Informal settlement conference.
2112(a), a copy of any petition filed in 24.08 Selection of appropriate hearing pro-
any United States Court of Appeals cedures.
challenging a final action of the Ad-
ministrator shall be sent by certified Subpart B—Hearings on Orders Requiring
mail, return receipt requested, or by Investigations or Studies
personal delivery to the General Coun- 24.09 Qualifications of Presiding Officer; ex
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sel. The petition copy shall be time- parte discussion of the proceeding.
stamped by the Clerk of the Court 24.10 Scheduling the hearing; pre-hearing
when the original is filed with the submissions by respondent.
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§ 24.01 40 CFR Ch. I (7–1–21 Edition)
24.11 Hearing; oral presentations and writ- (d) Questions arising at any stage of
ten submissions by the parties. the proceeding which are not addressed
24.12 Summary of hearing; Presiding Offi- in these rules shall be resolved at the
cer’s recommendation.
discretion of the Regional Adminis-
Subpart C—Hearings on Orders Requiring trator or Presiding Officer, as appro-
Corrective Measures priate.
[53 FR 12263, Apr. 13, 1988, as amended at 56
24.13 Qualifications of Presiding Officer; ex FR 49380, Sept. 27, 1991]
parte discussion of the proceeding.
24.14 Scheduling the hearing; pre-hearing § 24.02 Issuance of initial orders; defi-
submissions by the parties. nition of final orders and orders on
24.15 Hearing; oral presentations and writ- consent.
ten submissions by the parties.
24.16 Transcript or recording of hearing. (a) An administrative action under
24.17 Presiding Officer’s recommendation. section 3008(h) or 9003(h) of the Act
shall be commenced by issuance of an
Subpart D—Post-Hearing Procedures administrative order. When the order is
24.18 Final decision.
issued unilaterally, the order shall be
24.19 Final order. referred to as an initial administrative
24.20 Final agency action. order and may be referenced as a pro-
ceeding under section 3008(h) or 9003(h)
AUTHORITY: 42 U.S.C. sections 6912, 6928,
of the Act. When the order has become
6991b.
effective, either after issuance of a
SOURCE: 53 FR 12263, Apr. 13, 1988, unless final order following a final decision by
otherwise noted. the Regional Administrator, or after
thirty days from issuance if no hearing
Subpart A—General is requested, the order shall be referred
to as a final administrative order.
§ 24.01 Scope of these rules. Where the order is agreed to by the
(a) These rules establish procedures parties, the order shall be denominated
governing issuance of administrative as a final administrative order on con-
orders for corrective action pursuant sent.
to sections 3008(h) and 9003(h) of the (b) The initial administrative order
Solid Waste Disposal Act, as amended shall be executed by an authorized offi-
by the Resource Conservation and Re- cial of EPA (petitioner), other than the
covery Act (the Act), and conduct of Regional Administrator or the Assist-
administrative hearings on such or- ant Administrator for the Office of
ders, except as specified in paragraphs Land and Emergency Management. For
(b) and (c) of this section. orders issued by EPA Headquarters,
(b) The hearing procedures appearing rather than by a Regional office, all
at 40 CFR part 22 govern administra- references in these procedures to the
tive hearings on any order issued pur- Regional Administrator shall be under-
suant to section 3008(h) of the Act stood to be to the Assistant Adminis-
which: trator for Land and Emergency Man-
(1) Is contained within an adminis- agement or his delegatee.
trative order that includes claims (c) The initial administrative order
under section 3008(a) of the Act; or shall contain:
(2) Includes a suspension or revoca- (1) A reference to the legal authority
tion of authorization to operate under pursuant to which the order is issued,
section 3005(e) of the Act; or (2) A concise statement of the factual
(3) Seeks penalties under section basis upon which the order is issued,
3008(h)(2) of the Act for non-compliance and
with a section 3008(h) order. (3) Notification of respondent’s right
(c) The hearing procedures appearing to request a hearing with respect to
at 40 CFR part 22 govern administra- any issue of material fact or the appro-
tive hearings on any order issued pur- priateness of the proposed corrective
suant to section 9003(h) of the Act that action.
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Environmental Protection Agency § 24.05
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§ 24.06 40 CFR Ch. I (7–1–21 Edition)
order, unless the respondent files with ployed for any requested hearing if the
the Clerk within thirty (30) days after initial order directs the respondent—
service of the order, a response to the (1) To undertake only a RCRA Facil-
initial order and requests a hearing. ity Investigation and/or Corrective
(b) The response to the initial order Measures Study, which may include
and request for a hearing must be in monitoring, surveys, testing, informa-
writing and mailed to, or personally tion gathering, analyses, and/or studies
served on, the Clerk of the Regional of- (including studies designed to develop
fice which issued the order. recommendations for appropriate cor-
(c) The response to the initial order rective measures), or
shall specify each factual or legal de- (2) To undertake such investigations
termination, or relief provision in the and/or studies and interim corrective
initial order the respondent disputes measures, and if such interim correc-
and shall briefly indicate the basis tive measures are neither costly nor
upon which it disputes such determina- technically complex and are necessary
to protect human health and the envi-
tion or provision.
ronment prior to development of a per-
(d) Respondent may include with its manent remedy, or
response to the initial order and re- (3) To undertake investigations/stud-
quest for a hearing a statement indi- ies with respect to a release from an
cating whether it believes the subpart underground storage tank.
B or subpart C hearing procedures (b) The hearing procedures set forth
should be employed for the requested in subpart C of this part shall be em-
hearing and the reason(s) therefore. ployed if the respondent seeks a hear-
ing on an order directing that—
§ 24.06 Designation of Presiding Offi-
cer. (1) Corrective measures or such cor-
rective measures together with inves-
Upon receipt of a request for a hear- tigations/studies be undertaken, or
ing, the Regional Administrator shall (2) Corrective action or such correc-
designate a Presiding Officer to con- tive action together with investiga-
duct the hearing and preside over the tions/studies be undertaken with re-
proceedings. spect to any release from an under-
ground storage tank.
§ 24.07 Informal settlement conference. (c) The procedures contained in sub-
The respondent may request an infor- parts A and D of this part shall be fol-
mal settlement conference at any time lowed regardless of whether the initial
by contacting the appropriate EPA em- order directs the respondent to under-
ployee, as specified in the initial ad- take an investigation pursuant to the
ministrative order. A request for an in- procedures in subpart B of this part, or
formal conference will not affect the requires the respondent to implement
respondent’s obligations to timely re- corrective measures pursuant to the
quest a hearing. Whether or not the re- procedures in subpart C of this part.
spondent requests a hearing, the par- [56 FR 49380, Sept. 27, 1991]
ties may confer informally concerning
any aspect of the order. The respondent Subpart B—Hearings on Orders
and respondent’s representatives shall Requiring Investigations or Studies
generally be allowed the opportunity
at an informal conference to discuss § 24.09 Qualifications of Presiding Offi-
with the appropriate Agency technical cer; ex parte discussion of the pro-
and legal personnel all aspects of the ceeding.
order, and in particular the basis for The Presiding Officer shall be either
the determination that a release has the Regional Judicial Officer (as de-
occurred and the appropriateness of the scribed in 40 CFR 22.04(b)) or another
ordered corrective action. attorney employed by the Agency, who
has had no prior connection with the
§ 24.08 Selection of appropriate hear- case, including the performance of any
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Environmental Protection Agency § 24.11
issuance of the final order shall the Re- tend the date by which the request for
gional Administrator, Presiding Offi- hearing is due under § 24.05(a).
cer, or any person who will advise (d) Location of hearing. The hearing
these officials in the decision on the shall be held in the city in which the
case, discuss ex parte the merits of the relevant EPA Regional Office is lo-
proceeding with any interested person cated, unless the Presiding Officer de-
outside the Agency, with any Agency termines that there is good cause to
staff member who performs a prosecu- hold it in another location.
torial or investigative function in such
proceeding or a factually related pro- § 24.11 Hearing; oral presentations and
ceeding, or with any representative of written submissions by the parties.
such person. If, after issuance of the The Presiding Officer shall conduct
initial order and prior to issuance of the hearing in a fair and impartial
the final order, the Regional Adminis-
way, taking action as needed to avoid
trator, Presiding Officer, or any person
unnecessary delay, exclude redundant
who will advise these officials in the
material and maintain order during the
decision on the case receives from or
proceedings. Representatives of EPA
on behalf of any party in an ex parte
shall introduce the administrative
communication information which is
relevant to the decision on the case record and be prepared to summarize
and to which other parties have not the basis for the order. The respondent
had an opportunity to respond, a sum- shall have a reasonable opportunity to
mary of such information shall be address relevant issues and present its
served on all other parties, who shall views through legal counsel or tech-
have an opportunity to reply to same nical advisors. The Presiding Officer
within ten (10) days of service of the may also allow technical and legal dis-
summary. cussions and interchanges between the
parties, including responses to ques-
§ 24.10 Scheduling the hearing; pre- tions to the extent deemed appropriate.
hearing submissions by respondent. It is not the Agency’s intent to provide
(a) Date and time for hearing. The Pre- EPA or respondent an opportunity to
siding Officer shall establish the date, engage in direct examination or cross-
time, location, and agenda for the re- examination of witnesses. The Pre-
quested public hearing and transmit siding Officer may address questions to
this information to the parties. Subject the respondent’s or EPA’s representa-
to § 24.10(c), the hearing shall be sched- tive(s) during the hearing. Each party
uled and held within thirty (30) days of shall insure that a representative(s) is
the Agency’s receipt of the request for (are) present at the hearing, who is
a public hearing. (are) capable of responding to questions
(b) Pre-hearing submissions by respond- and articulating that party’s position
ent. At any time up to five (5) business on the law and facts at issue. Where re-
days before the hearing respondent spondent can demonstrate that
may, but is not required to, submit for through no fault of its own certain doc-
inclusion in the administrative record uments supportive of its position could
information and argument supporting not have been submitted before hearing
respondent’s positions on the facts, law in accordance with the requirements of
and relief, as each relates to the order § 24.10(b), it may submit such docu-
in question. A copy of any information ments at the hearing. Otherwise no
or argument submitted by respondent new documentary support may be sub-
shall be served such that the Clerk and mitted at hearing. The Presiding Offi-
petitioner receive same at least five (5) cer may upon request grant petitioner
business days before hearing. leave to respond to submissions made
(c) Postponment of hearing. The Pre- by respondent pursuant to this section
siding Officer may grant an extension or § 24.10(b). The Presiding Officer shall
of time for the conduct of the hearing have the discretion to order either
upon written request of either party, party to submit additional information
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for good cause shown, and after consid- (including but not limited to
eration of any prejudice to other par- posthearing briefs on undeveloped fac-
ties. The Presiding Officer may not ex- tual, technical, or legal matters) in
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§ 24.12 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 24.14
EPA to respond to such questions as he cated, unless the Presiding Officer de-
designates. In deciding whether or not termines that there is good cause to
to direct the Agency to respond to hold it in another location.
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§ 24.15 40 CFR Ch. I (7–1–21 Edition)
§ 24.15 Hearing; oral presentations and (b) The transcript or recording of the
written submissions by the parties. hearing and all written submittals filed
(a) The Presiding Officer shall con- with the Clerk by the parties subse-
duct the hearing in a fair and impartial quent to initial issuance of the order
manner, take action to avoid unneces- including post-hearing submissions
sary delay in the disposition of the pro- will become part of the administrative
ceedings, and maintain order. The Pre- record for the proceeding, for consider-
siding Officer shall permit oral state- ation by the Presiding Officer and Re-
ments on behalf of the respondent and gional Administrator.
EPA. The Presiding Officer may ad-
§ 24.17 Presiding Officer’s rec-
dress questions to the respondent’s or ommendation.
the EPA’s representative(s) during the
hearing. Each party shall ensure that a (a) The Presiding Officer will, as soon
representative(s) is (are) present at the as practicable after the conclusion of
hearing, who is (are) capable of re- the hearing, evaluate the entire admin-
sponding to questions and articulating istrative record and, on the basis of the
that party’s position on the law and administrative record, prepare and file
facts at issue. Apart from questions by a recommended decision with the Re-
the Presiding Officer, no direct exam- gional Administrator. The rec-
ination or cross-examination shall be ommended decision must address all
allowed. material issues of fact or law properly
(b) Upon commencement of the hear- raised by respondent, and must rec-
ing, a representative of EPA shall in- ommend that the order be modified,
troduce the order and record sup- withdrawn or issued without modifica-
porting issuance of the order, and sum- tion. The recommended decision must
marize the basis for the order. The re- provide an explanation, with citation
spondent may respond to the adminis- to material contained in the record for
trative record and offer any facts, any decision to modify a term of the
statements, explanations or documents order, to issue the order without
which bear on any issue for which the change or to withdraw the order. The
hearing has been requested. Any such recommended decision shall be based
presentation by respondent may in- on the administrative record. If the
clude new documents only to the ex- Presiding Officer finds that any con-
tent that respondent can demonstrate tested relief provision in the order is
that, through no fault of its own, such not supported by a preponderance of
documents could not have been sub- the evidence in the record, the Pre-
mitted before hearing in accordance siding Officer shall recommend that
with the requirements of § 24.14 (c) and the order be modified and issued on
(e). The Agency may then present mat- terms that are supported by the record,
ters solely in rebuttal to matters pre- or withdrawn.
viously presented by the respondent. (b) At any time within twenty-one
The Presiding Officer may allow the re- (21) days of service of the recommended
spondent to respond to any such rebut- decision on the parties, the parties
tal submitted. The Presiding Officer may file comments on the rec-
may exclude repetitive or irrelevant ommended decision with the Clerk.
matter. The Presiding Officer may The Clerk shall promptly transmit any
upon request grant petitioner leave to such comments received to the Re-
respond to submissions made by re- gional Administrator for his consider-
spondent pursuant to this paragraph or ation in reaching a final decision.
§ 24.14(e).
Subpart D—Post-Hearing
§ 24.16 Transcript or recording of Procedures
hearing.
(a) The hearing shall be either tran- § 24.18 Final decision.
scribed stenographically or tape re- As soon as practicable after receipt
corded. Upon written request, such of the recommended decision, the Re-
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Environmental Protection Agency § 25.1
Regional Administrator modifies the 25.12 Assuring compliance with public par-
recommended decision, he shall insure ticipation requirements.
that the final decision indicates the 25.13 Coordination and non-duplication.
legal and factual basis for the decision 25.14 Termination of reporting require-
as modified. The Regional Administra- ments.
tor’s decision shall be based on the ad- AUTHORITY: Sec. 101(e), Clean Water Act, as
ministrative record. amended (33 U.S.C. 1251(e)); sec. 7004(b), Re-
source Conservation and Recovery Act (42
§ 24.19 Final order. U.S.C. 6974(b)); sec. 1450(a)(1), Safe Drinking
Water Act, as amended (42 U.S.C. 300j–9).
If the Regional Administrator does
not adopt portions of the initial order, SOURCE: 44 FR 10292, Feb. 16, 1979, unless
or finds that modification of the order otherwise noted.
is necessary, the signatory official on
the initial administrative order shall § 25.1 Introduction.
modify the order in accordance with This part sets forth minimum re-
the terms of the final decision and file quirements and suggested program ele-
and serve a copy of the final adminis- ments for public participation in ac-
trative order. If the Regional Adminis- tivities under the Clean Water Act
trator finds the initial order appro- (Pub. L. 95–217), the Resource Con-
priate as originally issued, the final de- servation and Recovery Act (Pub. L.
cision shall declare the initial adminis- 94–580), and the Safe Drinking Water
trative order to be a final order, effec- Act (Pub. L. 93–523). The applicability
tive upon service of the final decision. of the requirements of this part is as
If the Regional Administrator declares follows:
that the initial order must be with- (a) Basic requirements and suggested
drawn, the signatory official on the ini- program elements for public informa-
tial administrative order will file and tion, public notification, and public
serve a withdrawal of the initial ad- consultation are set forth in § 25.4.
ministrative order. This may be done These requirements are intended to
without prejudice. foster public awareness and open proc-
esses of government decisionmaking.
§ 24.20 Final agency action.
They are applicable to all covered ac-
The final decision and the final ad- tivities and programs described in
ministrative order are final agency ac- § 25.2(a).
tions that are effective on filing and (b) Requirements and suggested pro-
service. These actions are not appeal- gram elements which govern the struc-
able to the Administrator. ture of particular public participation
mechanisms (for example, advisory
PART 25—PUBLIC PARTICIPATION groups and responsiveness summaries)
IN PROGRAMS UNDER THE RE- are set forth in §§ 25.5, 25.6, 25.7, and
SOURCE CONSERVATION AND 25.8. This part does not mandate the
RECOVERY ACT, THE SAFE use of these public participation mech-
DRINKING WATER ACT, AND THE anisms. It does, however, set require-
CLEAN WATER ACT ments which those responsible for im-
plementing the mechanisms must fol-
Sec.
low if the mechanisms are required
25.1 Introduction. elsewhere in this chapter.
25.2 Scope. (c) Requirements which apply to Fed-
25.3 Policy and objectives. eral financial assistance programs
25.4 Information, notification, and con- (grants and cooperative agreements)
sultation responsibilities. under the three acts are set forth in
25.5 Public hearings. §§ 25.10 and 25.12(a).
25.6 Public meetings.
(d) Requirements for public involve-
25.7 Advisory groups.
25.8 Responsiveness summaries. ment which apply to specific activities
25.9 Permit enforcement. are set forth in § 25.9 (Permit enforce-
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§ 25.2 40 CFR Ch. I (7–1–21 Edition)
(b) Activities which are not covered activity (for example, upon a signifi-
by this part, except as otherwise pro- cant proposed increase in project scope
vided under (a)(8) or (c) of this section, of a construction grant). Parts 105
284
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Environmental Protection Agency § 25.4
issues at an early stage so that they public with continuing policy, pro-
can be resolved and timely decisions gram, and technical information and
can be made. In the course of this proc- assistance beginning at the earliest
285
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§ 25.4 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 25.5
information and must occur suffi- date of the hearing. However, where
ciently in advance of decision-making EPA determines that there are no sub-
to allow the agency to assimilate pub- stantial documents which must be re-
lic views into agency action. EPA, viewed for effective hearing participa-
State, interstate, and substate agen- tion and that there are no complex or
cies shall provide for early and con- controversial matters to be addressed
tinuing public consultation in any sig- by the hearing, the notice requirement
nificant action covered by this part. may be reduced to no less than 30 days.
Merely conferring with the public after EPA may further reduce or waive the
an agency decision does not meet this hearing notice requirement in emer-
requirement. In addition to holding gency situations where EPA deter-
hearings and meetings as specifically mines that there is an imminent dan-
required in this chapter, a hearing or ger to public health. To the extent not
meeting shall be held if EPA, the duplicative, the agency holding the
State, interstate, or substate agency hearing shall also provide informal no-
determines that there is significant tice to all interested persons or organi-
public interest or that a hearing or zations that request it. The notice
meeting would be useful. shall identify the matters to be dis-
(e) Public information concerning legal cussed at the hearing and shall include
proceedings. EPA, State, interstate, and or be accompanied by a discussion of
substate agencies shall provide full and the agency’s tentative determination
open information on legal proceedings on major issues (if any), information
to the extent not inconsistent with on the availability of a bibliography of
court requirements, and where such relevant materials (if deemed appro-
disclosure would not prejudice the con- priate), and procedures for obtaining
duct of the litigation. EPA actions further information. Reports, docu-
with regard to affording opportunities ments and data relevant to the discus-
for public comment before the Depart- sion at the public hearing shall be
ment of Justice consents to a proposed available to the public at least 30 days
judgment in an action to enjoin dis- before the hearing. Earlier availability
charges of pollutants into the environ- of materials relevant to the hearing
ment shall be consistent with the will further assist public participation
Statement of Policy issued by the De- and is encouraged where possible.
partment of Justice (see title 28, CFR, (c) Locations and time. Hearings must
chapter 1, § 50.7). be held at times and places which, to
the maximum extent feasible, facili-
§ 25.5 Public hearings. tate attendance by the public. Accessi-
(a) Applicability. Any non-adjudica- bility of public transportation, and use
tory public hearing, whether manda- of evening and weekend hearings,
tory or discretionary, under the three should be considered. In the case of ac-
Acts shall meet the following min- tions with Statewide interest, holding
imum requirements. These require- more than one hearing should be con-
ments are subordinate to any more sidered.
stringent requirements found else- (d) Scheduling presentations. The agen-
where in this chapter or otherwise im- cy holding the hearing shall schedule
posed by EPA, State, interstate, or witnesses in advance, when necessary,
substate agencies. Procedures devel- to ensure maximum participation and
oped for adjudicatory hearings required allotment of adequate time for all
by this chapter shall be consistent with speakers. However, the agency shall re-
the public participation objectives of serve some time for unscheduled testi-
this part, to the extent practicable. mony and may consider reserving
(b) Notice. A notice of each hearing blocks of time for major categories of
shall be well publicized, and shall also witnesses.
be mailed to the appropriate portions (e) Conduct of hearing. The agency
of the list of interested and affected holding the hearing shall inform the
parties required by § 25.4(b)(5). Except audience of the issues involved in the
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§ 25.6 40 CFR Ch. I (7–1–21 Edition)
any), and the information which is par- where in this chapter will require an
ticularly solicited from the public. The advisory group to be appointed by the
agency should consider allowing a financially assisted agency. Such advi-
question and answer period. Procedures sory groups will not be the sole mecha-
shall not unduly inhibit free expression nism for public participation, but will
of views (for example, by onerous writ- complement other mechanisms. They
ten statement requirements or quali- are intended to assist elected or ap-
fication of witnesses beyond minimum pointed officials with final decision-
identification). making responsibility by making rec-
(f) Record. The agency holding the ommendations to such officials on im-
hearing shall prepare a transcript, re- portant issues. In addition, advisory
cording or other complete record of groups should foster a constructive
public hearing proceedings and make it interchange among the various inter-
available at no more than cost to any- ests present on the group and enhance
one who requests it. A copy of the the prospect of community acceptance
record shall be available for public re- of agency action.
view. (c) Membership. (1) The agency receiv-
ing financial assistance shall assure
§ 25.6 Public meetings. that the advisory group reflects a bal-
Public meetings are any assemblies ance of interests in the affected area.
or gathering, (such as conferences, in- In order to meet this requirement, the
formational sessions, seminars, work- assisted agency shall take positive ac-
shops, or other activities) which the re- tion, in accordance with paragraph
sponsible agency intends to be open to (c)(3) of this section, to establish an ad-
anyone wishing to attend. Public meet- visory group which consists of substan-
ings are less formal than public hear- tially equivalent proportions of the fol-
ings. They do not require formal pres- lowing four groups:
entations, scheduling of presentations (i) Private citizens. No person may be
and a record of proceedings. The re- included in this portion of the advisory
quirements of § 25.5 (b) and (c) are ap- group who is likely to incur a financial
plicable to public meetings, except gain or loss greater than that of an av-
that the agency holding the meeting erage homeowner, taxpayer or con-
may reduce the notice to not less than sumer as a result of any action likely
30 days if there is good reason that to be taken by the assisted agency.
longer notice cannot be provided. (ii) Representatives of public interest
groups. A ‘‘public interest group’’ is an
§ 25.7 Advisory groups. organization which reflects a general
(a) Applicability. The requirements of civic, social, recreational, environ-
this section on advisory groups shall be mental or public health perspective in
met whenever provisions of this chap- the area and which does not directly
ter require use of an advisory group by reflect the economic interests of its
State, interstate, or substate agencies membership.
involved in activities supported by (iii) Public officials.
EPA financial assistance under any of (iv) Citizens or representatives of or-
the three Acts. ganizations with substantial economic
(b) Role. Primary responsibility for interests in the plan or project.
decision-making in environmental pro- (2) Generally, where the activity has
grams is vested by law in the elected a particular geographic focus, the advi-
and appointed officials who serve on sory group shall be made up of persons
public bodies and agencies at various who are residents of that geographic
levels of government. However, all seg- area.
ments of the public must have the op- (3) In order to meet the advisory
portunity to participate in environ- group membership requirements of
mental quality planning. Accordingly, paragraph (c)(1) of this section, the as-
where EPA identifies a need for contin- sisted agency shall:
ued attention of an informed core (i) Identify public interest groups,
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Environmental Protection Agency § 25.7
(ii) Make active efforts to inform sponsibilities will be met under con-
citizens in the affected area, and the tract, the agency shall require a simi-
persons or groups identified under lar designation, and budget specifica-
paragraph (c)(3)(i) of this section, of tion, of its contractor. In the latter
this opportunity for participation on event, the assisted agency does not
the advisory group. This may include have to designate a separate staff con-
such actions as placing notices or an- tact on its own staff, if the Regional
nouncements in the newspapers or Administrator determines that the
other media, mailing written notices to contractor’s designation will result in
interested parties, contacting organiza- adequate coordination. The staff con-
tions or individuals directly, request- tact shall be located in the project
ing organizations to notify their mem- area.
bers through meetings, newsletters, or (2) The assisted agency has such re-
other means. sponsibilities as providing the advisory
(iii) Where the membership composi- group with information, identifying
tion set forth in paragraph (c)(1) of this issues for the advisory group’s consid-
section is not met after the above ac- eration, consulting with the advisory
tions, the assisted agency shall iden- group throughout the project, request-
tify the causative problems and make ing the advisory group’s recommenda-
additional efforts to overcome such tions prior to major decisions, trans-
problems. For example, the agency mitting advisory group recommenda-
should make personal contact with tions to decision-making officials, and
prospective participants to invite their making written responses to any for-
participation. mal recommendation by the advisory
(iv) Where problems in meeting the group. The agency shall make any such
membership composition arise, the written responses available to the pub-
agency should request advice and as- lic. To the maximum extent feasible,
sistance from EPA. the assisted agency shall involve the
(d) The assisted agency shall record advisory group in the development of
the names and mailing addresses of the public participation program.
each member of the advisory group, (3) The assisted agency shall identify
with the attributes of each in relation professional and clerical staff time
to the membership requirements set which the advisory group may depend
forth in paragraph (c)(1) of this section, upon for assistance, and provide the ad-
provide a copy to EPA, and make the visory group with an operating budget
list available to the public. In the which may be used for technical assist-
event that the membership require- ance and other purposes agreed upon
ments set forth in paragraph (c)(1) of between the advisory group and the
this section are not met, the assisted agency.
agency shall append to the list a de- (4) The assisted agency shall estab-
scription of its efforts to comply with lish a system to make costs of reason-
those requirements and an explanation able out-of-pocket expenses of advisory
of the problems which prevented com- group participation available to group
pliance. EPA shall review the agency’s members. Time away from work need
efforts to comply and approve the advi- not be reimbursed; however, assisted
sory group composition or, if the agen- agencies are encouraged to schedule
cy’s efforts were inadequate, require meetings at times and places which
additional actions to achieve the re- will not require members to leave their
quired membership composition. jobs to attend.
(e) Responsibilities of the assisted agen- (f) Advisory group responsibilities and
cy. (1) The assisted agency shall des- duties. The advisory group may select
ignate a staff contact who will be re- its own chairperson, adopt its own
sponsible for day-to-day coordination rules of order, and schedule and con-
among the advisory group, the agency, duct its own meetings. Advisory group
and any agency contractors or consult- meetings shall be announced well in
ants. The financial assistance agree- advance and shall be open to the pub-
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ment shall include a budget item for lic. At all meetings, the advisory group
this staff contact. Where substantial shall provide opportunity for public
portions of the assisted agency’s re- comment. Any minutes of advisory
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§ 25.8 40 CFR Ch. I (7–1–21 Edition)
agency shall provide additional needed (a) EPA shall invite and consider
information or assistance to the advi- written comments on proposed and in-
sory group. terim regulations from any interested
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Environmental Protection Agency § 25.12
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§ 25.13 40 CFR Ch. I (7–1–21 Edition)
such evaluation at any point in the ance are promptly investigated and
project period, and will do so whenever that corrective action is taken where
it believes that an assisted agency may necessary.
have failed to meet public participa-
tion requirements. § 25.13 Coordination and non-duplica-
(ii) Remedial actions. Whenever EPA tion.
determines that an assisted agency has The public participation activities
not fully met public participation re- and materials that are required under
quirements, EPA shall take actions this part should be coordinated or com-
which it deems appropriate to mitigate bined with those of closely related pro-
the adverse effects of the failure and grams or activities wherever this will
assure that the failure is not repeated. enhance the economy, the effective-
For ongoing projects, that action shall ness, or the timeliness of the effort; en-
include, at a minimum, imposing more hance the clarity of the issue; and not
stringent requirements on the assisted be detrimental to participation by the
agency for the next budget period or widest possible public. Hearings and
other period of the project (including meetings on the same matter may be
such actions as more specific output held jointly by more than one agency
requirements and milestone schedules where this does not conflict with the
for output achievement; interim EPA policy of this paragraph. Special ef-
review of public participation activi- forts shall be made to coordinate pub-
ties and materials prepared by the lic participation procedures under this
agency, and phased release of funds part and applicable regulations else-
based on compliance with milestone where in this chapter with environ-
schedules.) EPA may terminate or sus- mental assessment and analysis proce-
pend part or all financial assistance for dures under 40 CFR part 6. EPA encour-
non-compliance with public participa- ages interstate agencies in particular
tion requirements, and may take any to develop combined proceedings for
further actions that it determines to be the States concerned.
appropriate in accordance with parts 30
and 35 of this chapter (see, in par- § 25.14 Termination of reporting re-
ticular, §§ 30.340, Noncompliance and quirements.
30.615–3, Withholding of Payments, and All reporting requirements specifi-
subpart H of part 30, Modification, Sus- cally established by this part will ter-
pension, and Termination). minate on (5 years from date of publi-
(b) State programs approved in lieu of cation) unless EPA acts to extend the
Federal programs. State compliance requirements beyond that date.
with applicable public participation re-
quirements in programs specified in PART 26—PROTECTION OF HUMAN
§ 25.2(a) (6) and (7) and administered by
approved States shall be monitored by SUBJECTS
EPA during the annual review of the
State’s program, and during any finan- Subpart A—Basic EPA Policy for Protection
cial or program audit or review of of Subjects in Human Research Con-
these programs. EPA may withdraw an ducted or Supported by EPA
approved program from a State for fail- Sec.
ure to comply with applicable public 26.101 To what does this policy apply?
participation requirements. 26.102 Definitions for purposes of this pol-
(c) Other covered programs. Assuring icy.
compliance with these public participa- 26.103 Assuring compliance with this pol-
tion requirements for programs not icy—research conducted or supported by
covered by paragraphs (a) and (b) of any Federal department or agency.
26.104 Exempt research.
this section is the responsibility of the
26.105 [Reserved]
Administrator of EPA. Citizens with 26.106 [Reserved]
information concerning alleged failures 26.107 IRB membership.
to comply with the public participation 26.108 IRB functions and operations.
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Environmental Protection Agency Pt. 26
than minimal risk, and for minor 26.403 IRB duties.
changes in approved research. 26.404 Observational research not involving
26.111 Criteria for IRB approval of research. greater than minimal risk.
26.112 Review by institution. 26.405 Observational research involving
26.113 Suspension or termination of IRB ap- greater than minimal risk but presenting
proval of research. the prospect of direct benefit to the indi-
26.114 Cooperative research. vidual subjects.
26.115 IRB records. 26.406 Requirements for permission by par-
26.116 General requirements for informed ents or guardians and for assent by chil-
consent. dren.
26.117 Documentation of informed consent.
26.118 Applications and proposals lacking Subparts E–J [Reserved]
definite plans for involvement of human
subjects. Subpart K—Basic Ethical Requirements for
26.119 Research undertaken without the in- Third-Party Human Research for Pes-
tention of involving human subjects. ticides Involving Intentional Exposure
26.120 Evaluation and disposition of applica- of Non-Pregnant, Non-Nursing Adults
tions and proposals for research to be
conducted or supported by a Federal de- 26.1101 To what does this subpart apply?
partment or agency. 26.1102 Definitions.
26.121 [Reserved] 26.1103–26.1106 [Reserved]
26.122 Use of Federal funds. 26.1107 IRB membership.
26.123 Early termination of research sup- 26.1108 IRB functions and operations.
port: Evaluation of applications and pro- 26.1109 IRB review of research.
posals. 26.1110 Expedited review procedures for cer-
26.124 Conditions. tain kinds of research involving no more
than minimal risk, and for minor
Subpart B—Prohibition of Research Con- changes in approved research.
ducted or Supported by EPA Involving 26.1111 Criteria for IRB approval of re-
Intentional Exposure of Human Sub- search.
26.1112 Review by institution.
jects who are Children or Pregnant or 26.1113 Suspension or termination of IRB
Nursing Women approval of research.
26.201 To what does this subpart apply? 26.1114 Cooperative research.
26.202 Definitions. 26.1115 IRB records.
26.203 Prohibition of research conducted or 26.1116 General requirements for informed
supported by EPA involving intentional consent.
26.1117 Documentation of informed consent.
exposure of any human subject who is a
26.1118–26.1122 [Reserved]
pregnant woman (and therefore her
26.1123 Early termination of research.
fetus), a nursing woman, or child.
26.1124 [Reserved]
26.1125 Prior submission of proposed human
Subpart C—Observational Research: Addi- research for EPA review.
tional Protections for Pregnant Women
and Fetuses Involved as Subjects in Subpart L—Prohibition of Third-Party Re-
Observational Research Conducted or search Involving Intentional Exposure
Supported by EPA to a Pesticide of Human Subjects Who
26.301 To what does this subpart apply? Are Children or Pregnant or Nursing
26.302 Definitions. Women
26.303 Duties of IRBs in connection with ob- 26.1201 To what does this subpart apply?
servational research involving pregnant 26.1202 Definitions.
women and fetuses. 26.1203 Prohibition of research involving in-
26.304 Additional protections for pregnant tentional exposure of any human subject
women and fetuses involved in observa- who is a pregnant woman (and therefore
tional research. her fetus), a nursing woman, or a child.
26.305 Protections applicable, after delivery,
to the placenta, the dead fetus, or fetal Subpart M—Requirements for Submission
material.
of Information on the Ethical Conduct
Subpart D—Observational Research: Addi- of Completed Human Research
tional Protections for Children Involved 26.1301 To what does this subpart apply?
as Subjects in Observational Research 26.1302 Definitions.
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§ 26.101 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 26.101
additional protections for human sub- with the principles of the Belmont Re-
jects. port.
(g) This policy does not affect any (j) Federal guidance on the require-
foreign laws or regulations that may ments of this policy shall be issued
otherwise be applicable and that pro- only after consultation, for the purpose
vide additional protections to human of harmonization (to the extent appro-
subjects of research. priate), with other Federal depart-
(h) When research covered by this
ments and agencies that have adopted
policy takes place in foreign countries,
this policy, unless such consultation is
procedures normally followed in the
foreign countries to protect human not feasible.
subjects may differ from those set (k) [Reserved]
forth in this policy. In these cir- (l) Compliance dates and transition
cumstances, if a department or agency provisions:
head determines that the procedures (1) For purposes of this section, the
prescribed by the institution afford pre-2018 Requirements means this sub-
protections that are at least equivalent part as published in the 2016 edition of
to those provided in this policy, the de- the Code of Federal Regulations.
partment or agency head may approve (2) For purposes of this section, the
the substitution of the foreign proce- 2018 Requirements means the Federal
dures in lieu of the procedural require- Policy for the Protection of Human
ments provided in this policy. Except Subjects requirements contained in
when otherwise required by statute, this subpart. The compliance date for
Executive Order, or the department or § 26.114(b) (cooperative research) of the
agency head, notices of these actions 2018 Requirements is January 20, 2020.
as they occur will be published in the
(3) Research initially approved by an
FEDERAL REGISTER or will be otherwise
IRB, for which such review was waived
published as provided in department or
agency procedures. pursuant to § 26.101(i), or for which a
(i) Unless otherwise required by law, determination was made that the re-
department or agency heads may waive search was exempt before July 19, 2018,
the applicability of some or all of the shall comply with the pre-2018 Require-
provisions of this policy to specific re- ments, except that an institution en-
search activities or classes of research gaged in such research on or after July
activities otherwise covered by this 19, 2018 may instead comply with the
policy, provided the alternative proce- 2018 Requirements if the institution de-
dures to be followed are consistent termines that such ongoing research
with the principles of the Belmont Re- will comply with the 2018 Require-
port.63 Except when otherwise required ments and an IRB documents such de-
by statute or Executive Order, the de- termination.
partment or agency head shall forward (4) Research initially approved by an
advance notices of these actions to the IRB, for which such review was waived
Office for Human Research Protec- pursuant to § 26.101(i), or for which a
tions, Department of Health and determination was made that the re-
Human Services (HHS), or any suc- search was exempt on or after July 19,
cessor office, or to the equivalent office 2018, shall comply with the 2018 Re-
within the appropriate Federal depart- quirements.
ment or agency, and shall also publish
(m) Severability: Any provision of
them in the FEDERAL REGISTER or in
such other manner as provided in de- this part held to be invalid or unen-
partment or agency procedures. The forceable by its terms, or as applied to
waiver notice must include a state- any person or circumstance, shall be
ment that identifies the conditions construed so as to continue to give
under which the waiver will be applied maximum effect to the provision per-
and a justification as to why the waiv- mitted by law, unless such holding
er is appropriate for the research, in- shall be one of utter invalidity or unen-
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cluding how the decision is consistent forceability, in which event the provi-
sion shall be severable from this part
63 Id. and shall not affect the remainder
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§ 26.102 40 CFR Ch. I (7–1–21 Edition)
thereof or the application of the provi- (2) Intervention includes both physical
sion to other persons not similarly sit- procedures by which information or
uated or to other dissimilar cir- biospecimens are gathered (e.g.,
cumstances. venipuncture) and manipulations of the
[82 FR 7273, Jan. 19, 2017, as amended at 83 subject or the subject’s environment
FR 2893, Jan. 22, 2018] that are performed for research pur-
poses.
§ 26.102 Definitions for purposes of (3) Interaction includes communica-
this policy. tion or interpersonal contact between
(a) Certification means the official no- investigator and subject.
tification by the institution to the sup- (4) Private information includes infor-
porting Federal department or agency mation about behavior that occurs in a
component, in accordance with the re- context in which an individual can rea-
quirements of this policy, that a re- sonably expect that no observation or
search project or activity involving recording is taking place, and informa-
human subjects has been reviewed and tion that has been provided for specific
approved by an IRB in accordance with purposes by an individual and that the
an approved assurance. individual can reasonably expect will
(b) Clinical trial means a research not be made public (e.g., a medical
study in which one or more human sub- record).
jects are prospectively assigned to one (5) Identifiable private information is
or more interventions (which may in- private information for which the iden-
clude placebo or other control) to tity of the subject is or may readily be
evaluate the effects of the interven-
ascertained by the investigator or asso-
tions on biomedical or behavioral
ciated with the information.
health-related outcomes.
(6) An identifiable biospecimen is a bio-
(c) Department or agency head means
the head of any Federal department or specimen for which the identity of the
agency, for example, the Secretary of subject is or may readily be
HHS, and any other officer or employee ascertained by the investigator or asso-
of any Federal department or agency ciated with the biospecimen.
to whom the authority provided by (7) Federal departments or agencies
these regulations to the department or implementing this policy shall:
agency head has been delegated. (i) Upon consultation with appro-
(d) Federal department or agency refers priate experts (including experts in
to a federal department or agency (the data matching and re-identification),
department or agency itself rather reexamine the meaning of ‘‘identifiable
than its bureaus, offices or divisions) private information,’’ as defined in
that takes appropriate administrative paragraph (e)(5) of this section, and
action to make this policy applicable ‘‘identifiable biospecimen,’’ as defined
to the research involving human sub- in paragraph (e)(6) of this section. This
jects it conducts, supports, or other- reexamination shall take place within
wise regulates (e.g., the U.S. Depart- 1 year and regularly thereafter (at
ment of Health and Human Services, least every 4 years). This process will
the U.S. Department of Defense, or the be conducted by collaboration among
Central Intelligence Agency). the Federal departments and agencies
(e)(1) Human subject means a living implementing this policy. If appro-
individual about whom an investigator priate and permitted by law, such Fed-
(whether professional or student) con- eral departments and agencies may
ducting research:
alter the interpretation of these terms,
(i) Obtains information or biospeci- including through the use of guidance.
mens through intervention or inter-
(ii) Upon consultation with appro-
action with the individual, and uses,
studies, or analyzes the information or priate experts, assess whether there are
biospecimens; or (ii) Obtains, uses, analytic technologies or techniques
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Environmental Protection Agency § 26.102
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§ 26.103 40 CFR Ch. I (7–1–21 Edition)
solely for criminal justice or criminal in such form and manner as the depart-
investigative purposes. ment or agency head prescribes.
(4) Authorized operational activities (c) The department or agency head
(as determined by each agency) in sup- may limit the period during which any
port of intelligence, homeland secu- assurance shall remain effective or
rity, defense, or other national secu- otherwise condition or restrict the as-
rity missions. surance.
(m) Written, or in writing, for purposes (d) Certification is required when the
of this part, refers to writing on a tan- research is supported by a Federal de-
gible medium (e.g., paper) or in an elec- partment or agency and not otherwise
tronic format. waived under § 26.101(i) or exempted
under § 26.104. For such research, insti-
§ 26.103 Assuring compliance with this tutions shall certify that each proposed
policy—research conducted or sup- research study covered by the assur-
ported by any Federal department ance and this section has been reviewed
or agency. and approved by the IRB. Such certifi-
(a) Each institution engaged in re- cation must be submitted as prescribed
search that is covered by this policy, by the Federal department or agency
with the exception of research eligible component supporting the research.
for exemption under § 26.104, and that is Under no condition shall research cov-
conducted or supported by a Federal ered by this section be initiated prior
department or agency, shall provide to receipt of the certification that the
written assurance satisfactory to the research has been reviewed and ap-
department or agency head that it will proved by the IRB.
comply with the requirements of this (e) For nonexempt research involving
policy. In lieu of requiring submission human subjects covered by this policy
of an assurance, individual department (or exempt research for which limited
or agency heads shall accept the exist- IRB review takes place pursuant to
ence of a current assurance, appro- § 26.104(d)(2)(iii), (d)(3)(i)(C), or (d)(7) or
priate for the research in question, on (8)) that takes place at an institution
file with the Office for Human Re- in which IRB oversight is conducted by
search Protections, HHS, or any suc- an IRB that is not operated by the in-
cessor office, and approved for Federal- stitution, the institution and the orga-
wide use by that office. When the exist- nization operating the IRB shall docu-
ence of an HHS-approved assurance is ment the institution’s reliance on the
accepted in lieu of requiring submis- IRB for oversight of the research and
sion of an assurance, reports (except the responsibilities that each entity
certification) required by this policy to will undertake to ensure compliance
be made to department and agency with the requirements of this policy
heads shall also be made to the Office (e.g., in a written agreement between
for Human Research Protections, HHS, the institution and the IRB, by imple-
mentation of an institution-wide policy
or any successor office. Federal depart-
directive providing the allocation of re-
ments and agencies will conduct or
sponsibilities between the institution
support research covered by this policy
and an IRB that is not affiliated with
only if the institution has provided an
the institution, or as set forth in a re-
assurance that it will comply with the
search protocol).
requirements of this policy, as provided
in this section, and only if the institu- (Approved by the Office of Management and
tion has certified to the department or Budget under Control Number 0990–0260)
agency head that the research has been
reviewed and approved by an IRB (if § 26.104 Exempt research.
such certification is required by (a) Unless otherwise required by law
§ 26.103(d)). or by department or agency heads, re-
(b) The assurance shall be executed search activities in which the only in-
by an individual authorized to act for volvement of human subjects will be in
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the institution and to assume on behalf one or more of the categories in para-
of the institution the obligations im- graph (d) of this section are exempt
posed by this policy and shall be filed from the requirements of this policy,
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Environmental Protection Agency § 26.104
except that such activities must com- ditory recording) if at least one of the
ply with the requirements of this sec- following criteria is met:
tion and as specified in each category. (i) The information obtained is re-
(b) Use of the exemption categories corded by the investigator in such a
for research subject to the require- manner that the identity of the human
ments of subparts B, C, and D: Applica- subjects cannot readily be ascertained,
tion of the exemption categories to re- directly or through identifiers linked
search subject to the requirements of to the subjects;
45 CFR part 46, subparts B, C, and D, is (ii) Any disclosure of the human sub-
as follows: jects’ responses outside the research
(1) Subpart B. Each of the exemptions would not reasonably place the sub-
at this section may be applied to re- jects at risk of criminal or civil liabil-
search subject to subpart B if the con- ity or be damaging to the subjects’ fi-
ditions of the exemption are met. nancial standing, employability, edu-
(2) Subpart C. The exemptions at this cational advancement, or reputation;
section do not apply to research sub- or
ject to subpart C, except for research (iii) The information obtained is re-
aimed at involving a broader subject corded by the investigator in such a
population that only incidentally in- manner that the identity of the human
cludes prisoners. subjects can readily be ascertained, di-
(3) Subpart D. The exemptions at rectly or through identifiers linked to
paragraphs (d)(1), (4), (5), (6), (7), and (8) the subjects, and an IRB conducts a
of this section may be applied to re- limited IRB review to make the deter-
search subject to subpart D if the con- mination required by § 26.111(a)(7).
ditions of the exemption are met. Para- (3)(i) Research involving benign be-
graphs (d)(2)(i) and (ii) of this section havioral interventions in conjunction
only may apply to research subject to with the collection of information from
subpart D involving educational tests an adult subject through verbal or
or the observation of public behavior written responses (including data
when the investigator(s) do not partici- entry) or audiovisual recording if the
pate in the activities being observed. subject prospectively agrees to the
Paragraph (d)(2)(iii) of this section intervention and information collec-
may not be applied to research subject tion and at least one of the following
to subpart D. criteria is met:
(c) [Reserved] (A) The information obtained is re-
(d) Except as described in paragraph corded by the investigator in such a
(a) of this section, the following cat- manner that the identity of the human
egories of human subjects research are subjects cannot readily be ascertained,
exempt from this policy: directly or through identifiers linked
(1) Research, conducted in estab- to the subjects;
lished or commonly accepted edu- (B) Any disclosure of the human sub-
cational settings, that specifically in- jects’ responses outside the research
volves normal educational practices would not reasonably place the sub-
that are not likely to adversely impact jects at risk of criminal or civil liabil-
students’ opportunity to learn required ity or be damaging to the subjects’ fi-
educational content or the assessment nancial standing, employability, edu-
of educators who provide instruction. cational advancement, or reputation;
This includes most research on regular or
and special education instructional (C) The information obtained is re-
strategies, and research on the effec- corded by the investigator in such a
tiveness of or the comparison among manner that the identity of the human
instructional techniques, curricula, or subjects can readily be ascertained, di-
classroom management methods. rectly or through identifiers linked to
(2) Research that only includes inter- the subjects, and an IRB conducts a
actions involving educational tests limited IRB review to make the deter-
(cognitive, diagnostic, aptitude, mination required by § 26.111(a)(7).
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§ 26.104 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 26.107
(Approved by the Office of Management and special areas to assist in the review of
Budget under Control Number 0990–0260) issues that require expertise beyond or
in addition to that available on the
301
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§ 26.108 40 CFR Ch. I (7–1–21 Edition)
IRB. These individuals may not vote ments or determinations of the IRB;
with the IRB. and
(ii) Any suspension or termination of
§ 26.108 IRB functions and operations. IRB approval.
(a) In order to fulfill the require- (b) Except when an expedited review
ments of this policy each IRB shall: procedure is used (as described in
§ 26.110), an IRB must review proposed
(1) Have access to meeting space and
research at convened meetings at
sufficient staff to support the IRB’s re-
which a majority of the members of the
view and recordkeeping duties;
IRB are present, including at least one
(2) Prepare and maintain a current member whose primary concerns are in
list of the IRB members identified by nonscientific areas. In order for the re-
name; earned degrees; representative search to be approved, it shall receive
capacity; indications of experience the approval of a majority of those
such as board certifications or licenses members present at the meeting.
sufficient to describe each member’s
chief anticipated contributions to IRB (Approved by the Office of Management and
deliberations; and any employment or Budget under Control Number 0990–0260)
other relationship between each mem- § 26.109 IRB review of research.
ber and the institution, for example,
full-time employee, part-time em- (a) An IRB shall review and have au-
ployee, member of governing panel or thority to approve, require modifica-
board, stockholder, paid or unpaid con- tions in (to secure approval), or dis-
sultant; approve all research activities covered
(3) Establish and follow written pro- by this policy, including exempt re-
cedures for: search activities under § 26.104 for
which limited IRB review is a condi-
(i) Conducting its initial and con-
tion of exemption (under
tinuing review of research and for re-
§ 26.104(d)(2)(iii), (d)(3)(i)(C), and (d)(7),
porting its findings and actions to the and (8)).
investigator and the institution; (b) An IRB shall require that infor-
(ii) Determining which projects re- mation given to subjects (or legally au-
quire review more often than annually thorized representatives, when appro-
and which projects need verification priate) as part of informed consent is
from sources other than the investiga- in accordance with § 26.116. The IRB
tors that no material changes have oc- may require that information, in addi-
curred since previous IRB review; and tion to that specifically mentioned in
(iii) Ensuring prompt reporting to § 26.116, be given to the subjects when
the IRB of proposed changes in a re- in the IRB’s judgment the information
search activity, and for ensuring that would meaningfully add to the protec-
investigators will conduct the research tion of the rights and welfare of sub-
activity in accordance with the terms jects.
of the IRB approval until any proposed (c) An IRB shall require documenta-
changes have been reviewed and ap- tion of informed consent or may waive
proved by the IRB, except when nec- documentation in accordance with
essary to eliminate apparent imme- § 26.117.
diate hazards to the subject. (d) An IRB shall notify investigators
(4) Establish and follow written pro- and the institution in writing of its de-
cedures for ensuring prompt reporting cision to approve or disapprove the pro-
to the IRB; appropriate institutional posed research activity, or of modifica-
officials; the department or agency tions required to secure IRB approval
head; and the Office for Human Re- of the research activity. If the IRB de-
search Protections, HHS, or any suc- cides to disapprove a research activity,
cessor office, or the equivalent office it shall include in its written notifica-
within the appropriate Federal depart- tion a statement of the reasons for its
ment or agency of decision and give the investigator an
(i) Any unanticipated problems in- opportunity to respond in person or in
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Environmental Protection Agency § 26.111
the convened IRB at intervals appro- (ii) Minor changes in previously ap-
priate to the degree of risk, not less proved research during the period for
than once per year, except as described which approval is authorized; or
in § 26.109(f). (iii) Research for which limited IRB
(f)(1) Unless an IRB determines oth- review is a condition of exemption
erwise, continuing review of research is under § 26.104(d)(2)(iii), (d)(3)(i)(C), and
not required in the following cir- (d)(7) and (8).
cumstances: (2) Under an expedited review proce-
(i) Research eligible for expedited re- dure, the review may be carried out by
view in accordance with § 26.110; the IRB chairperson or by one or more
(ii) Research reviewed by the IRB in experienced reviewers designated by
accordance with the limited IRB re- the chairperson from among members
view described in § 26.104(d)(2)(iii), of the IRB. In reviewing the research,
(d)(3)(i)(C), or (d)(7) or (8); the reviewers may exercise all of the
(iii) Research that has progressed to authorities of the IRB except that the
the point that it involves only one or reviewers may not disapprove the re-
both of the following, which are part of search. A research activity may be dis-
the IRB-approved study: approved only after review in accord-
(A) Data analysis, including analysis ance with the nonexpedited procedure
of identifiable private information or set forth in § 26.108(b).
identifiable biospecimens, or (c) Each IRB that uses an expedited
(B) Accessing follow-up clinical data review procedure shall adopt a method
from procedures that subjects would for keeping all members advised of re-
undergo as part of clinical care. search proposals that have been ap-
(2) [Reserved] proved under the procedure.
(g) An IRB shall have authority to (d) The department or agency head
observe or have a third party observe may restrict, suspend, terminate, or
the consent process and the research. choose not to authorize an institu-
tion’s or IRB’s use of the expedited re-
(Approved by the Office of Management and
Budget under Control Number 0990–0260) view procedure.
graph (a) of this section, unless the re- not participating in the research). The
viewer determines that the study in- IRB should not consider possible long-
volves more than minimal risk; range effects of applying knowledge
303
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§ 26.112 40 CFR Ch. I (7–1–21 Edition)
gained in the research (e.g., the pos- tion is appropriate, in accordance with
sible effects of the research on public § 26.117; and
policy) as among those research risks (iii) If there is a change made for re-
that fall within the purview of its re- search purposes in the way the identifi-
sponsibility. able private information or identifiable
(3) Selection of subjects is equitable. biospecimens are stored or maintained,
In making this assessment the IRB there are adequate provisions to pro-
should take into account the purposes tect the privacy of subjects and to
of the research and the setting in maintain the confidentiality of data.
which the research will be conducted. (b) When some or all of the subjects
The IRB should be particularly cog- are likely to be vulnerable to coercion
nizant of the special problems of re- or undue influence, such as children,
search that involves a category of sub- prisoners, individuals with impaired
jects who are vulnerable to coercion or decision-making capacity, or economi-
undue influence, such as children, pris- cally or educationally disadvantaged
oners, individuals with impaired deci- persons, additional safeguards have
sion-making capacity, or economically been included in the study to protect
or educationally disadvantaged per- the rights and welfare of these sub-
sons. jects.
(4) Informed consent will be sought
§ 26.112 Review by Institution
from each prospective subject or the
subject’s legally authorized representa- Research covered by this policy that
tive, in accordance with, and to the ex- has been approved by an IRB may be
tent required by, § 26.116. subject to further appropriate review
(5) Informed consent will be appro- and approval or disapproval by officials
priately documented or appropriately of the institution. However, those offi-
waived in accordance with § 26.117. cials may not approve the research if it
(6) When appropriate, the research has not been approved by an IRB.
plan makes adequate provision for
§ 26.113 Suspension or Termination of
monitoring the data collected to en- IRB Approval of Research.
sure the safety of subjects.
(7) When appropriate, there are ade- An IRB shall have authority to sus-
quate provisions to protect the privacy pend or terminate approval of research
of subjects and to maintain the con- that is not being conducted in accord-
fidentiality of data. ance with the IRB’s requirements or
(i) The Secretary of HHS will, after that has been associated with unex-
consultation with the Office of Man- pected serious harm to subjects. Any
agement and Budget’s privacy office suspension or termination of approval
and other Federal departments and shall include a statement of the rea-
agencies that have adopted this policy, sons for the IRB’s action and shall be
issue guidance to assist IRBs in assess- reported promptly to the investigator,
ing what provisions are adequate to appropriate institutional officials, and
protect the privacy of subjects and to the department or agency head.
maintain the confidentiality of data. (Approved by the Office of Management and
(ii) [Reserved] Budget under Control Number 0990–0260)
(8) For purposes of conducting the
limited IRB review required by § 26.114 Cooperative Research.
§ 26.104(d)(7)), the IRB need not make (a) Cooperative research projects are
the determinations at paragraphs (a)(1) those projects covered by this policy
through (7) of this section, and shall that involve more than one institution.
make the following determinations: In the conduct of cooperative research
(i) Broad consent for storage, mainte- projects, each institution is responsible
nance, and secondary research use of for safeguarding the rights and welfare
identifiable private information or of human subjects and for complying
identifiable biospecimens is obtained in with this policy.
accordance with the requirements of (b)(1) Any institution located in the
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Environmental Protection Agency § 26.116
of the research that is conducted in the (5) A list of IRB members in the same
United States. The reviewing IRB will detail as described in § 26.108(a)(2).
be identified by the Federal depart- (6) Written procedures for the IRB in
ment or agency supporting or con- the same detail as described in
ducting the research or proposed by the § 26.108(a)(3) and (4).
lead institution subject to the accept- (7) Statements of significant new
ance of the Federal department or findings provided to subjects, as re-
agency supporting the research. quired by § 26.116(c)(5).
(2) The following research is not sub- (8) The rationale for an expedited re-
ject to this provision: viewer’s determination under
(i) Cooperative research for which § 26.110(b)(1)(i) that research appearing
more than single IRB review is re-
on the expedited review list described
quired by law (including tribal law
in § 26.110(a) is more than minimal risk.
passed by the official governing body of
an American Indian or Alaska Native (9) Documentation specifying the re-
tribe); or sponsibilities that an institution and
(ii) Research for which any Federal an organization operating an IRB each
department or agency supporting or will undertake to ensure compliance
conducting the research determines with the requirements of this policy, as
and documents that the use of a single described in § 26.103(e).
IRB is not appropriate for the par- (b) The records required by this pol-
ticular context. icy shall be retained for at least 3
(c) For research not subject to para- years, and records relating to research
graph (b) of this section, an institution that is conducted shall be retained for
participating in a cooperative project at least 3 years after completion of the
may enter into a joint review arrange- research. The institution or IRB may
ment, rely on the review of another maintain the records in printed form,
IRB, or make similar arrangements for or electronically. All records shall be
avoiding duplication of effort. accessible for inspection and copying
by authorized representatives of the
§ 26.115 IRB Records. Federal department or agency at rea-
(a) An institution, or when appro- sonable times and in a reasonable man-
priate an IRB, shall prepare and main- ner.
tain adequate documentation of IRB
(Approved by the Office of Management and
activities, including the following: Budget under Control Number 0990–0260)
(1) Copies of all research proposals re-
viewed, scientific evaluations, if any, § 26.116 General Requirements for In-
that accompany the proposals, ap- formed Consent.
proved sample consent forms, progress
reports submitted by investigators, and (a) General. General requirements for
reports of injuries to subjects. informed consent, whether written or
(2) Minutes of IRB meetings, which oral, are set forth in this paragraph
shall be in sufficient detail to show at- and apply to consent obtained in ac-
tendance at the meetings; actions cordance with the requirements set
taken by the IRB; the vote on these ac- forth in paragraphs (b) through (d) of
tions including the number of members this section. Broad consent may be ob-
voting for, against, and abstaining; the tained in lieu of informed consent ob-
basis for requiring changes in or dis- tained in accordance with paragraphs
approving research; and a written sum- (b) and (c) of this section only with re-
mary of the discussion of controverted spect to the storage, maintenance, and
issues and their resolution. secondary research uses of identifiable
(3) Records of continuing review ac- private information and identifiable
tivities, including the rationale for biospecimens. Waiver or alteration of
conducting continuing review of re- consent in research involving public
search that otherwise would not re- benefit and service programs conducted
quire continuing review as described in by or subject to the approval of state
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§ 26.116 40 CFR Ch. I (7–1–21 Edition)
described in paragraph (f) of this sec- waive or appear to waive any of the
tion. Except as provided elsewhere in subject’s legal rights, or releases or ap-
this policy: pears to release the investigator, the
(1) Before involving a human subject sponsor, the institution, or its agents
in research covered by this policy, an from liability for negligence.
investigator shall obtain the legally ef- (b) Basic elements of informed consent.
fective informed consent of the subject Except as provided in paragraph (d),
or the subject’s legally authorized rep- (e), or (f) of this section, in seeking in-
resentative. formed consent the following informa-
(2) An investigator shall seek in- tion shall be provided to each subject
formed consent only under cir- or the legally authorized representa-
cumstances that provide the prospec- tive:
tive subject or the legally authorized (1) A statement that the study in-
representative sufficient opportunity volves research, an explanation of the
to discuss and consider whether or not purposes of the research and the ex-
to participate and that minimize the pected duration of the subject’s partici-
possibility of coercion or undue influ- pation, a description of the procedures
ence. to be followed, and identification of
(3) The information that is given to any procedures that are experimental;
the subject or the legally authorized (2) A description of any reasonably
representative shall be in language un- foreseeable risks or discomforts to the
derstandable to the subject or the le- subject;
gally authorized representative. (3) A description of any benefits to
(4) The prospective subject or the le- the subject or to others that may rea-
gally authorized representative must sonably be expected from the research;
be provided with the information that (4) A disclosure of appropriate alter-
a reasonable person would want to native procedures or courses of treat-
have in order to make an informed de- ment, if any, that might be advan-
cision about whether to participate, tageous to the subject;
and an opportunity to discuss that in- (5) A statement describing the ex-
formation. tent, if any, to which confidentiality of
(5) Except for broad consent obtained records identifying the subject will be
in accordance with paragraph (d) of maintained;
this section: (6) For research involving more than
(i) Informed consent must begin with minimal risk, an explanation as to
a concise and focused presentation of whether any compensation and an ex-
the key information that is most likely planation as to whether any medical
to assist a prospective subject or le- treatments are available if injury oc-
gally authorized representative in un- curs and, if so, what they consist of, or
derstanding the reasons why one might where further information may be ob-
or might not want to participate in the tained;
research. This part of the informed (7) An explanation of whom to con-
consent must be organized and pre- tact for answers to pertinent questions
sented in a way that facilitates com- about the research and research sub-
prehension. jects’ rights, and whom to contact in
(ii) Informed consent as a whole must the event of a research-related injury
present information in sufficient detail to the subject;
relating to the research, and must be (8) A statement that participation is
organized and presented in a way that voluntary, refusal to participate will
does not merely provide lists of iso- involve no penalty or loss of benefits to
lated facts, but rather facilitates the which the subject is otherwise entitled,
prospective subject’s or legally author- and the subject may discontinue par-
ized representative’s understanding of ticipation at any time without penalty
the reasons why one might or might or loss of benefits to which the subject
not want to participate. is otherwise entitled; and
(6) No informed consent may include (9) One of the following statements
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any exculpatory language through about any research that involves the
which the subject or the legally au- collection of identifiable private infor-
thorized representative is made to mation or identifiable biospecimens:
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Environmental Protection Agency § 26.116
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§ 26.116 40 CFR Ch. I (7–1–21 Edition)
for research purposes (which period of sent procedure is used, an IRB may not
time could be indefinite); omit or alter any of the elements re-
(5) Unless the subject or legally au- quired under paragraph (d) of this sec-
thorized representative will be pro- tion.
vided details about specific research (3) Requirements for waiver and alter-
studies, a statement that they will not ation. In order for an IRB to waive or
be informed of the details of any spe- alter consent as described in this sub-
cific research studies that might be section, the IRB must find and docu-
conducted using the subject’s identifi- ment that:
able private information or identifiable (i) The research or demonstration
biospecimens, including the purposes of project is to be conducted by or subject
the research, and that they might have to the approval of state or local gov-
chosen not to consent to some of those ernment officials and is designed to
specific research studies; study, evaluate, or otherwise examine:
(6) Unless it is known that clinically (A) Public benefit or service pro-
relevant research results, including in- grams;
dividual research results, will be dis- (B) Procedures for obtaining benefits
closed to the subject in all cir- or services under those programs;
cumstances, a statement that such re- (C) Possible changes in or alter-
sults may not be disclosed to the sub- natives to those programs or proce-
ject; and dures; or
(7) An explanation of whom to con- (D) Possible changes in methods or
tact for answers to questions about the levels of payment for benefits or serv-
subject’s rights and about storage and ices under those programs; and
use of the subject’s identifiable private (ii) The research could not prac-
information or identifiable biospeci- ticably be carried out without the
mens, and whom to contact in the waiver or alteration.
event of a research-related harm. (f) General waiver or alteration of con-
(e) Waiver or alteration of consent in sent—(1) Waiver. An IRB may waive the
research involving public benefit and serv- requirement to obtain informed con-
ice programs conducted by or subject to sent for research under paragraphs (a)
the approval of state or local officials—(1) through (c) of this section, provided
Waiver. An IRB may waive the require- the IRB satisfies the requirements of
ment to obtain informed consent for paragraph (f)(3) of this section. If an in-
research under paragraphs (a) through dividual was asked to provide broad
(c) of this section, provided the IRB consent for the storage, maintenance,
satisfies the requirements of paragraph and secondary research use of identifi-
(e)(3) of this section. If an individual able private information or identifiable
was asked to provide broad consent for biospecimens in accordance with the
the storage, maintenance, and sec- requirements at paragraph (d) of this
ondary research use of identifiable pri- section, and refused to consent, an IRB
vate information or identifiable bio- cannot waive consent for the storage,
specimens in accordance with the re- maintenance, or secondary research
quirements at paragraph (d) of this sec- use of the identifiable private informa-
tion, and refused to consent, an IRB tion or identifiable biospecimens.
cannot waive consent for the storage, (2) Alteration. An IRB may approve a
maintenance, or secondary research consent procedure that omits some, or
use of the identifiable private informa- alters some or all, of the elements of
tion or identifiable biospecimens. informed consent set forth in para-
(2) Alteration. An IRB may approve a graphs (b) and (c) of this section pro-
consent procedure that omits some, or vided the IRB satisfies the require-
alters some or all, of the elements of ments of paragraph (f)(3) of this sec-
informed consent set forth in para- tion. An IRB may not omit or alter any
graphs (b) and (c) of this section pro- of the requirements described in para-
vided the IRB satisfies the require- graph (a) of this section. If a broad con-
ments of paragraph (e)(3) of this sec- sent procedure is used, an IRB may not
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tion. An IRB may not omit or alter any omit or alter any of the elements re-
of the requirements described in para- quired under paragraph (d) of this sec-
graph (a) of this section. If a broad con- tion.
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Environmental Protection Agency § 26.117
(3) Requirements for waiver and alter- available on a Federal Web site (e.g.
ation. In order for an IRB to waive or confidential commercial information),
alter consent as described in this sub- such Federal department or agency
section, the IRB must find and docu- may permit or require redactions to
ment that: the information posted.
(i) The research involves no more (3) The informed consent form must
than minimal risk to the subjects; be posted on the Federal Web site after
(ii) The research could not prac- the clinical trial is closed to recruit-
ticably be carried out without the re- ment, and no later than 60 days after
quested waiver or alteration; the last study visit by any subject, as
(iii) If the research involves using required by the protocol.
identifiable private information or (i) Preemption. The informed consent
identifiable biospecimens, the research requirements in this policy are not in-
could not practicably be carried out tended to preempt any applicable Fed-
without using such information or bio- eral, state, or local laws (including
specimens in an identifiable format; tribal laws passed by the official gov-
(iv) The waiver or alteration will not erning body of an American Indian or
adversely affect the rights and welfare Alaska Native tribe) that require addi-
of the subjects; and tional information to be disclosed in
(v) Whenever appropriate, the sub- order for informed consent to be le-
jects or legally authorized representa- gally effective.
tives will be provided with additional (j) Emergency medical care. Nothing in
pertinent information after participa- this policy is intended to limit the au-
tion. thority of a physician to provide emer-
(g) Screening, recruiting, or determining gency medical care, to the extent the
eligibility. An IRB may approve a re- physician is permitted to do so under
search proposal in which an investi- applicable Federal, state, or local law
gator will obtain information or bio- (including tribal law passed by the offi-
specimens for the purpose of screening, cial governing body of an American In-
recruiting, or determining the eligi- dian or Alaska Native tribe).
bility of prospective subjects without (Approved by the Office of Management and
the informed consent of the prospective Budget under Control Number 0990–0260)
subject or the subject’s legally author-
ized representative, if either of the fol- § 26.117 Documentation of informed
lowing conditions are met: consent.
(1) The investigator will obtain infor- (a) Except as provided in paragraph
mation through oral or written com- (c) of this section, informed consent
munication with the prospective sub- shall be documented by the use of a
ject or legally authorized representa- written informed consent form ap-
tive, or proved by the IRB and signed (includ-
(2) The investigator will obtain iden- ing in an electronic format) by the sub-
tifiable private information or identifi- ject or the subject’s legally authorized
able biospecimens by accessing records representative. A written copy shall be
or stored identifiable biospecimens. given to the person signing the in-
(h) Posting of clinical trial consent formed consent form.
form. (1) For each clinical trial con- (b) Except as provided in paragraph
ducted or supported by a Federal de- (c) of this section, the informed con-
partment or agency, one IRB-approved sent form may be either of the fol-
informed consent form used to enroll lowing:
subjects must be posted by the awardee (1) A written informed consent form
or the Federal department or agency that meets the requirements of § 26.116.
component conducting the trial on a The investigator shall give either the
publicly available Federal Web site subject or the subject’s legally author-
that will be established as a repository ized representative adequate oppor-
for such informed consent forms. tunity to read the informed consent
(2) If the Federal department or agen- form before it is signed; alternatively,
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cy supporting or conducting the clin- this form may be read to the subject or
ical trial determines that certain infor- the subject’s legally authorized rep-
mation should not be made publicly resentative.
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§ 26.118 40 CFR Ch. I (7–1–21 Edition)
(2) In cases in which the documenta- the proposed change by the Federal de-
tion requirement is waived, the IRB partment or agency component.
may require the investigator to provide
310
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Environmental Protection Agency § 26.202
311
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§ 26.203 40 CFR Ch. I (7–1–21 Edition)
the other subparts of this part. ior does not apply to research covered
[71 FR 6168, Feb. 6, 2006, as amended at 84 FR by this subpart, except for research in-
35318, July 23, 2019] volving observation of public behavior
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Environmental Protection Agency § 26.406
when the investigator(s) do not partici- made for soliciting the assent of the
pate in the activities being observed. children and the permission of their
(c) The exceptions, additions, and parents or guardians, as set forth in
provisions for waiver as they appear in § 26.406.
§ 26.101(c) through (i) are applicable to
this subpart. § 26.405 Observational research involv-
ing greater than minimal risk but
[71 FR 6168, Feb. 6, 2006, as amended at 84 FR presenting the prospect of direct
35318, July 23, 2019] benefit to the individual subjects.
If the IRB finds that an intervention
§ 26.402 Definitions.
or procedure presents more than mini-
The definitions in § 26.102 shall be ap- mal risk to children, EPA will not con-
plicable to this subpart as well. In ad- duct or fund observational research
dition, the following terms are defined: that includes such an intervention or
(a) For purposes of this subpart, Ad- procedure unless the IRB finds and doc-
ministrator means the Administrator of uments that:
the Environmental Protection Agency (a) The intervention or procedure
and any other officer or employee of holds out the prospect of direct benefit
the Environmental Protection Agency to the individual subject or is likely to
to whom authority has been delegated contribute to the subject’s well-being;
by the Administrator. (b) The risk is justified by the antici-
(b) Assent means a child’s affirmative pated benefit to the subjects;
agreement to participate in research. (c) The relation of the anticipated
Mere failure to object should not, ab- benefit to the risk is at least as favor-
sent affirmative agreement, be con- able to the subjects as that presented
strued as assent. by available alternative approaches;
(c) Permission means the agreement of and
parent(s) or guardian to the participa- (d) Adequate provisions are made for
tion of their child or ward in research. soliciting the assent of the children
(d) Parent means a child’s biological and permission of their parents or
or adoptive parent. guardians, as set forth in § 26.406.
(e) Guardian means an individual who
is authorized under applicable State, § 26.406 Requirements for permission
by parents or guardians and for as-
Tribal, or local law to consent on be- sent by children.
half of a child to general medical care.
(f) Observational research means any (a) In addition to the determinations
research with human subjects that required under other applicable sec-
does not meet the definition of re- tions of this subpart, the IRB shall de-
search involving intentional exposure termine that adequate provisions are
of a human subject in § 26.202(a). made for soliciting the assent of the
children, when in the judgment of the
[71 FR 6168, Feb. 6, 2006, as amended at 84 FR IRB the children are capable of pro-
35318, July 23, 2019] viding assent. In determining whether
children are capable of assenting, the
§ 26.403 IRB duties. IRB shall take into account the ages,
In addition to other responsibilities maturity, and psychological state of
assigned to IRBs under this part, each the children involved. This judgment
IRB shall review observational re- may be made for all children to be in-
search covered by this subpart and ap- volved in research under a particular
prove only research that satisfies the protocol, or for each child, as the IRB
conditions of all applicable sections of deems appropriate. If the IRB deter-
this subpart. mines that the capability of some or
all of the children is so limited that
§ 26.404 Observational research not in- they cannot reasonably be consulted or
volving greater than minimal risk. that the intervention or procedure in-
EPA will conduct or fund observa- volved in the observational research
tional research in which the IRB finds holds out a prospect of direct benefit
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that no greater than minimal risk to that is important to the health or well-
children is presented, only if the IRB being of the children and is available
finds that adequate provisions are only in the context of the research, the
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§ 26.1101 40 CFR Ch. I (7–1–21 Edition)
35318, July 23, 2019] has submitted or made available for in-
spection the results of such research to
Subparts E–J [Reserved] EPA; or
314
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Environmental Protection Agency § 26.1102
315
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§ § 26.1103–26.1106 40 CFR Ch. I (7–1–21 Edition)
that are performed for research pur- inition in 7 U.S.C. 136(u) (Federal Insec-
poses. ticide, Fungicide, and Rodenticide Act,
(3) Interaction includes communica- section 2(u)).
tion or interpersonal contact between (k) Research means a systematic in-
investigator and subject. vestigation, including research, devel-
(4) Private information includes infor- opment, testing and evaluation, de-
mation about behavior that occurs in a signed to develop or contribute to gen-
context in which an individual can rea- eralizable knowledge. Activities that
sonably expect that no observation or meet this definition constitute re-
recording is taking place, and informa- search for purposes of this subpart,
tion which has been provided for spe- whether or not they are considered re-
cific purposes by an individual and search for other purposes. For example,
which the individual can reasonably some demonstration and service pro-
expect will not be made public (e.g., a grams may include research activities.
medical record). (l) Research involving intentional expo-
(5) Identifiable private information is sure of a human subject means a study of
private information for which the iden- a substance in which the exposure to
tity of the subject is or may readily be the substance experienced by a human
ascertained by the investigator or asso- subject participating in the study
ciated with the information. would not have occurred but for the
(6) An identifiable biospecimen is a bio- human subject’s participation in the
specimen for which the identity of the study.
subject is or may readily be
(m) Written, or in writing, for purposes
ascertained by the investigator or asso-
of this subpart refers to writing on a
ciated with the biospecimen.
tangible medium (e.g., paper) or in an
(e) Institution means any public or
electronic format.
private entity or agency (including fed-
eral, state, and other agencies). § § 26.1103–26.1106 [Reserved]
(f) IRB means an institutional review
board established in accord with and § 26.1107 IRB membership.
for the purposes expressed in this part.
(g) IRB approval means the deter- (a) Each IRB shall have at least five
mination of the IRB that the research members, with varying backgrounds to
has been reviewed and may be con- promote complete and adequate review
ducted at an institution within the of research activities that are pre-
constraints set forth by the IRB and by sented for its approval. The IRB shall
other institutional and federal require- be sufficiently qualified through the
ments. experience and expertise of its mem-
(h) Minimal risk means that the prob- bers (professional competence), and the
ability and magnitude of harm or dis- diversity of the members, including
comfort anticipated in the research are consideration of race, gender, and cul-
not greater in and of themselves than tural backgrounds and sensitivity to
those ordinarily encountered in daily such issues as community attitudes, to
life or during the performance of rou- promote respect for its advice and
tine physical or psychological exami- counsel in safeguarding the rights and
nations or tests. welfare of human subjects. The IRB
(i) Person means any person, as that shall be able to ascertain the accept-
term is defined in FIFRA section 2(s) (7 ability of proposed research in terms of
U.S.C. 136), except: institutional commitments (including
(1) A Federal agency that is subject policies and resources) and regulations,
to the provisions of the Federal Policy applicable law, and standards of profes-
for the Protection of Human Subjects sional conduct and practice. The IRB
of Research, and shall therefore include persons knowl-
(2) A person when performing human edgeable in these areas. If an IRB regu-
research supported by a federal agency larly reviews research that involves a
covered by paragraph (i)(1) of this sec- category of subjects vulnerable to coer-
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Environmental Protection Agency § 26.1109
tinuing review of research and for re- ment, the information would meaning-
porting its findings and actions to the fully add to the protection of the rights
investigator and the institution; and welfare of subjects.
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§ 26.1110 40 CFR Ch. I (7–1–21 Edition)
(c) An IRB shall require documenta- Research Protections, HHS, or any suc-
tion of informed consent in accordance cessor office.
with § 26.1117. (b)(1) An IRB may use the expedited
(d) An IRB shall notify investigators review procedure to review the fol-
and the institution in writing of its de- lowing:
cision to approve or disapprove the pro- (i) Some or all of the research ap-
posed research activity, or of modifica- pearing on the list described in para-
tions required to secure IRB approval graph (a) of this section, unless the re-
of the research activity. If the IRB de- viewer finds that the study involves
cides to disapprove a research activity, more than minimal risk.
it shall include in its written notifica- (ii) Minor changes in previously ap-
tion a statement of the reasons for its proved research during the period for
decision and give the investigator an which approval is authorized.
opportunity to respond in person or in (2) Under an expedited review proce-
writing. dure, the review may be carried out by
(e) An IRB shall conduct continuing the IRB chairperson or by one or more
review of research requiring review by experienced reviewers designated by
the convened IRB at intervals appro- the chairperson from among members
priate to the degree of risk, not less of the IRB. In reviewing the research,
than once per year, except as described the reviewers may exercise all of the
in paragraph (f) of this section. authorities of the IRB except that the
(f)(1) Unless an IRB determines oth- reviewers may not disapprove the re-
erwise, continuing review of research is search. A research activity may be dis-
not required in the following cir- approved only after review in accord-
cumstances: ance with the non-expedited procedure
(i) Research eligible for expedited re- set forth in § 26.1108(b).
view in accordance with § 26.1110; (c) Each IRB that uses an expedited
(ii) Research that has progressed to review procedure shall adopt a method
the point that it involves only one or for keeping all members advised of re-
both of the following, which are part of search proposals that have been ap-
the IRB-approved study: proved under the procedure.
(A) Data analysis, including analysis (d) The Administrator may restrict,
of identifiable private information or suspend, terminate, or choose not to
identifiable biospecimens, or authorize an institution’s or IRB’s use
(B) Accessing follow-up clinical data
of the expedited review procedure for
from procedures that subjects would
research covered by this subpart.
undergo as part of clinical care.
(2) [Reserved] § 26.1111 Criteria for IRB approval of
(g) An IRB shall have authority to research.
observe or have a third party observe
(a) In order to approve research cov-
the consent process and the research.
ered by this subpart the IRB shall de-
§ 26.1110 Expedited review procedures termine that all of the following re-
for certain kinds of research involv- quirements are satisfied:
ing no more than minimal risk, and (1) Risks to subjects are minimized:
for minor changes in approved re- (i) By using procedures that are con-
search. sistent with sound research design and
(a) The Secretary of HHS, has estab- that do not unnecessarily expose sub-
lished, and published as a notice in the jects to risk, and
FEDERAL REGISTER, a list of categories (ii) Whenever appropriate, by using
of research that may be reviewed by procedures already being performed on
the IRB through an expedited review the subjects for diagnostic or treat-
procedure. The Secretary will evaluate ment purposes.
the list at least every 8 years and (2) Risks to subjects are reasonable
amend it, as appropriate after con- in relation to anticipated benefits, if
sultation with other federal depart- any, to subjects, and the importance of
ments and agencies and after publica- the knowledge that may reasonably be
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tion in the FEDERAL REGISTER for pub- expected to result. In evaluating risks
lic comment. A copy of the list is and benefits, the IRB should consider
available from the Office for Human only those risks and benefits that may
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Environmental Protection Agency § 26.1115
those officials may not approve the re- (6) Written procedures for the IRB in
search if it has not been approved by the same detail as described in
an IRB. § 26.1108(a)(3) and (4).
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§ 26.1116 40 CFR Ch. I (7–1–21 Edition)
320
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Environmental Protection Agency § 26.1116
where further information may be ob- (5) A statement that significant new
tained; findings developed during the course of
(7) An explanation of whom to con- the research that may relate to the
tact for answers to pertinent questions subject’s willingness to continue par-
about the research and research sub- ticipation will be provided to the sub-
jects’ rights, and whom to contact in ject;
the event of a research- related injury (6) The approximate number of sub-
to the subject; jects involved in the study;
(8) A statement that participation is (7) A statement that the subject’s
voluntary, refusal to participate will biospecimens (even if identifiers are re-
involve no penalty or loss of benefits to moved) may be used for commercial
which the subject is otherwise entitled,
profit and whether the subject will or
and the subject may discontinue par-
will not share in this commercial prof-
ticipation at any time without penalty
it;
or loss of benefits to which the subject
is otherwise entitled; and (8) A statement regarding whether
(9) One of the following statements clinically relevant research results, in-
about any research that involves the cluding individual research results,
collection of identifiable private infor- will be disclosed to subjects, and if so,
mation or identifiable biospecimens: under what conditions; and
(i) A statement that identifiers (9) For research involving biospeci-
might be removed from the identifiable mens, whether the research will (if
private information or identifiable bio- known) or might include whole genome
specimens and that, after such re- sequencing (i.e., sequencing of a human
moval, the information or biospeci- germline or somatic specimen with the
mens could be used for future research intent to generate the genome or
studies or distributed to another inves- exome sequence of that specimen).
tigator for future research studies (d) Elements of broad consent for the
without additional informed consent storage, maintenance, and secondary re-
from the subject, if this might be a pos- search use of identifiable private informa-
sibility; or tion or identifiable biospecimens. Broad
(ii) A statement that the subject’s in- consent for the storage, maintenance,
formation or biospecimens collected as and secondary research use of identifi-
part of the research, even if identifiers able private information or identifiable
are removed, will not be used or dis- biospecimens (collected for either re-
tributed for future research studies. search studies other than the proposed
(c) Additional elements of informed con- research or non-research purposes) is
sent. One or more of the following ele- permitted as an alternative to the in-
ments of information, when appro-
formed consent requirements in para-
priate, shall also be provided to each
graphs (b) and (c) of this section. Broad
subject:
consent is only permitted for the pur-
(1) A statement that the particular
poses mentioned and may not be sub-
treatment or procedure may involve
stituted for the elements of informed
risks to the subject (or to the embryo
consent in paragraphs (b) and (c) of
or fetus, if the subject may become
pregnant) that are currently unforesee- this section, as required for the inten-
able; tional exposure research subject to this
(2) Anticipated circumstances under subpart. If the subject is asked to pro-
which the subject’s participation may vide broad consent, in addition to pro-
be terminated by the investigator viding the informed consent required in
without regard to the subject’s con- paragraphs (b) and (c), the following
sent; shall be provided to each subject:
(3) Any additional costs to the sub- (1) The information required in para-
ject that may result from participation graphs (b)(2), (3), (5), and (8) and, when
in the research; appropriate, (c)(7) and (9) of this sec-
(4) The consequences of a subject’s tion;
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decision to withdraw from the research (2) A general description of the types
and procedures for orderly termination of research that may be conducted with
of participation by the subject; the identifiable private information or
321
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§ 26.1117 40 CFR Ch. I (7–1–21 Edition)
recruiting, or determining the eligi- consent form stating that the elements
bility of prospective subjects without of informed consent required by
the informed consent of the prospective § 26.1116 have been presented orally to
322
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Environmental Protection Agency § 26.1203
the subject, and that the key informa- as originally provided to the IRB, and
tion required by § 26.1116(a)(5)(i) was as approved by the IRB.
presented first to the subject, before (c) Information about how subjects
other information, if any, was pro- will be recruited, including any adver-
vided. The IRB shall approve a written tisements proposed to be used.
summary of what is to be said to the (d) A description of the cir-
subject. When this method is used, cumstances and methods proposed for
there shall be a witness to the oral presenting information to potential
presentation. Only the short form itself human subjects for the purpose of ob-
is to be signed by the subject. However, taining their informed consent.
the witness shall sign both the short (e) All correspondence between the
form and a copy of the summary, and IRB and the investigators or sponsors.
the person actually obtaining consent (f) Official notification to the sponsor
shall sign a copy of the summary. A or investigator, in accordance with the
copy of the summary must be given to requirements of this subpart, that re-
the subject, in addition to a copy of the search involving human subjects has
short form. been reviewed and approved by an IRB.
§ § 26.1118–26.1122 [Reserved]
Subpart L—Prohibition of Third-
§ 26.1123 Early termination of re- Party Research involving In-
search. tentional Exposure to a Pes-
The Administrator may require that ticide of Human Subjects who
any project covered by this subpart be are Children or Pregnant or
terminated or suspended when the Ad- Nursing Women
ministrator finds that an IRB, investi-
gator, sponsor, or institution has mate-
rially failed to comply with the terms SOURCE: 71 FR 6168, Feb. 6, 2006, unless oth-
of this subpart. erwise noted.
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§ 26.1301 40 CFR Ch. I (7–1–21 Edition)
Subpart M—Requirements for Sub- describe the efforts made to obtain the
mission of Information on the information.
Ethical Conduct of Com-
pleted Human Research Subpart N [Reserved]
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Environmental Protection Agency § 26.1506
rights and welfare of human subjects, agency may elect to publish a notice of
notify relevant State and Federal regu- its action in the FEDERAL REGISTER.
latory agencies and other parties with (d) EPA may refuse to consider in
a direct interest of the deficiencies in support of a regulatory decision the
the operation of the IRB. data from human research, covered by
(c) The parent institution is pre- subparts A through L of this part, that
sumed to be responsible for the oper- was reviewed by an IRB or conducted
ation of an IRB, and EPA will ordi- at an institution during the period of
narily direct any administrative action disqualification, unless the IRB or the
under this subpart against the institu- parent institution is reinstated as pro-
tion. However, depending on the evi- vided in § 26.1505, or unless such re-
dence of responsibility for deficiencies, search is deemed scientifically sound
determined during the investigation,
and crucial to the protection of public
EPA may restrict its administrative
health, under the procedure defined in
actions to the IRB or to a component
of the parent institution determined to § 26.1706.
be responsible for formal designation of § 26.1504 Public disclosure of informa-
the IRB. tion regarding revocation.
[71 FR 6168, Feb. 6, 2006, as amended at 78 FR A determination that EPA has dis-
10544, Feb. 14, 2013]
qualified an institution from studies
§ 26.1503 Disqualification of an IRB or subject to this part and the adminis-
an institution. trative record regarding that deter-
mination are disclosable to the public
(a) Whenever the IRB or the institu- under 40 CFR part 2.
tion has failed to take adequate steps
to correct the noncompliance stated in § 26.1505 Reinstatement of an IRB or
the letter sent by the Agency under an institution.
§ 26.1502(a) and the EPA Administrator
determines that this noncompliance An IRB or an institution may be re-
may justify the disqualification of the instated to conduct studies subject to
IRB or of the parent institution, the this part if the Administrator deter-
Administrator may institute appro- mines, upon an evaluation of a written
priate proceedings. submission from the IRB or institution
(b) The Administrator may disqualify that explains the corrective action
an IRB or the parent institution from that the institution or IRB has taken
studies subject to this part if the Ad- or plans to take, that the IRB or insti-
ministrator determines that: tution has provided adequate assurance
(1) The IRB has refused or repeatedly that it will operate in compliance with
failed to comply with any of the regu- the standards set forth in this part. No-
lations set forth in this part, and tification of reinstatement shall be
(2) The noncompliance adversely af- provided to all persons notified under
fects the rights or welfare of the § 26.1502(b)(4).
human subjects of research.
[71 FR 6168, Feb. 6, 2006, as amended at 78 FR
(c) If the Administrator determines 10544, Feb. 14, 2013]
that disqualification is appropriate,
the Administrator will issue an order § 26.1506 Debarment.
that explains the basis for the deter-
mination and that prescribes any ac- If EPA determines that an institu-
tions to be taken with regard to ongo- tion or investigator repeatedly has not
ing human research, covered by sub- complied with or has committed an
parts A through L of this part, con- egregious violation of the applicable
ducted under the review of the IRB. regulations in subparts A through L of
EPA will send notice of the disquali- this part, EPA may recommend that
fication to the IRB and the parent in- institution or investigator be declared
stitution. Other parties with a direct ineligible to participate in EPA-sup-
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325
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§ 26.1507 40 CFR Ch. I (7–1–21 Edition)
with procedures specified at 2 CFR part (b) In reviewing proposals for new
1532. human research submitted under
[71 FR 6168, Feb. 6, 2006, as amended at 72 FR
§ 26.1125, the EPA Administrator must
2427, Jan. 19, 2007] consider and make determinations re-
garding the scientific validity and reli-
§ 26.1507 Actions alternative or addi- ability of the proposed research, in-
tional to disqualification. cluding:
Disqualification of an IRB or of an (1) Whether the research would be
institution is independent of, and nei- likely to produce data that address an
ther in lieu of nor a precondition to, important scientific or policy question
other statutorily authorized pro- that cannot be resolved on the basis of
ceedings or actions. EPA may, at any animal data or human observational
time, on its own initiative or through research.
the Department of Justice, institute (2) Whether the proposed research is
any appropriate judicial proceedings designed in accordance with current
(civil or criminal) and any other appro- scientific standards and practices to:
priate regulatory action, in addition to (i) Address the research question.
or in lieu of, and before, at the time of, (ii) Include representative study pop-
or after, disqualification. EPA may ulations for the endpoint in question.
also refer pertinent matters to another (iii) Have adequate statistical power
Federal, State, or local government to detect appropriate effects.
agency for any action that that agency (3) Whether the investigator proposes
determines to be appropriate. to conduct the research in accordance
with recognized good research prac-
[71 FR 6168, Feb. 6, 2006, as amended at 78 FR tices, including, when appropriate,
10544, Feb. 14, 2013] good clinical practice guidelines and
monitoring for the safety of subjects.
Subpart P—Review of Proposed (c) In reviewing proposals for new re-
and Completed Human Research search submitted under § 26.1125, the
EPA Administrator must consider and
SOURCE: 71 FR 6168, Feb. 6, 2006, unless oth- make determinations regarding ethical
erwise noted. aspects of the proposed research, in-
cluding:
§ 26.1601 To what does this subpart (1) Whether adequate information is
apply? available from prior animal studies or
This subpart applies to both of the from other sources to assess the poten-
following: tial risks to subjects in the proposed
(a) Reviews by EPA and by the research.
Human Studies Review Board of pro- (2) Whether the research proposal
posals to conduct new research subject adequately identifies anticipated risks
to § 26.1125. to human subjects and their likelihood
(b) Reviews by EPA on or after April of occurrence, minimizes identified
15, 2013 and, to the extent required by risks to human subjects, and identifies
§ 26.1604, by the Human Studies Review likely benefits of the research and
Board of reports of completed research their distribution.
subject to § 26.1701. (3) Whether the proposed research
presents an acceptable balance of risks
[78 FR 10544, Feb. 14, 2013]
and benefits. In making this deter-
§ 26.1602 Definitions. mination for research intended to re-
duce the interspecies uncertainty fac-
The definitions in § 26.1102 also apply tor in a pesticide risk assessment, the
to this subpart. EPA Administrator will also consider
[78 FR 10544, Feb. 14, 2013] the process laid out and the attendant
discussion for evaluating that type of
§ 26.1603 EPA review of proposed study as provided in Recommendation
human research. 4–1 of the 2004 Report from the Na-
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(a) EPA must review all proposals for tional Research Council of the Na-
new human research submitted under tional Academy of Sciences (NAS), en-
§ 26.1125 in a timely manner. titled ‘‘Intentional Human Dosing
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Environmental Protection Agency § 26.1604
Studies for EPA Regulatory Purposes: subjects (whether or not the research
Scientific and Ethical Issues.’’ was subject to Federal regulation).
(4) Whether subject selection will be (f) When research covered by subpart
equitable. K takes place in foreign countries, pro-
(5) Whether subjects’ participation cedures normally followed in the for-
would follow free and fully informed eign countries to protect human sub-
consent. jects may differ from those set forth in
(6) Whether an appropriately con- subpart K. (An example is a foreign in-
stituted IRB or its foreign equivalent stitution which complies with guide-
has approved the proposed research. lines consistent with the World Med-
ical Assembly Declaration of Helsinki,
(7) If any person from a vulnerable
issued either by sovereign states or by
population may become a subject in
an organization whose function for the
the proposed research, whether there is
protection of human research subjects
a convincing justification for selection
is internationally recognized.) In these
of such a person, and whether measures
circumstances, if the Administrator de-
taken to protect such human subjects
termines that the procedures pre-
are adequate.
scribed by the institution afford pro-
(8) If any person with a condition tections that are at least equivalent to
that would put them at increased risk those provided in subpart K, the Ad-
for adverse effects may become a sub- ministrator may approve the substi-
ject in the proposed research, whether tution of the foreign procedures in lieu
there is a convincing justification for of the procedural requirements pro-
selection of such a person, and whether vided in subpart K.
measures taken to protect such human (g) Following initial evaluation of
subjects are adequate. the protocol by Agency staff, EPA
(9) Whether any proposed payments shall submit the protocol and all sup-
to subjects are consistent with the porting materials, together with the
principles of justice and respect for staff evaluation, to the Human Studies
persons, and whether they are so high Review Board.
as to constitute undue inducement or (h) EPA must provide the submitter
so low as to be attractive only to indi- of the proposal copies of the EPA and
viduals who are socioeconomically dis- Human Studies Review Board reviews.
advantaged.
[71 FR 6168, Feb. 6, 2006. Redesignated at 78
(10) Whether the sponsor or investi- FR 10544, Feb. 14, 2013 and amended at 78 FR
gator would provide needed medical 10544, Feb. 14, 2013]
care for injuries incurred in the pro-
posed research, without cost to the § 26.1604 EPA review of completed
human subjects. human research.
(d) With respect to any research or (a) When considering, under any reg-
any class of research subject to this ulatory statute it administers, data
subpart, the EPA Administrator may from completed research involving in-
recommend additional conditions tentional exposure of humans to a pes-
which, in the judgment of the EPA Ad- ticide, EPA must thoroughly review
ministrator, are necessary for the pro- the material submitted under § 26.1303,
tection of human subjects. if any, and other available, relevant in-
(e) In reviewing proposals covered by formation and document its conclu-
this subpart, the Administrator may sions regarding the scientific and eth-
take into account factors such as ical conduct of the research.
whether the applicant has been subject (b) EPA shall submit its review of
to a termination or suspension under data from human research covered by
§ 26.123(a) or § 26.1123 and whether the subpart Q, together with the available
applicant or the person or persons who supporting materials, to the Human
would direct or has/have directed the Studies Review Board if EPA decides to
scientific and technical aspects of an rely on the data and:
activity has/have, in the judgment of (1) The data are derived from re-
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§ 26.1605 40 CFR Ch. I (7–1–21 Edition)
and the research was conducted for the § 26.1607 Human Studies Review
purpose of identifying or measuring a Board review of completed human
toxic effect. research.
(c) In its discretion, EPA may submit In commenting on reports of com-
data from research not covered by pleted research submitted to it by
paragraph (b) of this section to the EPA, the Human Studies Review Board
Human Studies Review Board for their must consider the scientific merits and
review. ethical aspects of the completed re-
(d) EPA shall notify the submitter of search, and must apply the appropriate
the research of the results of the EPA standards in subpart Q of this part.
and Human Studies Review Board re- [78 FR 10545, Feb. 14, 2013]
views.
[71 FR 6168, Feb. 6, 2006. Redesignated at 78 Subpart Q—Standards for Assess-
FR 10544, Feb. 14, 2013 and amended at 78 FR ing Whether To Rely on the
10545, Feb. 14, 2013] Results of Human Research in
EPA Actions
§ 26.1605 Operation of the Human
Studies Review Board.
SOURCE: 71 FR 6168, Feb. 6, 2006, unless oth-
EPA shall establish and operate a erwise noted.
Human Studies Review Board as fol-
lows: § 26.1701 To what does this subpart
(a) Membership. The Human Studies apply?
Review Board shall consist of members (a) For decisions under FIFRA (7
who are not employed by EPA, who U.S.C. 136–136y) or section 408 of
meet the ethics and other requirements FFDCA (21 U.S.C. 346a), this subpart
for special government employees, and applies to research involving inten-
who have expertise in fields appro- tional exposure of human subjects to
priate for the scientific and ethical re- any substance.
view of human research, including re- (b) For decisions under any regu-
search ethics, biostatistics, and human latory statute administered by EPA
toxicology. other than those statutes designated in
(b) Responsibilities. The Human Stud- paragraph (a) of this section, this sub-
ies Review Board shall comment on the part applies to research involving in-
tentional exposure of human subjects
scientific and ethical aspects of re-
to a pesticide.
search proposals and reports of com-
pleted research with human subjects [78 FR 10545, Feb. 14, 2013]
submitted by EPA for its review and,
on request, advise EPA on ways to § 26.1702 Definitions.
strengthen its programs for protection The definitions in § 26.1102 and
of human subjects of research. § 26.1202 also apply to this subpart.
[71 FR 6168, Feb. 6, 2006. Redesignated at 78 [78 FR 10545, Feb. 14, 2013]
FR 10544, Feb. 14, 2013]
§ 26.1703 Prohibitions applying to all
§ 26.1606 Human Studies Review research subject to this subpart.
Board review of proposed human (a) Prohibition of reliance on sci-
research. entifically invalid research. EPA must
In commenting on proposals for new not rely on data from research subject
research submitted to it by EPA, the to this subpart unless EPA determines
Human Studies Review Board must that the data are relevant to a sci-
consider the scientific merits and eth- entific or policy question important for
ical aspects of the proposed research, EPA decisionmaking, that the data
including all elements required in were derived in a manner that makes
§ 26.1603(b) and (c) and any additional them scientifically valid and reliable,
conditions recommended pursuant to and that it is appropriate to use the
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Environmental Protection Agency § 26.1705
(1) Whether the research was de- (c) The prohibition in this section is
signed and conducted in accordance in addition to the prohibitions in
with appropriate scientific standards § 26.1703.
and practices prevailing at the time
[78 FR 10545, Feb. 14, 2013]
the research was conducted.
(2) The extent to which the research § 26.1705 Prohibition of reliance on un-
subjects are representative of the popu- ethical human research with non-
lations for the endpoint or endpoints in pregnant, non-nursing adults initi-
question. ated after April 7, 2006.
(3) The statistical power of the data (a) This section applies to research
to support the scientific conclusion subject to this subpart, that:
EPA intends to draw from the data. (1) Was initiated after April 7, 2006.
(4) In a study that reports only a No (2) Was subject, at the time it was
Observed Effect Level (NOEL) or a No conducted, either to subparts A
Observed Adverse Effect Level through L of this part, or to the codi-
(NOAEL), whether a dose level in the fication of the Common Rule by an-
study gave rise to a biological effect, other Federal department or agency.
thereby demonstrating that the study (b) Except as provided in § 26.1706,
had adequate sensitivity to detect an EPA must not rely on data from any
effect of interest. research subject to this section unless
(b) Prohibition of reliance on re- EPA determines that the research was
search subject to this subpart involv- conducted in substantial compliance
ing intentional exposure of human sub- with either:
jects who are pregnant women (and (1) All applicable provisions of sub-
therefore their fetuses), nursing parts A through L of this part, or the
women, or children. Except as provided codification of the Common Rule by
in § 26.1706, EPA must not rely on data another Federal department or agency;
from any research subject to this sub- or
part involving intentional exposure of
(2) If the research was conducted out-
any human subject who is a pregnant
side the United States, with procedures
woman (and therefore her fetus), a
at least as protective of subjects as
nursing woman, or a child.
those in subparts A through L of this
[78 FR 10545, Feb. 14, 2013] part, or the codification of the Com-
mon Rule by another Federal depart-
§ 26.1704 Prohibition of reliance on un- ment or agency.
ethical human research with non- (c) Except as provided in § 26.1706,
pregnant, non-nursing adults.
EPA must not rely on data from any
(a) This section applies to research research subject to this section unless
subject to this subpart that is not sub- EPA determines that the research was
ject to § 26.1705. conducted in substantial compliance
(b) Except as provided in § 26.1706, with either:
EPA must not rely on data from any (1) A proposal that was found to be
research subject to this section if there acceptable under § 26.1603(c), and no
is clear and convincing evidence that: amendments to or deviations from that
(1) The conduct of the research was proposal placed participants at in-
fundamentally unethical (e.g., the re- creased risk of harm (based on knowl-
search was intended to seriously harm edge available at the time the study
participants or failed to obtain in- was conducted) or impaired their in-
formed consent); or formed consent. If EPA discovers that
(2) The conduct of the research was the submitter of the proposal materi-
deficient relative to the ethical stand- ally misrepresented or knowingly
ards prevailing at the time the re- omitted information that would have
search was conducted in a way that altered the outcome of EPA’s evalua-
placed participants at increased risk of tion of the proposal under § 26.1603(c),
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harm (based on knowledge available at EPA must not rely on that data.
the time the study was conducted) or (2) A proposal that would have been
impaired their informed consent. found to be acceptable under
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§ 26.1706 40 CFR Ch. I (7–1–21 Edition)
§ 26.1603(c), if it had been subject to re- 27.3 Basis for civil penalties and assess-
view under that section, and no amend- ments.
ments to or deviations from that pro- 27.4 Investigation.
27.5 Review by the reviewing official.
posal placed participants at increased 27.6 Prerequisites for issuing a complaint.
risk of harm (based on knowledge 27.7 Complaint.
available at the time the study was 27.8 Service of complaint.
conducted) or impaired their informed 27.9 Answer.
consent. 27.10 Default upon failure to file an answer.
(d) The prohibition in this section is 27.11 Referral of complaint and answer to
in addition to the prohibitions in the presiding officer.
27.12 Notice of hearing.
§ 26.1703. 27.13 Parties to the hearing.
[78 FR 10545, Feb. 14, 2013] 27.14 Separation of functions.
27.15 Ex parte contacts.
§ 26.1706 Criteria and procedure for 27.16 Disqualification of the reviewing offi-
decisions to protect public health cial or presiding officer.
by relying on otherwise unaccept- 27.17 Rights of parties.
able research. 27.18 Authority of the presiding officer.
27.19 Prehearing conferences.
This section establishes the exclusive 27.20 Disclosure of documents.
criteria and procedure by which EPA 27.21 Discovery.
may decide to rely on data from re- 27.22 Exchange of witness lists, statements,
search that is not acceptable under the and exhibits.
standards in §§ 26.1703 through 26.1705. 27.23 Subpoenas for attendance at hearing.
27.24 Protective order.
EPA may rely on such data only if all 27.25 Fees.
the conditions in paragraphs (a) 27.26 Form, filing and service of papers.
through (d) of this section are satisfied: 27.27 Computation of time.
(a) EPA has obtained the views of the 27.28 Motions.
Human Studies Review Board con- 27.29 Sanctions.
cerning the proposal to rely on the oth- 27.30 The hearing and burden of proof.
erwise unacceptable data, 27.31 Determining the amount of penalties
and assessments.
(b) EPA has provided an opportunity 27.32 Location of hearing.
for public comment on the proposal to 27.33 Witnesses.
rely on the otherwise unacceptable 27.34 Evidence.
data, 27.35 The record.
(c) EPA has determined that relying 27.36 Post-hearing briefs.
on the data is crucial to a decision that 27.37 Initial decision.
would impose a more stringent regu- 27.38 Reconsideration of initial decision.
27.39 Appeal to authority head.
latory restriction that would improve 27.40 Stay ordered by the Department of
protection of public health, such as a Justice.
limitation on the use of a pesticide, 27.41 Stay pending appeal.
than could be justified without relying 27.42 Judicial review.
on the data, and 27.43 Collection of civil penalties and as-
(d) EPA has published a full expla- sessments.
nation of its decision to rely on the 27.44 Right to administrative offset.
27.45 Deposit in Treasury of United States.
otherwise unacceptable data, including 27.46 Compromise or settlement.
a thorough discussion of the ethical de- 27.47 Limitations.
ficiencies of the underlying research 27.48 Delegated functions.
and the full rationale for finding that
AUTHORITY: 31 U.S.C. 3801–3812; Pub. L. 101–
the standard in paragraph (c) of this 410, 104 Stat. 890, 28 U.S.C. 2461 note; Pub. L.
section was met. 104–134, 110 Stat. 1321, 31 U.S.C. 3701 note.
[71 FR 6168, Feb. 6, 2006, as amended at 78 FR SOURCE: 53 FR 15182, Apr. 27, 1988, unless
10546, Feb. 14, 2013] otherwise noted.
330
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Environmental Protection Agency § 27.2
3812. 31 U.S.C. 3809 of the statute re- (i) Provided any portion of the money
quires each authority head to promul- requested or demanded; or
gate regulations necessary to imple- (ii) Will reimburse such recipient or
ment the provisions of the statute. party for any portion of the money
(b) Purpose. This part (1) establishes paid on such request or demand; or
administrative procedures for imposing (c) Made to the Authority which has
civil penalties and assessments against the effect of decreasing an obligation
persons who make, submit, or present, to pay or account for property, serv-
or cause to be made, submitted, or pre- ices, or money.
sented, false, fictitious, or fraudulent Complaint means the administrative
claims or written statements to the complaint served by the reviewing offi-
Environmental Protection Agency, and cial on the defendant under § 27.7.
(2) specifies the hearing and appeal Defendant means any person alleged
rights of persons subject to allegations in a complaint under § 27.7 to be liable
of liability for such penalties and as- for a civil penalty or assessment under
sessments. § 27.3.
Environmental Appeals Board means
§ 27.2 Definitions. the Board within the Agency described
Administrative Law Judge means an in § 1.25 of this title.
administrative law judge in the Au- Government means the United States
thority appointed pursuant to 5 U.S.C. Government.
3105 or detailed to the Authority pursu- Hearing Clerk means the Office of the
ant to 5 U.S.C. 3344. Hearing Clerk (1900), United States En-
Administrator means the Adminis- vironmental Protection Agency, 1200
trator of the United States Environ- Pennsylvania Ave., NW., Washington,
mental Protection Agency. DC 20460.
Individual means a natural person.
Authority means the United States
Initial decision means the written de-
Environmental Protection Agency.
cision of the presiding officer required
Benefit means, in the context of
by § 27.10 or § 27.37, and includes a re-
‘‘statement,’’ anything of value, in-
vised initial decision issued following a
cluding but not limited to any advan-
remand or a motion for reconsider-
tage, preference, privilege, license, per-
ation.
mit, favorable decision, ruling, status,
Investigating official means the In-
or loan guarantee.
spector General of the United States
Claim means any request, demand, or Environmental Protection Agency or
submission— an officer or employee of the Office of
(a) Made to the Authority for prop- Inspector General designated by the In-
erty, services, or money (including spector General and serving in a posi-
money representing grants, loans, in- tion for which the rate of basic pay is
surance, or benefits); not less than the minimum rate of
(b) Made to a recipient of property, basic pay for grade GS–16 under the
services, or money from the Authority General Schedule.
or to a party to a contract with the Au- Knows or has reason to know means
thority— that a person, with respect to a claim
(1) For property or services if the or statement—
United States— (a) Has actual knowledge that the
(i) Provided such property or serv- claim or statement is false, fictitious,
ices; or fraudulent;
(ii) Provided any portion of the funds (b) Acts in deliberate ignorance of
for the purchase of such property or the truth or falsity of the claim or
services; or statement; or
(iii) Will reimburse such recipient or (c) Acts in reckless disregard of the
party for the purchase of such property truth or falsity of the claim or state-
or services; or ment.
(2) For the payment of money (in- Makes, wherever it appears, shall in-
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cluding money representing grants, clude the terms presents, submits, and
loans, insurance, or benefits) if the causes to be made, presented, or sub-
United States— mitted. As the context requires, making
331
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§ 27.3 40 CFR Ch. I (7–1–21 Edition)
or made shall likewise include the cor- such contract or for such grant, loan,
responding forms of such terms. or benefit.
Person means any individual, part- [53 FR 15182, Apr. 27, 1988, as amended at 57
nership, corporation, association, or FR 5326, Feb. 13, 1992]
private organization, and includes the
plural of those terms. § 27.3 Basis for civil penalties and as-
sessments.
Presiding officer means the adminis-
trative law judge designated by the (a) Claims. (1) Except as provided in
Chief administrative law judge to serve paragraph (c) of this section, any per-
as presiding officer. son who makes a claim that the person
Representative means an attorney who knows or has reason to know—
is a member in good standing of the bar (i) Is false, fictitious, or fraudulent;
of any State, Territory, or possession (ii) Includes or is supported by any
written statement which asserts a ma-
of the United States or of the District
terial fact which is false, fictitious, or
of Columbia or the Commonwealth of
fraudulent;
Puerto Rico, or other representative
(iii) Includes, or is supported by, any
who must conform to the standards of written statement that—
conduct and ethics required of practi- (A) Omits a material fact;
tioners before the courts of the United (B) Is false, fictitious, or fraudulent
States. as a result of such omission; and
Reviewing official means the General (C) Is a statement in which the per-
Counsel of the Authority or his des- son making such statement has a duty
ignee who is— to include such material fact; or
(a) Not subject to supervision by, or (iv) Is for payment for the provision
required to report to, the investigating of property or services which the per-
official; son has not provided as claimed, shall
(b) Not employed in the organiza- be subject, in addition to any other
tional unit of the Authority in which remedy that may be prescribed by law,
the investigating official is employed; to a civil penalty of not more than the
and operative effective statutory maximum
(c) Serving in a position for which amount, as provided in 40 CFR 19.4, 1 for
the rate of basic pay is not less than each such claim.
the minimum rate of basic pay for (2) Each voucher, invoice, claim
grade GS–16 under the General Sched- form, or other individual request or de-
ule. mand for property, services, or money
constitutes a separate claim.
Statement means any representation,
(3) A claim shall be considered made
certification, affirmation, document,
to the Authority, recipient, or party
record, or accounting or bookkeeping
when such claim is actually made to an
entry made—
agent, fiscal intermediary, or other en-
(a) With respect to a claim or to ob- tity, including any State or political
tain the approval or payment of a subdivision thereof, acting for or on be-
claim (including relating to eligibility half of the Authority, recipient, or
to make a claim); or party.
(b) With respect to (including relat- (4) Each claim for property, services,
ing to eligibility for)— or money is subject to a civil penalty
(1) A contract with, or a bid or pro- regardless of whether such property,
posal for a contract with; or services, or money is actually delivered
(2) A grant, loan, or benefit from, or paid.
the Authority, or any State, political (5) If the Government has made any
subdivision of a State, or other party, payment (including transferred prop-
if the United States Government pro- erty or provided services) on a claim, a
vides any portion of the money or prop-
1 As adjusted in accordance with the Fed-
erty under such contract or for such
eral Civil Penalties Inflation Adjustment
grant, loan, or benefit, or if the Gov- Act of 1990 (Pub. L. 101–410, 104 Stat. 890), as
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ernment will reimburse such State, po- amended by the Debt Collection Improve-
litical subdivision, or party for any ment Act of 1996 (Pub. L. 104–134, 110 Stat.
portion of the money or property under 1321).
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Environmental Protection Agency § 27.5
person subject to a civil penalty under ble for making a claim under this sec-
paragraph (a)(1) of this section, shall tion on which the Government has
also be subject to an assessment of not made payment (including transferred
more than twice the amount of such property or provided services), an as-
claim or that portion thereof that is sessment may be imposed against any
determined to be in violation of para- such person or jointly and severally
graph (a)(1) of this section. Such as- against any combination of such per-
sessment shall be in lieu of damages sons.
sustained by the Government because [53 FR 15182, Apr. 27, 1988, as amended at 61
of such claim. FR 69366, Dec. 31, 1996; 69 FR 7126, Feb. 13,
(b) Statements. (1) Except as provided 2004; 73 FR 75346, Dec. 11, 2008]
in paragraph (c) of this section, any
person who makes a written statement § 27.4 Investigation.
that— (a) If the investigating official con-
(i) The person knows or has reason to cludes that a subpoena pursuant to the
know— authority conferred by 31 U.S.C. 3804(a)
(A) Asserts a material fact which is is warranted—
false, factitious, or fraudulent; or (1) The subpoena so issued shall no-
(B) Is false, factitious, or fraudulent tify the person to whom it is addressed
because it omits a material fact that of the authority under which the sub-
the person making the statement has a poena is issued and shall identify the
duty to include in such statement; and records or documents sought;
(ii) Contains, or is accompanied by, (2) The investigating official may
an express certification or affirmation designate a person to act on his or her
of the truthfulness and accuracy of the behalf to receive the documents
contents of the statement, shall be sub- sought; and
ject, in addition to any other remedy (3) The person receiving such sub-
that may be prescribed by law, to a poena shall be required to tender to the
civil penalty of not more than the op- investigating official or the person des-
erative effective statutory maximum ignated to receive the documents a cer-
amount, as provided in 40 CFR 19.4, 2 for tification that the documents sought
each such statement. have been produced, or that such docu-
(2) Each written representation, cer- ments are not available and the rea-
tification, or affirmation constitutes a sons therefor, or that such documents,
separate statement.
suitably identified, have been withheld
(3) A statement shall be considered
based upon the assertion of an identi-
made to the Authority when such
fied privilege.
statement is actually made to an
(b) If the investigating official con-
agent, fiscal intermediary, or other en-
cludes that an action under the Pro-
tity, including any State or political
gram Fraud Civil Remedies Act may be
subdivision thereof, acting for or on be-
warranted, the investigating official
half of such Authority.
shall submit a report containing the
(c) No proof of specific intent to de-
findings and conclusions of such inves-
fraud is required to establish liability
tigation to the reviewing official.
under this section.
(c) Nothing in this section shall pre-
(d) In any case in which it is deter-
clude or limit an investigating offi-
mined that more than one person is lia-
cial’s discretion to defer or postpone a
ble for making a claim or statement
report or referral to the reviewing offi-
under this section, each such person
cial to avoid interference with a crimi-
may be held liable for a civil penalty
nal investigation or prosecution.
under this section.
(d) Nothing in this section modifies
(e) In any case in which it is deter-
any responsibility of an investigating
mined that more than one person is lia-
official to report violations of criminal
2 As adjusted in accordance with the Fed-
law to the Attorney General.
eral Civil Penalties Inflation Adjustment § 27.5 Review by the reviewing official.
Act of 1990 (Pub. L. 101–410, 104 Stat. 890), as
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amended by the Debt Collection Improve- (a) If, based on the report of the in-
ment Act of 1996 (Pub. L. 104–134, 110 Stat. vestigating official under § 27.4(b), the
1321). reviewing official determines that
333
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§ 27.6 40 CFR Ch. I (7–1–21 Edition)
contract) that are submitted simulta- and date of service, may be made by—
neously as part of a single request, de- (1) Affidavit of the individual serving
mand, or submission. the complaint by delivery;
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Environmental Protection Agency § 27.10
(2) A United States Postal Service re- (b) Upon assignment of the complaint
turn receipt card acknowledging re- to a presiding officer, the presiding of-
ceipt; or ficer shall promptly serve on defendant
(3) Written acknowledgment of re- in the manner prescribed in § 27.8, a no-
ceipt by the defendant or his or her tice that an initial decision will be
representative. issued under this section.
(c) The presiding officer shall assume
§ 27.9 Answer. the facts alleged in the complaint to be
(a) The defendant may request a true, and, if such facts establish liabil-
hearing by filing an answer with the ity under § 27.3, the presiding officer
reviewing official within 30 days of shall issue an initial decision imposing
service of the complaint. An answer the maximum amount of penalties and
shall be deemed to be a request for assessments allowed under the statute.
hearing. (d) Except as otherwise provided in
(b) In the answer, the defendant— this section, by failing to file a timely
(1) Shall admit or deny each of the answer, the defendant waives any right
allegations of liability made in the to further review of the penalties and
complaint; assessments imposed under paragraph
(2) Shall state any defense on which (c) of this section, and the initial deci-
the defendant intends to rely; sion shall become final and binding
(3) May state any reasons why the de- upon the parties 30 days after it is
fendant contends that the penalties issued.
and assessments should be less than (e) If, before such an initial decision
the statutory maximum; and becomes final, the defendant files a
(4) Shall state the name, address, and motion seeking to reopen on the
telephone number of the person author- grounds that extraordinary cir-
ized by the defendant to act as defend- cumstances prevented the defendant
ant’s representative, if any. from filing an answer, the initial deci-
(c) If the defendant is unable to file sion shall be stayed pending the pre-
an answer meeting the requirements of siding officer’s decision on the motion.
paragraph (b) of this section within the (f) If, on such motion, the defendant
time provided, the defendant may, be- can demonstrate extraordinary cir-
fore the expiration of 30 days from cumstances excusing the failure to file
service of the complaint, file with the
a timely answer, the presiding officer
reviewing official a general answer de-
shall withdraw the initial decision in
nying liability and requesting a hear-
paragraph (c) of this section, if such a
ing, and a request for an extension of
decision has been issued, and shall
time within which to file an answer
grant the defendant an opportunity to
meeting requirements of paragraph (b)
of this section. The reviewing official answer the complaint.
shall file promptly with the hearing (g) A decision of the presiding officer
clerk the complaint, the general an- denying a defendant’s motion under
swer denying liability, and the request paragraph (e) of this section, is not
for an extension of time as provided in subject to reconsideration under § 27.38.
§ 27.11. Upon assignment to a presiding (h) The defendant may appeal to the
officer, the presiding officer may, for Environmental Appeals Board the deci-
good cause shown, grant the defendant sion denying a motion to reopen by fil-
up to 30 additional days within which ing a notice of appeal within 15 days
to file an answer meeting the require- after the presiding officer denies the
ments of paragraph (b) of this section. section. The timely filing of a notice of
appeal shall stay the initial decision
§ 27.10 Default upon failure to file an the Environmental Appeals Board de-
answer. cides the issue.
(a) If the defendant does not file an (i) If the defendant files a timely no-
answer within the time prescribed in tice of appeal, the presiding officer
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§ 27.9(a), the reviewing official may file shall forward the record of the pro-
the complaint with the hearing clerk ceeding to the Environmental Appeals
as provided in § 27.11. Board.
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§ 27.11 40 CFR Ch. I (7–1–21 Edition)
(j) The Environmental Appeals Board (3) The matters of fact and law to be
shall decide expeditiously whether ex- asserted;
traordinary circumstances excuse the (4) A description of the procedures for
defendant’s failure to file a timely an- the conduct of the hearing;
swer based solely on the record before (5) The name, address, and telephone
the presiding officer. number of the representative of the
(k) If the Environmental Appeals Government and of the defendant, if
Board decides that extraordinary cir- any; and
cumstances excused the defendant’s (6) Such other matters as the pre-
failure to file a timely answer, the En- siding officer deems appropriate.
vironmental Appeals Board shall re- (c) The presiding officer shall issue
mand the case to the presiding officer the notice of hearing at least twenty
with instructions to grant the defend- (20) days prior to the date set for the
ant an opportunity to answer. hearing.
(l) If the Environmental Appeals
§ 27.13 Parties to the hearing.
Board decides that the defendant’s fail-
ure to file a timely answer is not ex- (a) The parties to the hearing shall
cused, the Environmental Appeals be the defendant and the Authority.
Board shall reinstate the initial deci- (b) Pursuant to 31 U.S.C. 3730(c)(5), a
sion of the presiding officer, which private plaintiff under the False
shall become final and binding upon Claims Act may participate in these
the parties 30 days after the Environ- proceedings to the extent authorized
mental Appeals Board issues such deci- by the provisions of that Act.
sion.
§ 27.14 Separation of functions.
[53 FR 15182, Apr. 27, 1988, as amended at 57 (a) The investigating official, the re-
FR 5326, Feb. 13, 1992] viewing official, and any employee or
agent of the Authority who takes part
§ 27.11 Referral of complaint and an-
swer to the presiding officer. in investigating, preparing, or pre-
senting a particular case, may not, in
(a) Upon receipt of an answer, the re- such case or a factually related case—
viewing official shall file the complaint (1) Participate in the hearing as the
and answer with the hearing clerk. presiding officer;
(b) The hearing clerk shall forward (2) Participate or advise in the initial
the complaint and answer to the Chief decision or the review of the initial de-
administrative law judge who shall as- cision by the Environmental Appeals
sign himself or herself or another ad- Board, except as a witness or rep-
ministrative law judge as presiding of- resentative in public proceedings; or
ficer. The presiding officer shall then (3) Make the collection of penalties
obtain the complaint and answer from and assessments under 31 U.S.C. 3806.
the Chief administrative law judge and (b) Neither the presiding officer nor
notify the parties of his or her assign- the members of the Environmental Ap-
ment. peals Board shall be responsible to, or
subject to, the supervision or direction
§ 27.12 Notice of hearing. of the investigating official or the re-
(a) When the presiding officer obtains viewing official.
the complaint and answer, the pre- (c) Except as provided in paragraph
siding officer shall promptly serve a (a) of this section, the representative
notice of hearing upon the defendant in for the Government may be employed
the manner prescribed by § 27.8. At the anywhere in the authority, including
same time, the presiding officer shall in the offices of either the inves-
send a copy of such notice to the rep- tigating official or the reviewing offi-
resentative for the Government. cial.
(b) Such notice shall include— [53 FR 15182, Apr. 27, 1988, as amended at 57
(1) The date, time and place, and the FR 5326, Feb. 13, 1992]
nature of the hearing;
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Environmental Protection Agency § 27.18
communicate in any way with the pre- the matter only as part of its review of
siding officer on any matter at issue in the initial decision upon appeal, if any.
a case, unless on notice and oppor- [53 FR 15182, Apr. 27, 1988, as amended at 57
tunity for all parties to participate. FR 5326, Feb. 13, 1992]
This provision does not prohibit a per-
son or party from inquiring about the § 27.17 Rights of parties.
status of a case or asking routine ques- Except as otherwise limited by this
tion concerning administrative func- part, all parties may—
tions or procedures. (a) Be accompanied, represented, and
advised by a representative;
§ 27.16 Disqualification of the review- (b) Participate in any conference
ing official or presiding officer. held by the presiding officer;
(a) A reviewing official or presiding (c) Conduct discovery;
officer in a particular case may dis- (d) Agree to stipulations of fact or
qualify himself or herself at any time. law, which shall be made part of the
record;
(b) A party may file a motion for dis-
(e) Present evidence relevant to the
qualification of a reviewing official or
issues at the hearing;
presiding officer with the hearing (f) Present and cross-examine wit-
clerk. Such motion shall be accom- nesses;
panied by an affidavit alleging personal (g) Present oral arguments at the
bias or other reason for disqualifica- hearing as permitted by the presiding
tion. officer; and
(c) Such motion and affidavit shall be (h) Submit written briefs and pro-
filed within 15 days of the party’s dis- posed findings of fact and conclusions
covery of reasons requiring disquali- of law after the hearing.
fication, or such objections shall be
deemed waived. § 27.18 Authority of the presiding offi-
cer.
(d) Such affidavit shall state specific
facts that support the party’s belief (a) The presiding officer shall con-
that personal bias or other reason for duct a fair and impartial hearing, avoid
disqualification exists and the time delay, maintain order, and assure that
and circumstances of the party’s dis- a record of the proceeding is made.
(b) The presiding officer has the au-
covery of such facts. It shall be accom-
thority to—
panied by a certificate of the rep-
(1) Set and change the date, time,
resentative of record that it is made in and place of the hearing upon reason-
good faith. able notice to the parties;
(e) Upon the filing of such a motion (2) Continue or recess the hearing in
and affidavit, the presiding officer whole or in part for a reasonable period
shall proceed no further in the case of time;
until he or she resolves the matter of (3) Hold conferences to identify or
disqualification in accordance with simplify the issues, or to consider
paragraph (f) of this section. other matters that may aid in the ex-
(f)(1) If the presiding officer deter- peditious disposition of the proceeding;
mines that the reviewing official is dis- (4) Administer oaths and affirma-
qualified because the reviewing official tions;
could not have made an impartial de- (5) Issue subpoenas requiring the at-
termination pursuant to § 27.5(a), the tendance of witnesses and the produc-
presiding officer shall dismiss the com- tion of documents at depositions or at
plaint without prejudice. hearings;
(6) Rule on motions and other proce-
(2) If the presiding officer disqualifies
dural matters;
himself or herself, the case shall be re-
(7) Regulate the scope and timing of
assigned promptly to another presiding
discovery;
officer. (8) Regulate the course of the hearing
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(3) If the presiding officer denies a and the conduct of representatives and
motion to disqualify, the Environ- parties;
mental Appeals Board may determine (9) Examine witnesses;
337
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§ 27.19 40 CFR Ch. I (7–1–21 Edition)
(10) Receive, rule on, exclude, or upon by the parties or ordered by the
limit evidence; presiding officer at a prehearing con-
(11) Upon motion of a party, take of- ference.
ficial notice of facts;
(12) Upon motion of a party, decide § 27.20 Disclosure of documents.
cases, in whole or in part, by summary (a) Upon written request to the re-
judgment where there is no disputed viewing official, the defendant may re-
issue of material fact; view any relevant and material docu-
(13) Conduct any conference, argu- ments, transcripts, records, and other
ment, or hearing on motions in person materials that relate to the allegations
or by telephone; and set out in the complaint and upon
(14) Exercise such other authority as which the findings and conclusions of
is necessary to carry out the respon- the investigating official under § 27.4(b)
sibilities of the presiding officer under are based, unless such documents are
this part. subject to a privilege under Federal
(c) The presiding officer does not law. Upon payment of fees for duplica-
have the authority to find Federal tion, the defendant may obtain copies
statutes or regulations invalid. of such documents.
(b) Upon written request to the re-
§ 27.19 Prehearing conferences. viewing official, the defendant also
(a) The presiding officer may sched- may obtain a copy of all exculpatory
ule prehearing conferences as appro- information in the possession of the re-
priate. viewing official or investigating offi-
(b) Upon the motion of any party, the cial relating to the allegations in the
presiding officer shall schedule at least complaint, even if it is contained in a
one prehearing conference at a reason- document that would otherwise be
able time in advance of the hearing. privileged. If the document would oth-
(c) The presiding officer may use pre- erwise be privileged, only that portion
hearing conferences to discuss the fol- containing exculpatory information
lowing: must be disclosed.
(1) Simplification of the issues; (c) The notice sent to the Attorney
(2) The necessity or desirability of General from the reviewing official as
amendments to the pleadings, includ- described in § 27.5 is not discoverable
ing the need for a more definite state- under any circumstances.
ment; (d) The defendant may file a motion
(3) Stipulations and admissions of to compel disclosure of the documents
fact as to the contents and authen- subject to the provisions of this sec-
ticity of documents; tion. Such a motion may only be filed
(4) Whether the parties can agree to following the filing of an answer pursu-
submission of the case on a stipulated ant to § 27.9.
record;
(5) Whether a party chooses to waive § 27.21 Discovery.
appearance at an oral hearing and to (a) The following types of discovery
submit only documentary evidence are authorized:
(subject to the objection of other par- (1) Requests for production of docu-
ties) and written argument; ments for inspection and copying;
(6) Limitation of the number of wit- (2) Requests for admissions of the au-
nesses; thenticity of any relevant document or
(7) Scheduling dates for the exchange of the truth of any relevant fact;
of witness lists and of proposed exhib- (3) Written interrogatories; and
its; (4) Depositions.
(8) Discovery; (b) For the purpose of this section
(9) The time and place for the hear- and §§ 27.22 and 27.23, the term docu-
ing; and ments includes information, documents,
(10) Such other matters as may tend reports, answers, records, accounts, pa-
to expedite the fair and just disposition pers, and other data and documentary
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Environmental Protection Agency § 27.23
(c) Unless mutually agreed to by the dered by the presiding officer, the par-
parties, discovery is available only as ties shall exchange witness lists, copies
ordered by the presiding officer. The of prior statements of proposed wit-
presiding officer shall regulate the tim- nesses, and copies of proposed hearing
ing of discovery. exhibits, including copies of any writ-
(d) Motions for discovery. (1) A party ten statements that the party intends
seeking discovery may file a motion to offer in lieu of live testimony in ac-
which shall be accompanied by a copy cordance with § 27.33(b). At the time
of the requested discovery, or in the the above documents are exchanged,
case of depositions, a summary of the any party that intends to rely on the
scope of the proposed deposition. transcript of deposition testimony in
(2) Within ten days of service, a party lieu of live testimony at the hearing, if
may file an opposition to the motion permitted by the presiding officer,
and/or a motion for protective order as shall provide each party with a copy of
provided in § 27.24. the specific pages of the transcript it
(3) The presiding officer may grant a intends to introduce into evidence.
motion for discovery only if he finds (b) If a party objects, the presiding
that the discovery sought— officer shall not admit into evidence
(i) Is necessary for the expeditious, the testimony of any witness whose
fair, and reasonable consideration of name does not appear on the witness
the issues; list or any exhibit not provided to the
(ii) Is not unduly costly or burden- opposing party as provided above un-
some; less the presiding officer finds good
(iii) Will not unduly delay the pro- cause for the failure or that there is
ceeding; and not prejudice to the objecting party.
(iv) Does not seek privileged informa- (c) Unless another party objects
tion. within the time set by the presiding of-
(4) The burden of showing that dis- ficer, documents exchanged in accord-
covery should be allowed is on the ance with paragraph (a) of this section
party seeking discovery. shall be deemed to be authentic for the
(5) The presiding officer may grant purpose of admissibility at the hearing.
discovery subject to a protective order
under § 27.24. § 27.23 Subpoenas for attendance at
(e) Depositions. (1) If a motion for dep- hearing.
osition is granted, the presiding officer (a) A party wishing to procure the
shall issue a subpoena for the depo- appearance and testimony of any indi-
nent, which may require the deponent vidual at the hearing may request that
to produce documents. The subpoena the presiding officer issue a subpoena.
shall specify the time and place at (b) A subpoena requiring the attend-
which the deposition will be held. ance and testimony of an individual
(2) The party seeking to depose shall may also require the individual to
serve the subpoena in the manner pre- produce documents at the hearing.
scribed in § 27.8. (c) A party seeking a subpoena shall
(3) The deponent may file a motion to file a written request therefor not less
quash the subpoena or a motion for a than 15 days before the date fixed for
protective order within ten days of the hearing unless otherwise allowed
service. by the presiding officer for good cause
(4) The party seeking to depose shall shown. Such request shall specify any
provide for the taking of a verbatim documents to be produced and shall
transcript of the deposition, which it designate the witnesses and describe
shall make available to all other par- the address and location thereof with
ties for inspection and copying. sufficient particularity to permit such
(f) Each party shall bear its own witnesses to be found.
costs of discovery. (d) The subpoena shall specify the
time and place at which the witness is
§ 27.22 Exchange of witness lists, state- to appear and any documents the wit-
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§ 27.24 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 27.30
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§ 27.31 40 CFR Ch. I (7–1–21 Edition)
factors by a preponderance of the evi- (8) Whether the defendant has en-
dence. gaged in a pattern of the same or simi-
(d) The hearing shall be open to the lar misconduct;
public unless otherwise ordered by the (9) Whether the defendant attempted
presiding officer for good cause shown. to conceal the misconduct;
(10) The degree to which the defend-
§ 27.31 Determining the amount of ant has involved others in the mis-
penalties and assessments. conduct or in concealing it;
(11) Where the misconduct of employ-
(a) In determining an appropriate
ees or agents is imputed to the defend-
amount of civil penalties and assess- ant, the extent to which the defend-
ments, the presiding officer and the ant’s practices fostered or attempted
Environmental Appeals Board, upon to preclude such misconduct;
appeal, should evaluate any cir- (12) Whether the defendant cooper-
cumstances that mitigate or aggravate ated in or obstructed an investigation
the violation and should articulate in of the misconduct;
their opinions the reasons that support (13) Whether the defendant assisted
the penalties and assessments they im- in identifying and prosecuting other
pose. Because of the intangible costs of wrongdoers;
fraud, the expense of investigating (14) The complexity of the program
such conduct, and the need to deter or transaction, and the degree of the
others who might be similarly tempt- defendant’s sophistication with respect
ed, ordinarily double damages and a to it, including the extent of the de-
significant civil penalty should be im- fendant’s prior participation in the
posed. program or in similar transactions;
(b) Although not exhaustive, the fol- (15) Whether the defendant has been
lowing factors are among those that found, in any criminal, civil, or admin-
may influence the presiding officer and istrative proceeding to have engaged in
the Environmental Appeals Board in similar misconduct or to have dealt
determining the amount of penalties dishonestly with the Government of
and assessments to impose with respect the United States or of a State, di-
to the misconduct (i.e., the false, ficti- rectly or indirectly; and
tious, or fraudulent claims or state- (16) The need to deter the defendant
ments) charged in the complaint: and others from engaging in the same
(1) The number of false, fictitious, or or similar misconduct.
fraudulent claims or statements; (c) Nothing in this section shall be
construed to limit the presiding officer
(2) The time period over which such
or the Environmental Appeals Board
claims or statements were made;
from considering any other factors
(3) The degree of the defendant’s cul- that in any given case may mitigate or
pability with respect to the mis- aggravate the offense for which pen-
conduct; alties and assessments are imposed.
(4) The amount of money or the value
of the property, services, or benefit [53 FR 15182, Apr. 27, 1988, as amended at 57
FR 5327, Feb. 13, 1992]
falsely claimed;
(5) The value of the Government’s ac- § 27.32 Location of hearing.
tual loss as a result of the misconduct,
(a) The hearing may be held—
including foreseeable consequential (1) In any judicial district of the
damages and the costs of investigation; United States in which the defendant
(6) The relationship of the amount resides or transacts business;
imposed as civil penalties to the (2) In any judicial district of the
amount of the Government’s loss; United States in which the claim or
(7) The potential or actual impact of statement in issue was made; or
the misconduct upon national defense, (3) In such other place as may be
public health or safety, or public con- agreed upon by the defendant and the
fidence in the management of Govern- presiding officer.
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ment programs and operations, includ- (b) Each party shall have the oppor-
ing particularly the impact on the in- tunity to present argument with re-
tended beneficiaries of such programs; spect to the location of the hearing.
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Environmental Protection Agency § 27.35
(c) The hearing shall be held at the (2) In the case of a party that is not
place and at the time ordered by the an individual, an officer or empoyee of
presiding officer. the party appearing for the entity pro
se or designated by the party’s rep-
§ 27.33 Witnesses. resentative; or
(a) Except as provided in paragraph (3) an individual whose presence is
(b) of this section, testimony at the shown by a party to be essential to the
hearing shall be given orally by wit- presentation of its case, including an
nesses under oath or affirmation. individual employed by the Govern-
(b) At the discretion of the presiding ment engaged in assisting the rep-
officer, testimony may be admitted in resentative for the Government.
the form of a written statement or dep-
§ 27.34 Evidence.
osition. Any such written statement
must be provided to all other parties (a) The presiding officer shall deter-
along with the last known address of mine the admissibility of evidence.
such witness, in a manner which allows (b) Except as provided in this part,
sufficient time for other parties to sub- the presiding officer shall not be bound
poena such witness for cross-examina- by the Federal Rules of Evidence. How-
tion at the hearing. Prior written ever, the presiding officer may apply
statements of witnesses proposed to the Federal Rules of Evidence when ap-
testify at the hearing and deposition propriate, e.g., to exclude unreliable
transcripts shall be exchanged as pro- evidence.
vided in § 27.22(a). (c) The presiding officer shall exclude
(c) The presiding officer shall exer- irrelevant and immaterial evidence.
cise reasonable control over the mode (d) Although relevant, evidence may
and order of interrogating witnesses be excluded if its probative value is
and presenting evidence so as to: substantially outweighed by the danger
(1) Make the interrogation and pres- of unfair prejudice, confusion of the
entation effective for the ascertain- issues, or by considerations of undue
ment of the truth, delay or needless presentation of cumu-
(2) Avoid needless consumption of lative evidence.
time, and (e) Although relevant, evidence may
(3) Protect witnesses from harass- be excluded if it is privileged under
ment or undue embarrassment. Federal law.
(d) The presiding officer shall permit (f) Evidence concerning offers of com-
the parties to conduct such cross-ex- promise or settlement shall be inad-
amination as may be required for a full missible to the extent provided in Rule
and true disclosure of the facts. 408 of the Federal Rules of Evidence.
(e) At the discretion of the presiding (g) The presiding officer shall permit
officer, a witness may be cross-exam- the parties to introduce rebuttal wit-
ined on matters relevant to the pro- nesses and evidence.
ceeding without regard to the scope of (h) All documents and other evidence
his or her direct examination. To the offered or taken for the record shall be
extent permitted by the presiding offi- open to examination by all parties, un-
cer, cross-examination on matters out- less otherwise ordered by the presiding
side the scope of direct examination officer pursuant to § 27.24.
shall be conducted in the manner of di-
rect examination and may proceed by § 27.35 The record.
leading questions only if the witness is (a) The hearing will be recorded and
a hostile witness, an adverse party, or transcribed. Transcripts may be ob-
a witness identified with an adverse tained following the hearing from the
party. hearing clerk at a cost not to exceed
(f) Upon motion of any party, the the actual cost of duplication.
presiding officer shall order witnesses (b) The transcript of testimony, ex-
excluded so that they cannot hear the hibits and other evidence admitted at
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testimony of other witnesses. This rule the hearing, and all papers and re-
does not authorize exclusion of— quests filed in the proceeding con-
(1) A party who is an individual; stitute the record for the decision by
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§ 27.36 40 CFR Ch. I (7–1–21 Edition)
the presiding officer and the Environ- shall notify the parties of the reason
mental Appeals Board. for the delay and shall set a new dead-
(c) The record may be inspected and line.
copied (upon payment of a reasonable (d) Unless the initial decision of the
fee) by anyone, unless otherwise or- presiding officer is timely appealed to
dered by the presiding officer pursuant the Environmental Appeals Board, or a
to § 27.24. motion for reconsideration of the ini-
[53 FR 15182, Apr. 27, 1988, as amended at 57 tial decision is timely filed, the initial
FR 5327, Feb. 13, 1992] decision shall constitute the final deci-
sion of the Environmental Appeals
§ 27.36 Post-hearing briefs. Board and shall be final and binding on
The presiding officer may require the the parties 30 days after it is issued by
parties to file post-hearing briefs. In the presiding officer.
any event, any party may file a post- [53 FR 15182, Apr. 27, 1988, as amended at 57
hearing brief. The presiding officer FR 5327, Feb. 13, 1992]
shall fix the time for filing such briefs,
not to exceed 60 days from the date the § 27.38 Reconsideration of initial deci-
parties receive the transcript of the sion.
hearing or, if applicable, the stipulated (a) Except as provided in paragraph
record. Such briefs may be accom- (d) of this section, any party may file a
panied by proposed findings of fact and motion for reconsideration of the ini-
conclusions of law. The presiding offi- tial decision within 20 days of receipt
cer may permit the parties to file re- of the initial decision. If service was
sponsive briefs. made by mail, receipt will be presumed
§ 27.37 Initial decision. to be five days from the date of mailing
in the absence of contrary proof.
(a) The presiding officer shall issue (b) Every such motion must set forth
an initial decision based only on the
the matters claimed to have been erro-
record. The decision shall contain find-
neously decided and the nature of the
ings of fact, conclusions of law, and the
alleged errors. Such motion shall be
amount of any penalties and assess-
accompanied by a supporting brief.
ments imposed.
(b) The findings of fact shall include (c) Responses to such motions shall
a finding on each of the following be allowed only upon request of the
issues: presiding officer.
(1) Whether the claims or statements (d) No party may file a motion for re-
identified in the complaint, or any por- consideration of an initial decision
tions thereof, violate § 27.3; that has been revised in response to a
(2) If the person is liable for penalties previous motion for reconsideration.
or assessments, the appropriate (e) The presiding officer may dispose
amount of any such penalties or assess- of a motion for reconsideration by de-
ments considering any mitigating or nying it or by issuing a revised intial
aggravating factors that he or she finds decision.
in the case, such as those described in (f) If the presiding officer denies a
§ 27.31. motion for reconsideration, the initial
(c) The presiding officer shall decision shall constitute the final deci-
promptly serve the initial decision on sion of the Environmental Appeals
all parties within 90 days after the Board and shall be final and binding on
time for submission of post-hearing the parties 30 days after the presiding
briefs and responsive briefs (if per- officer denies the motion, unless the
mitted) has expired. The presiding offi- initial decision is timely appealed to
cer shall at the same time serve all the Environmental Appeals Board in
parties with a statement describing the accordance with § 27.39.
right of any defendant determined to (g) If the presiding officer issued a re-
be liable for a civil penalty or assess- vised initial decision, that decision
ment to file a motion for reconsider- shall constitute the final decision of
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ation or a notice of appeal. If the pre- the Environmental Appeals Board and
siding officer fails to meet the deadline shall be final and binding on the par-
contained in this paragraph, he or she ties 30 days after it is issued, unless it
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Environmental Protection Agency § 27.40
(g) There is no right to appeal any in- statement, the Environmental Appeals
terlocutory ruling by the presiding of- Board shall stay the process imme-
ficer. diately. The Environmental Appeals
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§ 27.41 40 CFR Ch. I (7–1–21 Edition)
346
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Environmental Protection Agency § 29.2
directed to the Administrator, rather 29.12 How may a State simplify, consoli-
than the Environmental Appeals date, or substitute federally required
Board, will not be considered. This del- State plans?
egation of authority to the Environ- 29.13 May the Administrator waive any pro-
mental Appeals Board does not pre- vision of these regulations?
clude the Environmental Appeals AUTHORITY: E.O. 12372, July 14, 1982 (47 FR
Board from referring an appeal or mo- 30959), as amended Apr. 8, 1983 (48 FR 15887);
tion filed under this part to the Admin- sec. 401 of the Intergovernmental Coopera-
istrator for decision when the Environ- tion Act of 1968 as amended (31 U.S.C. 6506);
mental Appeals Board, in its sec. 204 of the Demonstration Cities and Met-
descretion, deems it appropriate to do ropolitan Development Act of 1966, as
so. When an appeal or motion is re- amended (42 U.S.C. 3334).
ferred to the Administrator, all parties SOURCE: 48 FR 29300, June 24, 1983, unless
shall be so notified and the rules in otherwise noted.
this part referring to the Environ-
mental Appeals Board shall be inter- § 29.1 What is the purpose of these reg-
preted as referring to the Adminis- ulations?
trator. If a case or motion is referred
(a) The regulations in this part im-
to the Administrator by the Environ-
plement Executive Order 12372, ‘‘Inter-
mental Appeals Board, the Adminis-
trator may consult with any EPA em- governmental Review of Federal Pro-
ployee concerning the matter, provided grams,’’ issued July 14, 1982, and
such consultation does not violate the amended, on April 8, 1983. These regula-
ex parte contacts restrictions set forth tions also implement applicable provi-
in §§ 27.14 and 27.15 of this part. sions of section 401 of the Intergovern-
mental Cooperation Act of 1968, as
[57 FR 5328, Feb. 13, 1992]
amended and section 204 of the Dem-
onstration Cities and Metropolitan De-
PART 29—INTERGOVERNMENTAL velopment Act of 1966, as amended.
REVIEW OF ENVIRONMENTAL (b) These regulations are intended to
PROTECTION AGENCY PRO- foster an intergovernmental partner-
GRAMS AND ACTIVITIES ship and a strengthened federalism by
relying on State processes and on
Sec. State, areawide, regional and local co-
29.1 What is the purpose of these regula-
tions? ordination for review of proposed Fed-
29.2 What definitions apply to these regula- eral financial assistance and direct
tions? Federal development.
29.3 What programs and activities of the (c) These regulations are intended to
Environmental Protection Agency are aid the internal management of the
subject to these regulations?
29.4 What are the Administrator’s general Environmental Protection Agency
responsibilities under the Order? (EPA) and are not intended to create
29.5 What is the Administrator’s obligation any right or benefit enforceable at law
with respect to Federal interagency co- by a party against EPA or its officers.
ordination?
29.6 What procedures apply to the selection § 29.2 What definitions apply to these
of programs and activities under these regulations?
regulations?
29.7 How does the Administrator commu- Administrator means the Adminis-
nicate with State and local officials con- trator of the U.S. Environmental Pro-
cerning EPA programs and activities? tection Agency or an official or em-
29.8 How does the Administrator provide
States an opportunity to comment on
ployee of the Agency acting for the Ad-
proposed Federal financial assistance ministrator under a delegation of au-
and direct Federal development? thority.
29.9 How does the Administrator receive Agency means the U.S. Environ-
and respond to comments? mental Protection Agency (EPA).
29.10 How does the Administrator make ef-
Order means Executive Order 12372,
forts to accommodate intergovernmental
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§ 29.3 40 CFR Ch. I (7–1–21 Edition)
States means any of the 50 States, the (6) Seeks the coordination of views of
District of Columbia, the Common- affected State and local elected offi-
wealth of Puerto Rico, the Common- cials in one State with those of another
wealth of the Northern Mariana Is- State when proposed Federal financial
lands, Guam, American Samoa, the assistance or direct Federal develop-
U.S. Virgin Islands, or the Trust Terri- ment has an impact on interstate met-
tory of the Pacific Islands. ropolitan urban centers or other inter-
state areas; and
§ 29.3 What programs and activities of (7) Supports State and local govern-
the Environmental Protection
Agency are subject to these regula- ments by discouraging the reauthoriza-
tions? tion or creation of any planning orga-
nization which is federally-funded,
The Administrator publishes in the which has a limited purpose, and which
FEDERAL REGISTER a list of the EPA is not adequately representative of, or
programs and activities that are sub- accountable to, State or local elected
ject to these regulations and identifies officials,
which of these are subject to the re-
quirements of section 204 of the Dem- § 29.5 What is the Administrator’s obli-
onstration Cities and Metropolitan De- gation with respect to Federal
velopment Act. interagency coordination?
§ 29.4 What are the Administrator’s The Administrator, to the extent
general responsibilities under the practicable, consults with and seeks
Order? advice from all other substantially af-
(a) The Administrator provides op- fected Federal departments and agen-
portunities for consultation by elected cies in an effort to assure full coordina-
officials of those State and local gov- tion between such agencies and EPA
ernments that would provide the non- regarding programs and activities cov-
Federal funds for, or that would be di- ered under these regulations.
rectly affected by, proposed Federal fi-
§ 29.6 What procedures apply to the se-
nancial assistance from, or direct Fed- lection of programs and activities
eral development by, the EPA. under these regulations?
(b) If a State adopts a process under
the Order to review and coordinate pro- (a) A State may select any program
posed Federal financial assistance and or activity published in the FEDERAL
direct Federal development, the Ad- REGISTER in accordance with § 29.3 of
ministrator to the extent permitted by this part for intergovernmental review
law: under these regulations. Each State,
(1) Uses the State process to deter- before selecting programs and activi-
mine official views of State and local ties, shall consult with local elected of-
elected officials; ficials.
(2) Communicates with State and (b) Each State that adopts a process
local elected officials as early in a pro- shall notify the Administrator of EPA
gram planning cycle as is reasonably programs and activities selected for
feasible to explain specific plans and that process.
actions; (c) A State may notify the Adminis-
(3) Makes efforts to accommodate trator of changes in its selections at
State and local elected officials’ con- any time. For each change, the State
cerns with proposed Federal financial shall submit an assurance to the Ad-
assistance and direct Federal develop- ministrator that the State has con-
ment that are communicated through sulted with local elected officials re-
the State process; garding the change. EPA may establish
(4) Allows the States to simplify and deadlines by which States are required
consolidate existing federally required to inform the Administrator of changes
State plan submissions; in their program selections.
(5) Where State planning and budg- (d) The Administrator uses a State’s
eting systems are sufficient and where process as soon as feasible, depending
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Environmental Protection Agency § 29.9
349
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§ 29.10 40 CFR Ch. I (7–1–21 Edition)
lect an EPA program or activity; Liability Act 42 U.S.C. 9604, 9606, 9622, Execu-
(4) Responding in accordance with tive Order 12580, section 2(j)(2); Federal In-
§ 29.10 of this part to a recommendation secticide, Fungicide, and Rodenticide Act 7
350
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Environmental Protection Agency § 31.1
U.S.C. 136; Resource Conservation and Re- Business Resources Information Sheet
covery Act 42 U.S.C. 6908, 6912, 6927, 6928, 6934, to help small businesses understand
6971, 6973, 6991, 6992; Safe Drinking Water Act and comply with federal and state envi-
42 U.S.C. 300; Toxic Substances Control Act
15 U.S.C. 2610; 5 U.S.C. 301; and Reorganiza-
ronmental laws.
tion Plan No. 3 of 1970, 84 Stat. 2086. (d)(1) EPA inspectors shall document
observations, and, as appropriate, take
SOURCE: 85 FR 12226, Mar. 2, 2020, unless
otherwise noted.
environmental or other samples and
take or obtain photographs and copies
§ 31.1 Procedures conducted by EPA of documents related to the purpose of
for on-site civil inspections. the inspection, and employ other rea-
(a) All on-site civil inspections by sonable investigative techniques.
EPA inspectors shall be conducted in (2) Where possible, EPA inspectors
accordance with this part. For pur- shall interview the owner, operator,
poses of this part, all references agent or employee of an establishment.
throughout to ‘‘inspection’’ or ‘‘in- Reasonable investigative techniques
spections’’ refer to on-site civil inspec- include, but are not limited to, the use
tions; this part does not apply to crimi- of monitoring devices/equipment to
nal inspections or investigations of en- measure releases to the environment.
vironmental crimes. (e) EPA inspectors shall take reason-
(b) EPA inspections shall take place able precautions to ensure actions con-
at such times and in such places as ap- ducted during inspections will not
propriate. cause hazardous situations, and, where
(c) At the beginning of an inspection, appropriate, wear and use appropriate
EPA inspectors shall present their cre- protective clothing and equipment.
dentials to the owner, operator, or (f)(1) At the conclusion of an inspec-
agent in charge at the facility or site, tion, EPA inspectors shall offer a clos-
if available. EPA inspectors shall gen- ing conference, where practicable, to
erally explain the nature and purpose confer with the facility/site representa-
of the inspection; offer an opening con- tive and informally advise them of any
ference; confirm any safety hazards; observations, potential deficiencies and
and indicate generally the scope of the concerns discovered by the inspection,
inspection and the records which they as applicable.
wish to review. However, such designa- (2) During such conference, the facil-
tion of records shall not preclude ac- ity/site representative shall be afforded
cess to additional records. an initial opportunity to bring to the
(1) During the opening conference, attention of the EPA inspector any
EPA inspectors shall, where applicable pertinent information regarding the
and practicable, offer facility personnel potential concerns identified.
the opportunity to obtain split samples (g) After an inspection, EPA shall
or to collect duplicate samples. prepare an inspection report and share
(2) If the facility is a small business, it with the facility. The content and
EPA inspectors shall offer a Small format of the report may vary.
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SUBCHAPTER B—GRANTS AND OTHER FEDERAL ASSISTANCE
352
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Environmental Protection Agency § 33.103
gated the authority to execute finan- usage by entities procuring in the cat-
cial assistance agreements on behalf of egories of construction, equipment,
EPA. services and supplies.
353
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§ 33.103 40 CFR Ch. I (7–1–21 Edition)
Equipment means items procured (3) In the case of the BCRLF Pro-
under a financial assistance agreement gram, is a project that has been funded
as defined by 2 CFR 200.33. with EPA financial assistance.
Fair share objective means an objec- Insular area means the Common-
tive expressing the percentage of MBE wealth of Puerto Rico or any territory
or WBE utilization expected absent the or possession of the United States.
effects of discrimination. Joint venture means an association of
Financial assistance agreement means a DBE firm and one or more other
grants or cooperative agreements firms to carry out a single, for-profit
awarded by EPA. The term includes business enterprise, for which the par-
ties combine their property, capital, ef-
grants or cooperative agreements used
forts, skills and knowledge, and in
to capitalize revolving loan funds, in-
which the DBE is responsible for a dis-
cluding, but not limited to, the Clean
tinct, clearly defined portion of the
Water State Revolving Loan Fund
work of the contract and whose share
(CWSRF) Program under Title VI of in the capital contribution, control,
the Clean Water Act, as amended, 33 management, risks, and profits of the
U.S.C. 1381 et seq., the Drinking Water joint venture are commensurate with
State Revolving Fund (DWSRF) Pro- its ownership interest.
gram under section 1452 of the Safe Labor surplus area firm (LSAF) means
Drinking Water Act, 42 U.S.C. 300j–12, a concern that together with its first-
and the Brownfields Cleanup Revolving tier subcontractors will perform sub-
Loan Fund (BCRLF) Program under stantially in labor surplus areas (as
section 104 of the Comprehensive Envi- identified by the Department of Labor
ronmental Response, Compensation in accordance with 20 CFR part 654).
and Liability Act, 42 U.S.C. 9604. Performance is substantially in labor
Good faith efforts means the race and/ surplus areas if the costs incurred
or gender neutral measures described under the contract on account of man-
in subpart C of this part. ufacturing, production or performance
Historically black college or university of appropriate services in labor surplus
(HBCU) means an institution deter- areas exceed 50 percent of the contract
mined by the Secretary of Education to price.
meet the requirements of 34 CFR part Minority business enterprise (MBE)
608. means a Disadvantaged Business En-
HUBZone means a historically under- terprise (DBE) other than a Small
utilized business zone, which is an area Business Enterprise (SBE), a Labor
located within one or more qualified Surplus Area Firm (LSAF), a Small
census tracts, qualified metropolitan Business in Rural Areas (SBRA), or a
counties, or lands within the external Women’s Business Enterprise (WBE).
boundaries of an Indian reservation. Minority institution means an accred-
HUBZone small business concern ited college or university whose enroll-
ment of a single designated group or a
means a small business concern that
combination of designated groups (as
appears on the List of Qualified
defined by the Small Business Admin-
HUBZone Small Business Concerns
istration regulations at 13 CFR part
maintained by the Small Business Ad-
124) exceeds 50% of the total enroll-
ministration.
ment.
Identified loan means a loan project Native American means any individual
or set-aside activity receiving assist- who is an American Indian, Eskimo,
ance from a recipient of an EPA finan- Aleut, or Native Hawaiian.
cial assistance agreement to capitalize Recipient means an entity that re-
a revolving loan fund, which: ceives an EPA financial assistance
(1) In the case of the CWSRF Pro- agreement or is a sub-recipient of such
gram, is a project funded from amounts agreement, including loan recipients
equal to the capitalization grant; under the Clean Water State Revolving
(2) In the case of the DWSRF Pro- Fund Program, Drinking Water State
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gram, is a loan project or set-aside ac- Revolving Fund Program, and the
tivity funded from amounts up to the Brownfields Cleanup Revolving Loan
amount of the capitalization grant; or Fund Program.
354
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Environmental Protection Agency § 33.105
Services means a contractor’s labor, tor of the Office of Small and Dis-
time or efforts provided in a manner advantaged Business Utilization.
consistent with normal business prac- (b) The request must document spe-
tices which do not involve the delivery cial or exceptional circumstances that
of a specific end item, other than docu- make compliance with the requirement
ments (e.g., reports, design drawings, impractical, including a specific pro-
specifications). posal addressing how the recipient in-
Small business, small business concern tends to achieve the objectives of this
or small business enterprise (SBE) means part as described in § 33.101. The re-
a concern, including its affiliates, that quest must show that:
is independently owned and operated, (1) There is a reasonable basis to con-
not dominant in the field of operation clude that the recipient could achieve
in which it is bidding, and qualified as a level of MBE and WBE participation
a small business under the criteria and consistent with the objectives of this
size standards in 13 CFR part 121. part using different or innovative
Small business in a rural area (SBRA) means other than those that are pro-
means a small business operating in an vided in subparts C or D of this part;
area identified as a rural county with a (2) Conditions in the recipient’s juris-
code 6–9 in the Rural-Urban continuum diction are appropriate for imple-
Classification Code developed by the menting the request; and
United States Department of Agri- (3) The request is consistent with ap-
culture in 1980. plicable law.
Supplies means items procured under (c) The OSDBU Director has the au-
a financial assistance agreement as de- thority to approve a recipient’s re-
fined by applicable regulations for the quest. If the OSDBU Director grants a
particular type of financial assistance recipient’s request, the recipient may
received. administer its program as provided in
United States means any of the sev- the request, subject to the following
eral States, the District of Columbia, conditions:
the Commonwealth of Puerto Rico and
(1) The recipient’s level of MBE and
any other territories and possessions of
WBE participation continues to be con-
the United States.
sistent with the objectives of this part;
Women’s business enterprise (WBE)
(2) There is a reasonable limitation
means a business concern which is at
on the duration of the recipient’s modi-
least 51% owned or controlled by
fied program; and
women for purposes of EPA’s 8% stat-
ute or a business concern which is at (3) Any other conditions the OSDBU
least 51% owned and controlled by Director makes on the grant of the
women for purposes for EPA’s 10% stat- waiver.
ute. Determination of ownership by a (d) The OSDBU Director may end a
married woman in a community prop- program waiver at any time upon no-
erty jurisdiction will not be affected by tice to the recipient and require a re-
her husband’s 50 percent interest in her cipient to comply with the provisions
share. Similarly, a business concern of this part. The OSDBU Director may
which is more than 50 percent owned also extend the waiver if he or she de-
by a married man will not become a termines that all requirements of para-
qualified WBE by virtue of his wife’s 50 graphs (b) and (c) of this section con-
percent interest in his share. tinue to be met. Any such extension
shall be for no longer than the period
[73 FR 15913, Mar. 26, 2008, as amended at 79 originally set for the duration of the
FR 76054, Dec. 19, 2014] program waiver.
§ 33.104 May recipients apply for a [73 FR 15913, Mar. 26, 2008]
waiver from the requirements of
this part? § 33.105 What are the compliance and
(a) A recipient may apply for a waiv- enforcement provisions of this
er from any of the requirements of this part?
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part that are not specifically based on If a recipient fails to comply with
a statute or Executive Order, by sub- any of the requirements of this part,
mitting a written request to the Direc- EPA may take remedial action under 2
355
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§ 33.106 40 CFR Ch. I (7–1–21 Edition)
356
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Environmental Protection Agency § 33.203
sonal net worth of less than $750,000. the free enterprise system is impaired
(d) HBCU. An HBCU automatically due to diminished capital and credit
qualifies as an entity owned or con- opportunities, as compared to others in
357
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§ 33.204 40 CFR Ch. I (7–1–21 Edition)
the same business area who are not so- socially and economically disadvan-
cially disadvantaged and as further de- taged individual, and that entity owns
fined by section 8(a)(6) of the Small 51% of the joint venture.
Business Act (15 U.S.C. 637(a)(6)) and (2) As a party to a joint venture, a
its implementing regulations (13 CFR person who is not an economically dis-
124.104). (See also 13 CFR 124.109 for spe- advantaged individual, or an entity
cial rules applicable to Indian tribes that is not owned and controlled by a
and Alaska Native Corporations; 13 socially and economically disadvan-
CFR 124.110 for special rules applicable taged individual, may not be a party to
to Native Hawaiian Organizations). more than two awarded contracts in a
Under EPA’s DBE Program, an indi- fiscal year solely by joint venture with
vidual claiming disadvantaged status a socially and economically disadvan-
must have an initial and continued per- taged individual or entity.
sonal net worth of less than $750,000.
(d) Presumptions. In accordance with § 33.204 Where does an entity become
Title X of the Clean Air Act Amend- certified under EPA’s 8% and 10%
ments of 1990, 42 U.S.C. 7601 note, Black statutes?
Americans, Hispanic Americans, Na- (a) In order to participate as an MBE
tive Americans, Asian Americans, or WBE prime or subcontractor for
Women and Disabled Americans are EPA recipients under EPA’s DBE Pro-
presumed to be socially and economi- gram, an entity must first attempt to
cally disadvantaged individuals. In ad- be certified by the following:
dition, the following institutions are (1) The United States Small Business
presumed to be entities owned and con- Administration (SBA), under its 8(a)
trolled by socially and economically Business Development Program (13
disadvantaged individuals: HBCUs, Mi- CFR part 124, subpart A) or its Small
nority Institutions (including Tribal Disadvantaged Business (SDB) Pro-
Colleges and Universities and Hispanic- gram, (13 CFR part 124, subpart B);
Serving Institutions) and private and
(2) The United States Department of
voluntary organizations controlled by
Transportation (DOT), under its regu-
individuals who are socially and eco-
lations for Participation by Disadvan-
nomically disadvantaged.
taged Business Enterprises in DOT Pro-
(e) Individuals not members of des-
grams (49 CFR parts 23 and 26); or
ignated groups. Nothing in this section
(3) an Indian Tribal Government,
shall prohibit any member of a racial
State Government, local Government
or ethnic group that is not designated
or independent private organization in
as socially and economically disadvan-
accordance with EPA’s 8% or 10% stat-
taged under paragraph (d) of this sec-
ute as applicable.
tion from establishing that they have
been impeded in developing a business (2) Such certifications shall be con-
concern as a result of racial or ethnic sidered acceptable for establishing
discrimination. MBE or WBE status, as appropriate,
(f) Rebuttal of presumptions. The pre- under EPA’s DBE Program as long as
sumptions established by paragraph (d) the certification meets EPA’s U.S. citi-
of this section may be rebutted in ac- zenship requirement under § 33.202 or
cordance with § 33.209 with respect to a § 33.203.
particular entity if it is reasonably es- (3) An entity may only apply to EPA
tablished that the individual at issue is for MBE or WBE certification under
not experiencing impediments to devel- the procedures set forth in § 33.205 if
oping such entity as a result of the in- that entity first is unable to obtain
dividual’s identification as a member MBE or WBE certification under para-
of a specified group. graphs (a) (1) through (3) of this sec-
(g) Joint ventures. (1) A joint venture tion.
may be considered owned and con- (b) [Reserved]
trolled by socially and economically
disadvantaged individuals, notwith- § 33.205 How does an entity become
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Environmental Protection Agency § 33.205
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§ 33.206 40 CFR Ch. I (7–1–21 Edition)
MBE or WBE certification may reapply under penalty of perjury of the laws of
for certification at any time 12 months the United States. This affidavit must
or more after the date of the most re- affirm that there have been no changes
360
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Environmental Protection Agency § 33.211
in the entity’s circumstances affecting the late filing of the appeal or chal-
its ability to meet disadvantaged sta- lenge.
tus, ownership, and/or control require- (d) No specific format is required for
ments of this subpart or any material an appeal or challenge. However, the
changes in the information provided in appeal or challenge must include infor-
its application form. Failure to comply mation and arguments concerning why
may result in the loss of MBE or WBE EPA OSDBU’s MBE or WBE certifi-
certification under EPA’s DBE Pro- cation determination should be re-
gram. versed. For challenges in which a third
(b) An entity certified as an MBE or party questions EPA OSDBU’s deter-
WBE by EPA OSDBU must inform EPA mination to certify an entity as an
OSDBU in writing of any change in cir- MBE or WBE under § 33.205 or § 33.209,
cumstance affecting the MBE’s or the third party must also send a copy
WBE’s ability to meet disadvantaged of the challenge to the entity whose
status, ownership, and/or control re- MBE or WBE certification is being
quirements of this subpart or any ma- questioned. In addition, the Director
terial change in the information pro- shall request information and argu-
vided in its application form. The MBE ments from that entity as to why EPA
or WBE must attach supporting docu- OSDBU’s determination to certify the
mentation describing in detail the na- entity as an MBE or WBE should be
ture of such change. The notice from upheld.
the MBE or WBE must take the form of (e) The Director makes his/her appeal
an affidavit sworn to by the applicant or challenge decision based solely on
before a person who is authorized by the administrative record and does not
State law to administer oaths or of an conduct a hearing. The Director may
unsworn declaration executed under supplement the record by adding rel-
penalty of perjury of the laws of the evant information made available by
United States. The MBE or WBE must any other source, including the EPA
provide the written notification within Office of Inspector General; Federal,
30 calendar days of the occurrence of State, or local law enforcement au-
the change. thorities; an EPA recipient; or a pri-
vate party.
§ 33.211 What is the process for appeal- (f) Consistent with Federal law, the
ing or challenging an EPA MBE or Director shall make available, upon
WBE certification determination? the request of the appellant, challenger
(a) An entity which has been denied or the entity affected by the Director’s
MBE or WBE certification by EPA appeal or challenge decision, any sup-
OSDBU under § 33.205 or § 33.209 may ap- plementary information the Director
peal that denial. A third party may receives from any source as described
challenge EPA OSDBU’s determination in paragraph (e) of this section.
to certify an entity as an MBE or WBE (g) Pending the Director’s appeal or
under § 33.205 or § 33.209. challenge decision, EPA OSDBU’s MBE
(b) Appeals and challenges must be or WBE certification determination re-
sent to the Director of OSDBU at Envi- mains in effect. The Director does not
ronmental Protection Agency, 1200 stay the effect of its MBE or WBE cer-
Pennsylvania Avenue, NW., Mail Code tification determination while he/she is
1230T, Washington, DC 20460. considering an appeal or challenge.
(c) The appeal or challenge must be (h) The Director shall reverse EPA
sent to the Director of OSDBU (Direc- OSDBU’s MBE or WBE certification de-
tor) within 90 days of the date of EPA termination only if there was a clear
OSDBU’s MBE or WBE certification de- and significant error in the processing
termination. The Director may accept of the certification or if EPA OSDBU
an appeal or challenge filed later than failed to consider a significant mate-
90 days after the date of EPA OSDBU’s rial fact contained within the entity’s
MBE or WBE certification determina- application for MBE or WBE certifi-
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§ 33.212 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 33.304
Form. A recipient must then require § 33.304 Must a Native American (ei-
its prime contractor to include all ther as an individual, organization,
completed forms as part of the prime Tribe or Tribal Government) recipi-
contractor’s bid or proposal package. ent or prime contractor follow the
six good faith efforts?
(g) A recipient must require its prime
contractor to complete and submit (a) A Native American (either as an
EPA Form 6100–4—DBE Program Sub- individual, organization, corporation,
contractor Utilization Form as part of Tribe or Tribal Government) recipient
the prime contractor’s bid or proposal or prime contractor must follow the six
good faith efforts only if doing so
package.
would not conflict with existing Tribal
(h) Copies of EPA Form 6100–2—DBE
or Federal law, including but not lim-
Program Subcontractor Participation ited to the Indian Self-Determination
Form, EPA Form 6100–3—DBE Program and Education Assistance Act (25
Subcontractor Performance Form and U.S.C. 450e), which establishes, among
EPA Form 6100–4—DBE Program Sub- other things, that any federal contract,
contractor Utilization Form may be subcontract, grant, or subgrant award-
obtained from EPA OSDBU’s Home ed to Indian organizations or for the
Page on the Internet or directly from benefit of Indians, shall require pref-
EPA OSDBU. erence in the award of subcontracts
(i) A recipient must ensure that each and subgrants to Indian organizations
procurement contract it awards con- and to Indian-owned economic enter-
tains the term and condition specified prises.
in the appendix concerning compliance (b) Tribal organizations awarded an
with the requirements of this part. A EPA financial assistance agreement
recipient must also ensure that this have the ability to solicit and recruit
term and condition is included in each Indian organizations and Indian-owned
procurement contract awarded by an economic enterprises and give them
entity receiving an identified loan preference in the award process prior
under a financial assistance agreement to undertaking the six good faith ef-
to capitalize a revolving loan fund. forts. Tribal governments with promul-
gated tribal laws and regulations con-
§ 33.303 Are there special rules for cerning the solicitation and recruit-
loans under EPA financial assist- ment of Native-owned and other minor-
ance agreements? ity business enterprises, including
women-owned business enterprises,
A recipient of an EPA financial as- have the discretion to utilize these
sistance agreement to capitalize a re- tribal laws and regulations in lieu of
volving loan fund, such as a State the six good faith efforts. If the effort
under the CWSRF or DWSRF or an eli- to recruit Indian organizations and In-
gible entity under the Brownfields dian-owned economic enterprises is not
Cleanup Revolving Loan Fund pro- successful, then the recipient must fol-
gram, must require that borrowers re- low the six good faith efforts. All tribal
ceiving identified loans comply with recipients still must retain records
the good faith efforts described in documenting compliance in accordance
§ 33.301 and the contract administration with § 33.501 and must report to EPA on
requirements of § 3.302. This provision their accomplishments in accordance
does not require that such private and with § 33.502.
nonprofit borrowers expend identified (c) Any recipient, whether or not Na-
loan funds in compliance with any tive American, of an EPA financial as-
other procurement procedures con- sistance agreement for the benefit of
tained in 2 CFR part 200 Subpart D— Native Americans, is required to solicit
Post Federal Award Requirements, and recruit Indian organizations and
Procurement Standards, or 40 CFR part Indian-owned economic enterprises and
35 subpart O, as applicable. give them preference in the award
process prior to undertaking the six
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[73 FR 15913, Mar. 26, 2008, as amended at 79 good faith efforts. If the efforts to so-
FR 76054, Dec. 19, 2014] licit and recruit Indian organizations
and Indian-owned economic enterprises
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§ 33.401 40 CFR Ch. I (7–1–21 Edition)
is not successful, then the recipient § 33.404 When must a recipient nego-
must follow the six good faith efforts. tiate fair share objectives with
(d) Native Americans are defined in EPA?
§ 33.103 to include American Indians, A recipient must submit its proposed
Eskimos, Aleuts and Native Hawaiians. MBE and WBE fair share objectives and
supporting documentation to EPA
Subpart D—Fair Share Objectives within 120 days after its acceptance of
its financial assistance award. EPA
§ 33.401 What does this subpart re- must respond in writing to the recipi-
quire? ent’s submission within 30 days of re-
ceipt, either agreeing with the submis-
A recipient must negotiate with the
sion or providing initial comments for
appropriate EPA award official or his/
further negotiation. Failure to respond
her designee, fair share objectives for
within this time frame may be consid-
MBE and WBE participation in pro-
ered as agreement by EPA with the fair
curement under the financial assist-
share objectives submitted by the re-
ance agreements.
cipient. MBE and WBE fair share objec-
§ 33.402 Are there special rules for tives must be agreed upon by the re-
loans under EPA financial assist- cipient and EPA before funds may be
ance agreements? expended for procurement under the re-
cipient’s financial assistance agree-
A recipient of an EPA financial as- ment.
sistance agreement to capitalize re-
volving loan funds must either apply § 33.405 How does a recipient deter-
its own fair share objectives negotiated mine its fair share objectives?
with EPA under § 33.401 to identified (a) A recipient must determine its
loans using a substantially similar rel- fair share objectives based on demon-
evant geographic market, or negotiate strable evidence of the number of cer-
separate fair share objectives with en- tified MBEs and WBEs that are ready,
tities receiving identified loans, as willing, and able to perform in the rel-
long as such separate objectives are evant geographic market for each of
based on demonstrable evidence of the four procurement categories
availability of MBEs and WBEs in ac- (equipment, construction, services, and
cordance with this subpart. If procure- supplies). The relevant geographic
ments will occur over more than one market is the area of solicitation for
year, the recipient may choose to apply the procurement as determined by the
the fair share objective in place either recipient. The market may be a geo-
for the year in which the identified graphic region of a State, an entire
loan is awarded or for the year in State, or a multi-State area. Fair share
which the procurement action occurs. objectives must reflect the recipient’s
The recipient must specify this choice determination of the level of MBE and
in the financial assistance agreement, WBE participation it would expect ab-
or incorporate it by reference therein. sent the effects of discrimination. A re-
cipient may combine the four procure-
§ 33.403 What is a fair share objective?
ment categories into one weighted ob-
A fair share objective is an objective jective for MBEs and one weighted ob-
based on the capacity and availability jective for WBEs.
of qualified, certified MBEs and WBEs (b) Step 1. A recipient must first de-
in the relevant geographic market for termine a base figure for the relative
the procurement categories of con- availability of MBEs and WBEs. The
struction, equipment, services and sup- following are examples of approaches
plies compared to the number of all that a recipient may take. Any per-
qualified entities in the same market centage figure derived from one of
for the same procurement categories, these examples should be considered a
adjusted, as appropriate, to reflect the basis from which a recipient begins
level of MBE and WBE participation when examining evidence available in
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Environmental Protection Agency § 33.407
the number of certified MBEs and (ii) Evidence from disparity studies
WBEs that are ready, willing, and able conducted anywhere within the recipi-
to perform in the relevant geographic ent’s jurisdiction, to the extent it is
market for each procurement category not already accounted for in the base
from a MBE/WBE directory, such as a figure; and
bidder’s list. Using the Census Bureau’s (iii) If the base figure is the objective
County Business Pattern (CBP) data- of another EPA recipient, it must be
base, determine the number of all adjusted for differences in the local
qualified businesses available in the market and the recipient’s contracting
market that perform work in the same program.
procurement category. Separately di- (2) A recipient may also consider
vide the number of MBEs and WBEs by available evidence from related fields
the number of all businesses to derive a that affect the opportunities for MBEs
base figure for the relative availability and WBEs to form, grow and compete.
of MBEs and WBEs in the market. These include, but are not limited to:
(2) Data from a Disparity Study. Use a (i) Statistical disparities in the abil-
percentage figure derived from data in ity of MBEs and WBEs to get the fi-
a valid, applicable disparity study con- nancing, bonding and insurance re-
ducted within the preceding ten years quired to participate; and
comparing the available MBEs and
(ii) Data on employment, self-em-
WBEs in the relevant geographic mar-
ployment, education, training and
ket with their actual usage by entities
union apprenticeship programs, to the
procuring in the categories of construc-
extent it can be related to the opportu-
tion, equipment, services, and supplies.
(3) The Objective of Another EPA Re- nities for MBEs and WBEs to perform
cipient. A recipient may use, as its base in the program.
figure, the fair share objectives of an- (3) If a recipient attempts to make an
other EPA recipient if the recipient adjustment to its base figure to ac-
demonstrates that it will use the same, count for the continuing effects of past
or substantially similar, relevant geo- discrimination (often called the ‘‘but
graphic market as the other EPA re- for’’ factor) or the effects of another
cipient. (See § 33.411 for exemptions ongoing MBE/WBE program, the ad-
from fair share objective negotiations). justment must be based on demon-
(4) Alternative Methods. Subject to strable evidence that is logically and
EPA approval, other methods may be directly related to the effect for which
used to determine a base figure for the the adjustment is sought.
overall objective. Any methodology
chosen must be based on demonstrable § 33.406 May a recipient designate a
lead agency for fair share objective
evidence of local market conditions negotiation purposes?
and be designed to ultimately attain an
objective that is rationally related to If an Indian Tribal, State or local
the relative availability of MBEs and Government has more than one agency
WBEs in the relevant geographic mar- that receives EPA financial assistance,
ket. the agencies within that Government
(c) Step 2. After calculating a base may designate a lead agency to nego-
figure, a recipient must examine the tiate MBE and WBE fair share objec-
evidence available in its jurisdiction to tives with EPA to be used by each of
determine what adjustment, if any, is the agencies. Each agency must other-
needed to the base figure in order to ar- wise negotiate with EPA separately its
rive at the fair share objective. own MBE and WBE fair share objec-
(1) There are many types of evidence tives.
that must be considered when adjust-
ing the base figure. These include: § 33.407 How long do MBE and WBE
(i) The current capacity of MBEs and fair share objectives remain in ef-
WBEs to perform contract work under fect?
EPA financial assistance agreements, Once MBE and WBE fair share objec-
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as measured by the volume of work tives have been negotiated, they will
MBEs and WBEs have performed in re- remain in effect for three fiscal years
cent years; unless there are significant changes to
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§ 33.408 40 CFR Ch. I (7–1–21 Edition)
the data supporting the fair share ob- to apply the fair share objective re-
jectives. The fact that a disparity quirements of this subpart. This ex-
study utilized in negotiating fair share emption is limited to the fair share ob-
objectives has become more than ten jective requirements of this subpart.
years old during the three-year period (b) Clean Water State Revolving Fund
does not by itself constitute a signifi- (CWSRF) Program, Drinking Water State
cant change requiring renegotiation. Revolving Fund (DWSRF) Program, and
Brownfields Cleanup Revolving Loan
§ 33.408 May a recipient use race and/
or gender conscious measures as Fund (BCRLF) Program Identified Loan
part of this program? Recipients. A recipient under the
CWSRF, DWSRF, or BCRLF Program
(a) Should the good faith efforts de-
is not required to apply the fair share
scribed in subpart C of this part or
objective requirements of this subpart
other race and/or gender neutral meas-
to an entity receiving an identified
ures prove to be inadequate to achieve
an established fair share objective, loan in an amount of $250,000 or less or
race and/or gender conscious action to an entity receiving more than one
(e.g., apply the subcontracting sugges- identified loan with a combined total
tion in § 33.301(c) to MBEs and WBEs) is of $250,000 or less in any one fiscal year.
available to a recipient and its prime This exemption is limited to the fair
contractor to more closely achieve the share objective requirements of this
fair share objectives, subject to § 33.409. subpart.
Under no circumstances are race and/or (c) Tribal and Intertribal Consortia re-
gender conscious actions required by cipients of program grants which can be
EPA. included in Performance Partnership
(b) Any use of race and/or gender con- Grants (PPGs) under 40 CFR Part 35,
scious efforts must not result in the se- Subpart B. Tribal and Intertribal con-
lection of an unqualified MBE or WBE. sortia recipients of PPG eligible grants
are not required to apply the fair share
§ 33.409 May a recipient use quotas as objective requirements of this subpart
part of this program? to those grants. This exemption is lim-
A recipient is not permitted to use ited to the fair share objective require-
quotas in procurements under EPA’s ments of this subpart.
8% or 10% statute. (d) Technical Assistance Grant (TAG)
Program Recipients. A recipient of a
§ 33.410 Can a recipient be penalized
for failing to meet its fair share ob- TAG is not required to apply the fair
jectives? share objective requirements of this
subpart to that grant. This exemption
A recipient cannot be penalized, or
is limited to the fair share objective re-
treated by EPA as being in noncompli-
quirements of this subpart.
ance with this subpart, solely because
its MBE or WBE participation does not § 33.412 Must an Insular Area or In-
meet its applicable fair share objective. dian Tribal Government recipient
However, EPA may take remedial ac- negotiate fair share objectives?
tion under § 33.105 for a recipient’s fail-
ure to comply with other provisions of The requirements in this subpart re-
this part, including, but not limited to, garding the negotiation of fair share
the good faith efforts requirements de- objectives will not apply to an Insular
scribed in subpart C of this part. Area or Indian Tribal Government re-
cipient until three calendar years after
§ 33.411 Who may be exempted from the effective date of this part. Further-
this subpart? more, in accordance with § 33.411(c),
(a) General. A recipient of an EPA fi- tribal and intertribal consortia recipi-
nancial assistance agreement in the ents of program grants which can be
amount of $250,000 or less for any single included in Performance Partnership
assistance agreement, or of more than Grants (PPGs) under 40 CFR part 35,
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one financial assistance agreement subpart B are not required to apply the
with a combined total of $250,000 or less fair share objective requirements of
in any one fiscal year, is not required this subpart to such grants.
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§ 33.503 40 CFR Ch. I (7–1–21 Edition)
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Environmental Protection Agency § 34.105
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§ 34.105 40 CFR Ch. I (7–1–21 Edition)
450B). Alaskan Natives are included officer or employee of any person, com-
under the definitions of Indian tribes in pensation that is consistent with the
that Act. normal compensation for such officer
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Environmental Protection Agency § 34.110
or employee for work that is not fur- (1) Award of a Federal contract,
nished to, not funded by, or not fur- grant, or cooperative agreement ex-
nished in cooperation with the Federal ceeding $100,000; or
Government. (2) An award of a Federal loan or a
(n) Reasonable payment means, with commitment providing for the United
respect to professional and other tech- States to insure or guarantee a loan
nical services, a payment in an amount exceeding $150,000.
that is consistent with the amount nor- (b) Each person shall file a certifi-
mally paid for such services in the pri- cation, and a disclosure form, if re-
vate sector. quired, upon receipt by such person of:
(o) Recipient includes all contractors, (1) A Federal contract, grant, or co-
subcontractors at any tier, and sub- operative agreement exceeding $100,000;
grantees at any tier of the recipient of or
funds received in connection with a (2) A Federal loan or a commitment
Federal contract, grant, loan, or coop- providing for the United States to in-
erative agreement. The term excludes sure or guarantee a loan exceeding
an Indian tribe, tribal organization, or $150,000,
any other Indian organization with re-
Unless such person previously filed a
spect to expenditures specifically per-
certification, and a disclosure form, if
mitted by other Federal law.
(p) Regularly employed means, with required, under paragraph (a) of this
respect to an officer or employee of a section.
person requesting or receiving a Fed- (c) Each person shall file a disclosure
eral contract, grant, loan, or coopera- form at the end of each calendar quar-
tive agreement or a commitment pro- ter in which there occurs any event
viding for the United States to insure that requires disclosure or that materi-
or guarantee a loan, an officer or em- ally affects the accuracy of the infor-
ployee who is employed by such person mation contained in any disclosure
for at least 130 working days within form previously filed by such person
one year immediately preceding the under paragraphs (a) or (b) of this sec-
date of the submission that initiates tion. An event that materially affects
agency consideration of such person for the accuracy of the information re-
receipt of such contract, grant, loan, ported includes:
cooperative agreement, loan insurance (1) A cumulative increase of $25,000 or
commitment, or loan guarantee com- more in the amount paid or expected to
mitment. An officer or employee who is be paid for influencing or attempting
employed by such person for less than to influence a covered Federal action;
130 working days within one year im- or
mediately preceding the date of the (2) A change in the person(s) or indi-
submission that initiates agency con- vidual(s) influencing or attempting to
sideration of such person shall be con- influence a covered Federal action; or,
sidered to be regularly employed as (3) A change in the officer(s), em-
soon as he or she is employed by such ployee(s), or Member(s) contacted to
person for 130 working days. influence or attempt to influence a
(q) State means a State of the United covered Federal action.
States, the District of Columbia, the (d) Any person who requests or re-
Commonwealth of Puerto Rico, a terri- ceives from a person referred to in
tory or possession of the United States, paragraphs (a) or (b) of this section:
an agency or instrumentality of a (1) A subcontract exceeding $100,000
State, and a multi-State, regional, or at any tier under a Federal contract;
interstate entity having governmental (2) A subgrant, contract, or sub-
duties and powers. contract exceeding $100,000 at any tier
under a Federal grant;
§ 34.110 Certification and disclosure. (3) A contract or subcontract exceed-
(a) Each person shall file a certifi- ing $100,000 at any tier under a Federal
cation, and a disclosure form, if re- loan exceeding $150,000; or,
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quired, with each submission that ini- (4) A contract or subcontract exceed-
tiates agency consideration of such ing $100,000 at any tier under a Federal
person for: cooperative agreement,
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§ 34.200 40 CFR Ch. I (7–1–21 Edition)
Shall file a certification, and a disclo- lative liaison activities not directly re-
sure form, if required, to the next tier lated to a covered Federal action.
above. (b) For purposes of paragraph (a) of
(e) All disclosure forms, but not cer- this section, providing any information
tifications, shall be forwarded from specifically requested by an agency or
tier to tier until received by the person Congress is allowable at any time.
referred to in paragraphs (a) or (b) of (c) For purposes of paragraph (a) of
this section. That person shall forward this section, the following agency and
all disclosure forms to the agency.
legislative liaison activities are allow-
(f) Any certification or disclosure
able at any time only where they are
form filed under paragraph (e) of this
not related to a specific solicitation for
section shall be treated as a material
representation of fact upon which all any covered Federal action:
receiving tiers shall rely. All liability (1) Discussing with an agency (in-
arising from an erroneous representa- cluding individual demonstrations) the
tion shall be borne solely by the tier qualities and characteristics of the per-
filing that representation and shall not son’s products or services, conditions
be shared by any tier to which the er- or terms of sale, and service capabili-
roneous representation is forwarded. ties; and,
Submitting an erroneous certification (2) Technical discussions and other
or disclosure constitutes a failure to activities regarding the application or
file the required certification or disclo- adaptation of the person’s products or
sure, respectively. If a person fails to services for an agency’s use.
file a required certification or disclo- (d) For purposes of paragraph (a) of
sure, the United States may pursue all this section, the following agencies and
available remedies, including those au- legislative liaison activities are allow-
thorized by section 1352, title 31, U.S. able only where they are prior to for-
Code. mal solicitation of any covered Federal
(g) For awards and commitments in action:
process prior to December 23, 1989, but (1) Providing any information not
not made before that date, certifi- specifically requested but necessary for
cations shall be required at award or
an agency to make an informed deci-
commitment, covering activities oc-
sion about initiation of a covered Fed-
curring between December 23, 1989, and
eral action;
the date of award or commitment.
However, for awards and commitments (2) Technical discussions regarding
in process prior to the December 23, the preparation of an unsolicited pro-
1989 effective date of these provisions, posal prior to its official submission;
but not made before December 23, 1989, and,
disclosure forms shall not be required (3) Capability presentations by per-
at time of award or commitment but sons seeking awards from an agency
shall be filed within 30 days. pursuant to the provisions of the Small
(h) No reporting is required for an ac- Business Act, as amended by Public
tivity paid for with appropriated funds Law 95–507 and other subsequent
if that activity is allowable under ei- amendments.
ther subpart B or C. (e) Only those activities expressly au-
thorized by this section are allowable
Subpart B—Activities by Own under this section.
Employees
§ 34.205 Professional and technical
§ 34.200 Agency and legislative liaison. services.
(a) The prohibition on the use of ap- (a) The prohibition on the use of ap-
propriated funds, in § 34.100 (a), does propriated funds, in § 34.100 (a), does
not apply in the case of a payment of not apply in the case of a payment of
reasonable compensation made to an reasonable compensation made to an
officer or employee of a person request- officer or employee of a person request-
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Environmental Protection Agency § 34.300
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§ 34.400 40 CFR Ch. I (7–1–21 Edition)
contract is allowable. However, com- (b) Any person who fails to file or
munications with the intent to influ- amend the disclosure form (see appen-
ence made by a professional (such as a dix B) to be filed or amended if re-
licensed lawyer) or a technical person quired herein, shall be subject to a civil
(such as a licensed accountant) are not penalty of not less than $10,000 and not
allowable under this section unless more than $100,000 for each such fail-
they provide advice and analysis di- ure.
rectly applying their professional or (c) A filing or amended filing on or
technical expertise and unless the ad- after the date on which an administra-
vice or analysis is rendered directly tive action for the imposition of a civil
and solely in the preparation, submis- penalty is commenced does not prevent
sion or negotiation of a covered Fed- the imposition of such civil penalty for
eral action. Thus, for example, commu- a failure occurring before that date. An
nications with the intent to influence administrative action is commenced
made by a lawyer that do not provide with respect to a failure when an inves-
legal advice or analysis directly and tigating official determines in writing
solely related to the legal aspects of to commence an investigation of an al-
his or her client’s proposal, but gen- legation of such failure.
erally advocate one proposal over an- (d) In determining whether to impose
other are not allowable under this sec- a civil penalty, and the amount of any
tion because the lawyer is not pro- such penalty, by reason of a violation
viding professional legal services. by any person, the agency shall con-
Similarly, communications with the sider the nature, circumstances, ex-
intent to influence made by an engi- tent, and gravity of the violation, the
neer providing an engineering analysis effect on the ability of such person to
prior to the preparation or submission continue in business, any prior viola-
of a bid or proposal are not allowable tions by such person, the degree of cul-
under this section since the engineer is pability of such person, the ability of
providing technical services but not di- the person to pay the penalty, and such
rectly in the preparation, submission other matters as may be appropriate.
or negotiation of a covered Federal ac- (e) First offenders under paragraphs
tion. (a) or (b) of this section shall be subject
(d) Requirements imposed by or pur- to a civil penalty of $10,000, absent ag-
suant to law as a condition for receiv- gravating circumstances. Second and
ing a covered Federal award include subsequent offenses by persons shall be
those required by law or regulation, or subject to an appropriate civil penalty
reasonably expected to be required by between $10,000 and $100,000, as deter-
law or regulation, and any other re- mined by the agency head or his or her
quirements in the actual award docu- designee.
ments. (f) An imposition of a civil penalty
(e) Persons other than officers or em- under this section does not prevent the
ployees of a person requesting or re- United States from seeking any other
ceiving a covered Federal action in- remedy that may apply to the same
clude consultants and trade associa- conduct that is the basis for the impo-
tions. sition of such civil penalty.
(f) Only those services expressly au- § 34.405 Penalty procedures.
thorized by this section are allowable
under this section. Agencies shall impose and collect
civil penalties pursuant to the provi-
sions of the Program Fraud and Civil
Subpart D—Penalties and Remedies Act, 31 U.S.C. 3803 (except
Enforcement subsection (c)), 3804, 3805, 3806, 3807,
3808, and 3812, insofar as these provi-
§ 34.400 Penalties. sions are not inconsistent with the re-
(a) Any person who makes an expend- quirements herein.
iture prohibited herein shall be subject
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Environmental Protection Agency § 34.605
that the provisions herein are vigor- Services of the Senate and the House of
ously implemented and enforced in Representatives (whichever such com-
that agency. mittees have jurisdiction of matters
involving such information) and to the
Subpart E—Exemptions Committees on Appropriations of the
Senate and the House of Representa-
§ 34.500 Secretary of Defense. tives in accordance with procedures
(a) The Secretary of Defense may ex- agreed to by such committees. Such in-
empt, on a case-by-case basis, a cov- formation shall not be available for
ered Federal action from the prohibi- public inspection.
tion whenever the Secretary deter- (e) The first semi-annual compilation
mines, in writing, that such an exemp- shall be submitted on May 31, 1990, and
tion is in the national interest. The shall contain a compilation of the dis-
Secretary shall transmit a copy of each closure reports received from Decem-
such written exemption to Congress ber 23, 1989 to March 31, 1990.
immediately after making such a de- (f) Major agencies, designated by the
termination. Office of Management and Budget
(b) The Department of Defense may (OMB), are required to provide ma-
issue supplemental regulations to im- chine-readable compilations to the
plement paragraph (a) of this section. Secretary of the Senate and the Clerk
of the House of Representatives no
Subpart F—Agency Reports later than with the compilations due
on May 31, 1991. OMB shall provide de-
§ 34.600 Semi-annual compilation. tailed specifications in a memorandum
(a) The head of each agency shall col- to these agencies.
lect and compile the disclosure reports (g) Non-major agencies are requested
(see appendix B) and, on May 31 and to provide machine-readable compila-
November 30 of each year, submit to tions to the Secretary of the Senate
the Secretary of the Senate and the and the Clerk of the House of Rep-
Clerk of the House of Representatives a resentatives.
report containing a compilation of the (h) Agencies shall keep the originals
information contained in the disclo- of all disclosure reports in the official
sure reports received during the six- files of the agency.
month period ending on March 31 or § 34.605 Inspector General report.
September 30, respectively, of that
year. (a) The Inspector General, or other
(b) The report, including the com- official as specified in paragraph (b) of
pilation, shall be available for public this section, of each agency shall pre-
inspection 30 days after receipt of the pare and submit to Congress each year,
report by the Secretary and the Clerk. commencing with submission of the
(c) Information that involves intel- President’s Budget in 1991, an evalua-
ligence matters shall be reported only tion of the compliance of that agency
to the Select Committee on Intel- with, and the effectiveness of, the re-
ligence of the Senate, the Permanent quirements herein. The evaluation may
Select Committee on Intelligence of include any recommended changes that
the House of Representatives, and the may be necessary to strengthen or im-
Committees on Appropriations of the prove the requirements.
Senate and the House of Representa- (b) In the case of an agency that does
tives in accordance with procedures not have an Inspector General, the
agreed to by such committees. Such in- agency official comparable to an In-
formation shall not be available for spector General shall prepare and sub-
public inspection. mit the annual report, or, if there is no
(d) Information that is classified such comparable official, the head of
under Executive Order 12356 or any suc- the agency shall prepare and submit
cessor order shall be reported only to the annual report.
the Committee on Foreign Relations of (c) The annual report shall be sub-
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the Senate and the Committee on For- mitted at the same time the agency
eign Affairs of the House of Represent- submits its annual budget justifica-
atives or the Committees on Armed tions to Congress.
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Pt. 34, App. A 40 CFR Ch. I (7–1–21 Edition)
(d) The annual report shall include agreement, the undersigned shall complete
the following: All alleged violations re- and submit Standard Form-LLL, ‘‘Disclosure
lating to the agency’s covered Federal Form to Report Lobbying,’’ in accordance
with its instructions.
actions during the year covered by the
(3) The undersigned shall require that the
report, the actions taken by the head
language of this certification be included in
of the agency in the year covered by the award documents for all subawards at all
the report with respect to those alleged tiers (including subcontracts, subgrants, and
violations and alleged violations in contracts under grants, loans, and coopera-
previous years, and the amounts of tive agreements) and that all subrecipients
civil penalties imposed by the agency shall certify and disclose accordingly.
in the year covered by the report. This certification is a material representa-
tion of fact upon which reliance was placed
when this transaction was made or entered
into. Submission of this certification is a
prerequisite for making or entering into this
APPENDIX A TO PART 34—CERTIFICATION transaction imposed by section 1352, title 31,
REGARDING LOBBYING U.S. Code. Any person who fails to file the
Certification for Contracts, Grants, Loans, and required certification shall be subject to a
Cooperative Agreements civil penalty of not less than $10,000 and not
more than $100,000 for each such failure.
The undersigned certifies, to the best of his
or her knowledge and belief, that: Statement for Loan Guarantees and Loan
(1) No Federal appropriated funds have Insurance
been paid or will be paid, by or on behalf of
the undersigned, to any person for influ- The undersigned states, to the best of his
encing or attempting to influence an officer or her knowledge and belief, that:
or employee of an agency, a Member of Con- If any funds have been paid or will be paid
gress, an officer or employee of Congress, or to any person for influencing or attempting
an employee of a Member of Congress in con- to influence an officer or employee of any
nection with the awarding of any Federal agency, a Member of Congress, an officer or
contract, the making of any Federal grant, employee of Congress, or an employee of a
the making of any Federal loan, the entering Member of Congress in connection with this
into of any cooperative agreement, and the commitment providing for the United States
extension, continuation, renewal, amend- to insure or guarantee a loan, the under-
ment, or modification of any Federal con- signed shall complete and submit Standard
tract, grant, loan, or cooperative agreement. Form-LLL, ‘‘Disclosure Form to Report Lob-
(2) If any funds other than Federal appro- bying,’’ in accordance with its instructions.
priated funds have been paid or will be paid Submission of this statement is a pre-
to any person for influencing or attempting requisite for making or entering into this
to influence an officer or employee of any transaction imposed by section 1352, title 31,
agency, a Member of Congress, an officer or U.S. Code. Any person who fails to file the
employee of Congress, or an employee of a required statement shall be subject to a civil
Member of Congress in connection with this penalty of not less than $10,000 and not more
Federal contract, grant, loan, or cooperative than $100,000 for each such failure.
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Environmental Protection Agency Pt. 34, App. B
377
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Environmental Protection Agency Pt. 34, App. B
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Pt. 35 40 CFR Ch. I (7–1–21 Edition)
380
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Environmental Protection Agency Pt. 35
STATE UNDERGROUND STORAGE TANKS 35.508 Funding period.
(SECTION 2007(f)(2)) 35.509 Consolidated grants.
35.330 Purpose. EPA ACTION ON APPLICATION
35.332 Basis for allotment.
35.335 Maximum federal share. 35.510 Time frame for EPA action.
35.511 Criteria for approving an application.
POLLUTION PREVENTION STATE GRANTS 35.512 Factors considered in determining
(SECTION 6605) award amount.
35.340 Purpose. 35.513 Reimbursement for pre-award costs.
35.342 Competitive process.
35.343 Definitions. POST-AWARD REQUIREMENTS
35.345 Eligible applicants. 35.514 Amendments and other changes.
35.348 Award limitation. 35.515 Evaluation of performance.
35.349 Maximum federal share. 35.516 Direct implementation.
35.517 Unused funds.
WATER QUALITY COOPERATIVE AGREEMENTS
(SECTION 104(b)(3)) 35.518 Unexpended balances.
381
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Pt. 35 40 CFR Ch. I (7–1–21 Edition)
NONPOINT SOURCE MANAGEMENT GRANTS 35.705 Maximum federal share.
(SECTIONS 319(h) AND 518(f)) 35.708 Award limitations.
35.630 Purpose. TOXIC SUBSTANCES COMPLIANCE MONITORING
35.632 Definition. (SECTION 28)
35.633 Eligibility requirements.
35.635 Maximum federal share. 35.710 Purpose.
35.636 Maintenance of effort. 35.712 Competitive process.
35.638 Award limitations. 35.713 Eligible recipients.
35.715 Maximum federal share.
PESTICIDE COOPERATIVE ENFORCEMENT 35.718 Award limitation.
(SECTION 23 (a)(1))
HAZARDOUS WASTE MANAGEMENT PROGRAM
35.640 Purpose. GRANTS (PUB.L. 105–276)
35.641 Eligible recipients.
35.642 Maximum federal share. 35.720 Purpose.
35.645 Basis for allotment. 35.723 Competitive process.
35.725 Maximum federal share.
PESTICIDE APPLICATOR CERTIFICATION AND
TRAINING (SECTION 23(a)(2)) UNDERGROUND STORAGE TANKS PROGRAM
GRANTS (PUB.L. 105–276)
35.646 Purpose.
35.649 Maximum federal share. 35.730 Purpose.
35.731 Eligible recipients.
PESTICIDE PROGRAM IMPLEMENTATION 35.732 Basis for allotment.
(SECTION 23(a)(1)) 35.735 Maximum federal share.
35.650 Purpose. TRIBAL RESPONSE PROGRAM GRANTS
35.653 Eligible recipients. (CERCLA SECTION 128(A))
35.655 Basis for allotment.
35.659 Maximum federal share. 35.736 Purpose.
35.737 Basis for allotment.
POLLUTION PREVENTION GRANTS (SECTION 35.738 Maximum federal share.
6605)
Subparts C–H [Reserved]
35.660 Purpose.
35.661 Competitive process. Subpart I—Grants for Construction of
35.662 Definitions.
Treatment Works
35.663 Eligible recipients.
35.668 Award limitations. 35.2000 Purpose and policy.
35.669 Maximum federal share. 35.2005 Definitions.
35.2010 Allotment; reallotment.
PUBLIC WATER SYSTEM SUPERVISION 35.2012 Capitalization grants.
(SECTIONS 1443(a) AND 1451) 35.2015 State priority system and project
35.670 Purpose. priority list.
35.672 Definition. 35.2020 Reserves.
35.673 Annual amount reserved by EPA. 35.2021 Reallotment of reserves.
35.675 Maximum federal share. 35.2023 Water quality management plan-
35.676 Eligible recipients. ning.
35.678 Award limitations. 35.2024 Combined sewer overflows.
35.2025 Allowance and advance of allowance.
UNDERGROUND WATER SOURCE PROTECTION 35.2030 Facilities planning.
(SECTION 1443(b)) 35.2032 Innovative and alternative tech-
35.680 Purpose. nologies.
35.682 Definition. 35.2034 Privately owned individual systems.
35.2035 Rotating biological contractor
35.683 Annual amount reserved by EPA.
(RBC) replacement grants.
35.685 Maximum federal share.
35.2036 Design/build project grants.
35.686 Eligible recipients
35.2040 Grant application.
35.688 Award limitations.
35.2042 Review of grant applications.
LEAD-BASED PAINT PROGRAM (SECTION 404(g)) 35.2050 Effect of approval or certification of
documents.
35.690 Purpose. 35.2100 Limitations on award.
35.691 Funding coordination. 35.2101 Advanced treatment.
35.693 Eligible recipients. 35.2102 Water quality management plan-
ning.
INDOOR RADON GRANTS (SECTION 306)
35.2103 Priority determination.
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Environmental Protection Agency Pt. 35
35.2107 Intermunicipal service agreements. 35.3115 Eligible activities of the SRF.
35.2108 Phased or segmented treatment 35.3120 Authorized types of assistance.
works. 35.3125 Limitations on SRF assistance.
35.2109 Step 2 + 3. 35.3130 The capitalization grant agreement.
35.2110 Access to individual systems. 35.3135 Specific capitalization grant agree-
35.2111 Revised water quality standards. ment requirements.
35.2112 Marine discharge waiver applicants. 35.3140 Environmental review requirements.
35.2113 Environmental review. 35.3145 Application of other Federal au-
35.2114 Value engineering. thorities.
35.2116 Collection system. 35.3150 Intended Use Plan (IUP).
35.2118 Preaward costs. 35.3155 Payments.
35.2120 Infiltration/Inflow. 35.3160 Cash draw rules.
35.2122 Approval of user charge system and 35.3165 Reports and audits.
proposed sewer use ordinance. 35.3170 Corrective action.
35.2123 Reserve capacity.
35.2125 Treatment of wastewater from in- APPENDIX A TO SUBPART K OF PART 35—CRI-
dustrial users. TERIA FOR EVALUATING A STATE’S PRO-
35.2127 Federal facilities. POSED NEPA-LIKE PROCESS
35.2130 Sewer use ordinance.
35.2140 User charge system. Subpart L—Drinking Water State Revolving
35.2152 Federal share. Funds
35.2200 Grant conditions.
35.2202 Step 2 + 3 projects. 35.3500 Purpose, policy, and applicability.
35.2203 Step 7 projects. 35.3505 Definitions.
35.2204 Project changes. 35.3510 Establishment of the DWSRF pro-
35.2205 Maximum allowable project cost. gram.
35.2206 Operation and maintenance. 35.3515 Allotment and withholdings of
35.2208 Adoption of sewer use ordinance and funds.
user charge system. 35.3520 Systems, projects, and project-re-
35.2210 Land acquisition. lated costs eligible for assistance from
35.2211 Field testing for Innovative and Al- the Fund.
ternative Technology Report. 35.3525 Authorized types of assistance from
35.2212 Project initiation. the Fund.
35.2214 Grantee responsibilities. 35.3530 Limitations on uses of the Fund.
35.2216 Notice of building completion and 35.3535 Authorized set-aside activities.
final inspection. 35.3540 Requirements for funding set-aside
35.2218 Project performance. activities.
35.2250 Determination of allowable costs. 35.3545 Capitalization grant agreement.
35.2260 Advance purchase of eligible land. 35.3550 Specific capitalization grant agree-
35.2262 Funding of field testing. ment requirements.
35.2300 Grant payments. 35.3555 Intended Use Plan (IUP).
35.2350 Subagreement enforcement. 35.3560 General payment and cash draw
APPENDIX A TO SUBPART I OF PART 35—DE- rules.
TERMINATION OF ALLOWABLE COSTS 35.3565 Specific cash draw rules for author-
APPENDIX B TO SUBPART I OF PART 35—AL- ized types of assistance from the Fund.
LOWANCE FOR FACILITIES PLANNING AND 35.3570 Reports and audits.
DESIGN 35.3575 Application of Federal cross-cutting
authorities (cross-cutters).
Subpart J—Construction Grants Program 35.3580 Environmental review requirements.
Delegation to States 35.3585 Compliance assurance procedures.
APPENDIX A TO SUBPART L OF PART 35—CRI-
35.3000 Purpose. TERIA FOR EVALUATING A STATE’S PRO-
35.3005 Policy. POSED NEPA-LIKE PROCESS.
35.3010 Delegation agreement.
35.3015 Extent of State responsibilities. Subpart M—Grants for Technical
35.3020 Certification procedures.
Assistance
35.3025 Overview of State performance
under delegation. GENERAL
35.3030 Right of review of State decision.
35.3035 Public participation. 35.4000 Authority.
35.4005 What is a Technical Assistance
Subpart K—State Water Pollution Control Grant?
Revolving Funds 35.4010 What does this subpart do?
35.4011 Do the general grant regulations
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Pt. 35 40 CFR Ch. I (7–1–21 Edition)
200 and 1500 and this subpart, which regu- 35.4135 What period of time should my
lations should my group follow? group’s budget cover?
35.4015 Do certain words in this subpart 35.4140 What must be included in my
have specific meaning? group’s work plan?
35.4145 How much time do my group or
WHO IS ELIGIBLE? other interested groups have to submit a
35.4020 Is my community group eligible for TAG application to EPA?
a TAG? 35.4150 What happens after my group sub-
35.4025 Is there any way my group can get a mits its application to EPA?
TAG if it is currently ineligible? 35.4155 How does EPA decide whether to
35.4030 Can I be a part of a TAG group if I award a TAG to our group?
belong to an ineligible group? 35.4160 What does EPA do if more than one
35.4035 Does EPA use the same eligibility group applies for a TAG at the same site?
criteria for TAGs at ‘‘Federal facility’’ 35.4161 Does the TAG application process af-
sites? fect the schedule for work at my site?
35.4040 How many groups can receive a TAG 35.4165 When does EPA award a TAG?
at one Superfund site?
MANAGING YOUR TAG
YOUR RESPONSIBILITIES AS A TAG RECIPIENT 35.4170 What kinds of reporting does EPA
35.4045 What requirements must my group require?
meet as a TAG recipient? 35.4175 What other reporting and record
35.4050 Must my group contribute toward keeping requirements are there?
the cost of a TAG? 35.4180 Must my group keep financial
35.4055 What if my group can’t come up with records after we finish our TAG?
the ‘‘matching funds?’’ 35.4185 What does my group do with reports
our technical advisor prepares for us?
HOW MUCH MONEY TAGS PROVIDE
PROCURING A TECHNICAL ADVISOR OR OTHER
35.4060 How much money can my group re- CONTRACTOR WITH TAG FUNDS
ceive through a TAG?
35.4065 How can my group get more than 35.4190 How does my group identify a quali-
$50,000? fied technical advisor?
35.4195 Are there certain people my group
WHAT TAGS CAN PAY FOR cannot select to be our technical advisor,
35.4070 How can my group spend TAG grant administrator, or other contractor
money? under the grant?
35.4075 Are there things my group can’t 35.4200 What restrictions apply to contrac-
spend TAG money for? tors my group procures for our TAG?
35.4205 How does my group procure a tech-
HOW YOU GET THE MONEY nical advisor or any other contractor?
35.4210 Must my group solicit and document
35.4080 Does my group get a lump sum up
bids for our procurements?
front, or does EPA reimburse us for costs
35.4215 What if my group can’t find an ade-
we incur?
quate number of potential sources for a
35.4085 Can my group get an ‘‘advance pay-
technical advisor or other contractor?
ment’’ to help us get started?
35.4220 How does my group ensure a prospec-
35.4090 If my group is eligible for an ad-
tive contractor does not have a conflict
vance payment, how do we get our funds?
of interest?
35.4095 What can my group pay for with an
35.4225 What if my group decides a prospec-
advance payment?
tive contractor has a conflict of interest?
35.4100 Can my group incur any costs prior
35.4230 What are my group’s contractual re-
to the award of our grant?
sponsibilities once we procure a con-
HOW TO APPLY FOR A TAG tractor?
35.4235 Are there specific provisions my
35.4105 What is the first step for getting a group’s contract(s) must contain?
TAG?
35.4106 What information should an LOI in- REQUIREMENTS FOR TAG CONTRACTORS
clude?
35.4110 What does EPA do once it receives 35.4240 What provisions must my group’s
the first LOI from a group? TAG contractor comply with if it sub-
35.4115 After the public notice that EPA has contracts?
received an LOI, how much time does my GRANT DISPUTES, TERMINATION, AND
group have to form a coalition or submit ENFORCEMENT
a separate LOI?
35.4120 What does my group do next? 35.4245 How does my group resolve a dis-
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35.4125 What else does my group need to do? agreement with EPA regarding our TAG?
35.4130 What must be included in my 35.4250 Under what circumstances would
group’s budget? EPA terminate my group’s TAG?
384
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Environmental Protection Agency Pt. 35
35.4255 Can my group terminate our TAG? REMOVAL RESPONSE COOPERATIVE
35.4260 What other steps might EPA take if AGREEMENTS
my group fails to comply with the terms
and conditions of our award? 35.6200 Eligibility for removal Cooperative
Agreements.
CLOSING OUT A TAG 35.6205 Removal Cooperative Agreements.
35.4265 How does my group close out our CORE PROGRAM COOPERATIVE AGREEMENTS
TAG?
35.6215 Eligibility for Core Program Cooper-
OTHER THINGS YOU NEED TO KNOW ative Agreements.
35.4270 Definitions. 35.6220 General.
35.4275 Where can my group get the docu- 35.6225 Activities eligible for funding under
ments this subpart references (for exam- Core Program Cooperative Agreements.
ple, OMB circulars, other subparts, 35.6230 Application requirements.
forms)? 35.6235 Cost sharing.
385
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§ 35.001 40 CFR Ch. I (7–1–21 Edition)
USE OF RECIPIENT EMPLOYEES (‘‘FORCE AC- 35.9040 Application for assistance.
COUNT’’) UNDER A COOPERATIVE AGREE- 35.9045 EPA action on application.
MENT 35.9050 Assistance amount.
35.6500 General requirements. 35.9055 Evaluation of recipient performance.
35.9060 Maximum Federal share.
PROCUREMENT REQUIREMENTS UNDER A 35.9065 Limitations.
COOPERATIVE AGREEMENT 35.9070 National program assistance agree-
ments.
35.6550 Procurement system standards.
35.6555 Competition.
Subpart Q—Credit Assistance for Water
35.6565 Procurement methods.
35.6570 Use of the same engineer during sub- Infrastructure Projects
sequent phases of response. 35.10000 Purpose.
35.6575 Restrictions on types of contracts. 35.10005 Definitions.
35.6580 [Reserved]
35.10010 Limitations on assistance.
35.6585 Cost and price analysis.
35.10015 Application process.
35.6590 Bonding and insurance.
35.10020 Small community set-aside.
35.6595 Contract provisions.
35.10025 Federal requirements.
35.6600 Contractor claims.
35.6605 Privity of contract. 35.10026 Federal flood risk management
35.6610 Contracts awarded by a contractor. standard.
35.10030 American iron and steel.
REPORTS REQUIRED UNDER A COOPERATIVE 35.10035 Labor standards.
AGREEMENT 35.10040 Investment-grade ratings.
35.10045 Threshold criteria.
35.6650 Progress reports. 35.10050 Use of existing financing mecha-
35.6655 Notification of significant develop- nisms.
ments.
35.10055 Selection criteria.
35.6660 Property inventory reports.
35.10060 Term sheets and approvals.
35.6665 [Reserved]
35.10065 Closing on the credit agreement.
35.6670 Financial reports.
35.10070 Credit agreement.
RECORDS REQUIREMENTS UNDER A 35.10075 Reporting requirements.
COOPERATIVE AGREEMENT 35.10080 Fees.
35.6700 Project records. AUTHORITY: 42 U.S.C. 7401 et seq.; 33 U.S.C.
35.6705 Records retention. 1251 et seq.; 42 U.S.C. 300f et seq.; 42 U.S.C. 6901
35.6710 Records access. et seq.; 7 U.S.C. 136 et seq.; 15 U.S.C. 2601 et
seq.; 42 U.S.C. 13101 et seq.; Pub. L. 104–134, 110
OTHER ADMINISTRATIVE REQUIREMENTS FOR Stat. 1321, 1321–299 (1996); Pub. L. 105–65, 111
COOPERATIVE AGREEMENTS Stat. 1344, 1373 (1997), 2 CFR 200.
35.6750 Modifications.
35.6755 Monitoring program performance. § 35.001 Applicability.
35.6760 Enforcement and termination. This part codifies policies and proce-
35.6765 Non-Federal audit. dures for financial assistance awarded
35.6770 Disputes. by the Environmental Protection
35.6775 Exclusion of third-party benefits.
Agency (EPA) to State, interstate, and
35.6780 Closeout.
35.6785 Collection of amounts due. local agencies, Indian Tribes and Inter-
35.6790 High risk recipients. tribal Consortia for pollution abate-
ment and control programs. These pro-
REQUIREMENTS FOR ADMINISTERING A visions supplement the EPA general as-
SUPERFUND STATE CONTRACT (SSC) sistance regulations in 2 CFR parts 200
35.6800 Superfund State Contract. and 1500.
35.6805 Contents of an SSC.
35.6815 Administrative requirements. [66 FR 1734, Jan. 9, 2001, as amended at 79 FR
35.6820 Conclusion of the SSC. 76054, Dec. 19, 2014]
35.9020 Planning targets. seq.; 42 U.S.C. 13101 et seq.; Pub. L. 104–134, 110
35.9030 Work program. Stat. 1321, 1321–299 (1996); Pub. L. 105–65, 111
35.9035 Budget period. Stat. 1344, 1373 (1997).
386
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Environmental Protection Agency § 35.101
SOURCE: 66 FR 1734, Jan. 9, 2001, unless oth- Federal Insecticide, Fungicide, and
erwise noted. Rodenticide Act).
(9) Pesticide program implementa-
GENERAL
tion (section 23(a)(1) of the Federal In-
§ 35.100 Purpose of the subpart. secticide, Fungicide, and Rodenticide
Act).
This subpart establishes administra-
(10) Nonpoint source management
tive requirements for all grants award-
ed to State, interstate, and local agen- (sections 205(j)(5) and 319(h) of the
cies and other entities for the environ- Clean Water Act).
mental programs listed in § 35.101. (11) Lead-based paint program (sec-
These provisions supplement the EPA tion 404(g) of the Toxic Substances
general assistance regulations in 2 CFR Control Act).
parts 200 and 1500. Sections 35.100–35.118 (12) State indoor radon grants (sec-
contain administrative requirements tion 306 of the Toxic Substances Con-
that apply to all environmental pro- trol Act).
gram grants included in this subpart. (13) Toxic substances compliance
Sections 35.130–35.418 contain require- monitoring (section 28 of the Toxic
ments that apply to specified environ- Substances Control Act).
mental program grants. Many of these (14) State underground storage tanks
environmental programs also have pro- (section 2007(f)(2) of the Solid Waste
grammatic and technical requirements Disposal Act).
that are published elsewhere in the (15) Pollution prevention state grants
Code of Federal Regulations. (section 6605 of the Pollution Preven-
[66 FR 1734, Jan. 9, 2001, as amended at 79 FR tion Act of 1990).
76054, Dec. 19, 2014] (16) Water quality cooperative agree-
ments (section 104(b)(3) of the Clean
§ 35.101 Environmental programs cov- Water Act).
ered by the subpart. (17) Wetlands development grants
(a) The requirements in this subpart program (section 104(b)(3) of the Clean
apply to all grants awarded for the fol- Water Act).
lowing programs: (18) State administration of construc-
(1) Performance partnership grants tion grant, permit, and planning pro-
(Omnibus Consolidated Rescissions and grams (section 205(g) of the Clean
Appropriations Act of 1996, Pub. Law Water Act).
104–134, 110 Stat. 1321, 1321–299 (1996) (19) Water quality management plan-
and Departments of Veterans Affairs ning (section 205(j)(2) of the Clean
and Housing and Urban Development, Water Act).
and Independent Agencies Appropria- (20) State Response Program Grants
tions Act, 1998, Pub. Law 105–65, 111 (section 128(a) of the Comprehensive
Stat. 1344, 1373 (1997)). Environmental Response, Compensa-
(2) Air pollution control (section 105 tion, and Liability Act (CERCLA)).
of the Clean Air Act).
(b) Unless otherwise prohibited by
(3) Water pollution control (section
statute or regulation, the requirements
106 of the Clean Water Act).
in § 35.100 through § 35.118 of this sub-
(4) Public water system supervision
part also apply to grants under envi-
(section 1443(a) of the Safe Drinking
ronmental programs established after
Water Act).
this subpart becomes effective if speci-
(5) Underground water source protec-
fied in Agency guidance for such pro-
tion (section 1443(b) of the Safe Drink-
grams.
ing Water Act).
(6) Hazardous waste management (c) In the event a grant is awarded
(section 3011(a) of the Solid Waste Dis- from EPA headquarters for one of the
posal Act). programs listed in paragraph (a) of this
(7) Pesticide cooperative enforcement section, this subpart shall apply and
(section 23(a)(1) of the Federal Insecti- the term ‘‘Regional Administrator’’
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§ 35.102 40 CFR Ch. I (7–1–21 Edition)
388
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Environmental Protection Agency § 35.109
work plan is the basis for the manage- and the extent to which each program’s
ment and evaluation of performance funds support each work plan compo-
under the grant agreement. nent. Recipients of consolidated grants
389
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§ 35.110 40 CFR Ch. I (7–1–21 Edition)
must account for grant funds in ac- (2) Disapprove the application in
cordance with the funds’ environ- writing.
mental program sources; funds in- [66 FR 1734, Jan. 9, 2001, as amended at 79 FR
cluded in a consolidated grant from a 76054, Dec. 19, 2014]
particular environmental program may
be used only for that program. § 35.112 Factors considered in deter-
(b) Insular areas that choose to con- mining award amount.
solidate environmental program grants (a) After approving an application
may be exempted by the Regional Ad- under § 35.111, the Regional Adminis-
ministrator from requirements of this trator will consider such factors as the
subpart in accordance with 48 U.S.C. applicant’s allotment, the extent to
1469a. which the proposed work plan is con-
sistent with EPA guidance and mutu-
EPA ACTION ON APPLICATION ally agreed upon priorities, and the an-
ticipated cost of the work plan relative
§ 35.110 Time frame for EPA action. to the proposed work plan components,
The Regional Administrator will re- to determine the amount of funds to be
view a complete application and either awarded.
approve, conditionally approve, or dis- (b) If the Regional Administrator
approve it within 60 days of receipt. finds the requested level of funding is
This period may be extended by mutual not justified or the work plan does not
agreement between EPA and the appli- comply with the requirements of
cant. The Regional Administrator will § 35.107, the Regional Administrator
award the funds for approved or condi- will attempt to negotiate a resolution
tionally approved applications when of the issues with the applicant before
the funds are available. determining the award amount. The
Regional Administrator may determine
§ 35.111 Criteria for approving an ap- that the award amount will be less
plication. than the amount allotted or requested.
(a) The Regional Administrator may § 35.113 Reimbursement for pre-award
approve an application upon deter- costs.
mining that:
(a) Notwithstanding the require-
(1) The application meets the re-
ments of 2 CFR parts 200 and 1500, EPA
quirements of this subpart and 2 CFR
may reimburse recipients for pre-award
part 200, subpart C.
costs incurred from the beginning of
(2) The application meets the re- the funding period established in the
quirements of all applicable federal grant agreement if such costs would
statutes; regulations; circulars; execu- have been allowable if incurred after
tive orders; and delegations, approvals, the award and the recipients submitted
or authorizations; complete grant applications before the
(3) The proposed work plan complies beginning of the budget period. Such
with the requirements of § 35.107; and costs must be identified in the grant
(4) The achievement of the proposed application EPA approves.
work plan is feasible, considering such (b) The applicant incurs pre-award
factors as the applicant’s existing cir- costs at its own risk. EPA is under no
cumstances, past performance, pro- obligation to reimburse such costs un-
gram authority, organization, re- less they are included in an approved
sources, and procedures. grant award.
(b) If the Regional Administrator
[66 FR 1734, Jan. 9, 2001, as amended at 79 FR
finds the application does not satisfy 76054, Dec. 19, 2014]
the criteria in paragraph (a) of this sec-
tion, the Regional Administrator may POST-AWARD REQUIREMENTS
either:
(1) Conditionally approve the applica- § 35.114 Amendments and other
tion if only minor changes are re- changes.
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Environmental Protection Agency § 35.115
work plan is negotiated and a grant EPA’s approval before approving the
awarded. subgrantee’s request.
(a) Changes requiring prior approval. [66 FR 1734, Jan. 9, 2001, as amended at 79 FR
Recipients may make significant 76055, Dec. 19, 2014]
changes in work plan commitments
only after obtaining the Regional Ad- § 35.115 Evaluation of performance.
ministrator’s prior written approval.
(a) Joint evaluation process. The appli-
EPA, in consultation with the recipi-
cant and the Regional Administrator
ent, will document these revisions in-
will develop a process for jointly evalu-
cluding budgeted amounts associated
ating and reporting progress and ac-
with the revisions.
complishments under the work plan. A
(b) Changes requiring approval. Recipi-
description of the evaluation process
ents must request, in writing, grant
and a reporting schedule must be in-
amendments for changes requiring in-
cluded in the work plan (see
creases in environmental program
§ 35.107(b)(2)(iv)). The schedule must re-
grant amounts and extensions of the
quire the recipient to report at least
funding period. Recipients may begin
annually and must satisfy the require-
implementing a change before the
ments for progress reporting under 2
amendment has been approved by EPA,
CFR 200.328.
but do so at their own risk. If EPA ap-
(b) Elements of the evaluation process.
proves the change, EPA will issue a
The evaluation process must provide
grant amendment. EPA will notify the
for:
recipient in writing if the change is
(1) A discussion of accomplishments
disapproved.
as measured against work plan com-
(c) Changes not requiring approval.
mitments;
Other than those situations described
(2) A discussion of the cumulative ef-
in paragraphs (a) and (b) of this sec-
fectiveness of the work performed
tion, recipients do not need to obtain
under all work plan components;
approval for changes, including
changes in grant work plans, budgets, (3) A discussion of existing and po-
or other components of grant agree- tential problem areas; and
ments, unless the Regional Adminis- (4) Suggestions for improvement, in-
trator determines approval require- cluding, where feasible, schedules for
ments should be imposed on a specific making improvements.
recipient for a specified period of time. (c) Resolution of issues. If the joint
(d) OMB cost principles. The Regional evaluation reveals that the recipient
Administrator may waive in writing has not made sufficient progress under
approval requirements for specific re- the work plan, the Regional Adminis-
cipients and costs contained in OMB trator and the recipient will negotiate
cost principles. a resolution that addresses the issues.
(e) Changes in consolidated grants. Re- If the issues cannot be resolved
cipients of consolidated grants under through negotiation, the Regional Ad-
§ 35.109 may not transfer funds among ministrator may take appropriate
environmental programs. measures under 2 CFR 200.338. The re-
cipient may request review of the Re-
(f) Subgrants. Subgrantees must re-
gional Administrator’s decision under
quest required approvals in writing
the dispute processes in 2 CFR part
from the recipient and the recipient
1500, subpart E.
shall approve or disapprove the request
in writing. A recipient will not approve (d) Evaluation reports. The Regional
any work plan or budget revision which Administrator will ensure that the re-
is inconsistent with the purpose or quired evaluations are performed ac-
terms and conditions of the federal cording to the negotiated schedule and
grant to the recipient. If the revision that copies of evaluation reports are
requested by the subgrantee would re- placed in the official files and provided
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§ 35.116 40 CFR Ch. I (7–1–21 Edition)
ment, and Independent Agencies Ap- through (17) and (20). (Funds available
propriations Act, 1998, (Pub. L. 105–65; from the section 205(g) State Adminis-
111 Stat. 1344, 1373 (1997)). tration Grants program (§ 35.101(a)(18))
392
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Environmental Protection Agency § 35.137
and the Water Quality Management § 35.135 Activities eligible for funding.
Planning Grant program (§ 35.101(a)(19))
(a) A recipient may use a Perform-
and funds awarded to States under
ance Partnership Grant, subject to the
State Response Program Grants
requirements of paragraph (c) of this
(§ 35.101(a)(20)) to capitalize a revolving
section, to fund any activity that is el-
loan fund for Brownfield remediation
igible for funding under at least one of
or purchase insurance or develop a risk
the environmental programs from
sharing pool, an indemnity pool, or in-
which funds are combined into the
surance mechanism to provide financ-
grant.
ing for response actions may not be in-
(b) A recipient may also use a Per-
cluded in Performance Partnership
formance Partnership Grant to fund
Grants.)
multi-media activities that are eligible
(b) Changes in eligible programs. The in accordance with paragraph (a) of
Administrator may, in guidance or reg- this section and have been agreed to by
ulation, describe subsequent additions, the Regional Administrator. Such ac-
deletions, or changes to the list of en- tivities may include multi-media per-
vironmental programs eligible for in- mitting and enforcement and pollution
clusion in Performance Partnership prevention, ecosystem management,
Grants. community-based environmental pro-
[66 FR 1734, Jan. 9, 2001, as amended at 74 FR tection, and other innovative ap-
28444, June 16, 2009; 74 FR 46020, Sept. 8, 2009] proaches.
(c) A recipient may not use a Per-
§ 35.134 Eligible recipients. formance Partnership Grant to fund
(a) Eligible agencies. All State agen- activities eligible only under a specific
cies (including environmental, health, environmental program grant unless
agriculture, and other agencies) and some or all of the recipient’s allotted
interstate agencies eligible to receive funds for that program have been in-
funds from more than one environ- cluded in the Performance Partnership
mental program may receive Perform- Grant.
ance Partnership Grants
§ 35.136 Cost share requirements.
(b) Designated agency. A State agency
must be designated by a Governor, (a) An applicant for a Performance
State legislature, or other authorized Partnership Grant must provide a non-
State process to receive grants under federal cost share that is not less than
each of the environmental programs to the sum of the minimum non-federal
be combined in the Performance Part- cost share required under each of the
nership Grant. If it is not the des- environmental programs that are com-
ignated agency for a particular grant bined in the Performance Partnership
program to be included in the Perform- Grant. Cost share requirements for the
ance Partnership Grant, the State individual environmental programs are
agency must have an agreement with described in §§ 35.140 to 35.418.
the State agency that does have the (b) When an environmental program
designation regarding how the funds included in the Performance Partner-
will be shared between the agencies. ship Grant has both a matching and
(c) Programmatic requirements. In maintenance of effort requirement, the
order to include funds from an environ- greater of the two amounts will be used
mental program grant listed in § 35.101 to calculate the minimum cost share
of this subpart in a Performance Part- attributed to that environmental pro-
nership Grant, applicants must meet gram.
the requirements for award of each of
the environmental programs from § 35.137 Application requirements.
which funds are combined in the agen- (a) An application for a Performance
cy’s Performance Partnership Grant, Partnership Grant must contain:
except the requirements at §§ 35.268(b) (1) A list of the environmental pro-
and (c), 35.272, and 35.298 (c), (d), (e), grams and the amount of funds from
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§ 35.138 40 CFR Ch. I (7–1–21 Edition)
(3) A consolidated work plan that ad- mitments will be carried over into fu-
dresses each program being combined ture work plans.
in the grant and that meets the re-
quirements of § 35.107; and, AIR POLLUTION CONTROL (SECTION 105)
(4) A rationale, commensurate with
§ 35.140 Purpose.
the extent of any programmatic flexi-
bility (i.e., increased effort in some (a) Purpose of section. Sections 35.140
programs and decreased effort in oth- through 35.148 govern Air Pollution
ers) indicated in the work plan, that Control Grants to State, local, inter-
explains the basis for the applicant’s state, or intermunicipal air pollution
priorities, the expected environmental control agencies (as defined in section
or other benefits to be achieved, and 302(b) of the Clean Air Act) authorized
the anticipated impact on any environ- under section 105 of the Act.
mental programs or program areas pro- (b) Purpose of program. Air Pollution
posed for reduced effort. Control Grants are awarded to admin-
(b) The applicant and the Regional ister programs that prevent and con-
Administrator will negotiate regarding trol air pollution or implement na-
the information necessary to support tional ambient air quality standards.
the rationale for programmatic flexi- (c) Program regulations. Refer to 40
bility required in paragraph (a)(4) of CFR parts 49, 50, 51, 52, 58, 60, 61, 62, and
this section. The rationale may be sup- 81 for associated program regulations.
ported by information from a variety
of sources, including a Performance § 35.141 Definitions.
Partnership Agreement or comparable In addition to the definitions in
negotiated document, the evaluation § 35.102, the following definitions apply
report required in § 35.125, and other en- to the Clean Air Act’s section 105 grant
vironmental and programmatic data program:
sources. Implementing means any activity re-
(c) A State agency seeking pro- lated to planning, developing, estab-
grammatic flexibility is encouraged to lishing, carrying-out, improving, or
include a description of efforts to in- maintaining programs for the preven-
volve the public in developing the tion and control of air pollution or im-
State agency’s priorities. plementation of national primary and
secondary ambient air quality stand-
§ 35.138 Competitive grants. ards.
(a) Some environmental program Nonrecurrent expenditures are those
grants are awarded through a competi- expenditures which are shown by the
tive process. An applicant and the Re- recipient to be of a nonrepetitive, un-
gional Administrator may agree to add usual, or singular nature that would
funds available for a competitive grant not reasonably be expected to recur in
to a Performance Partnership Grant. If the foreseeable future. Costs cat-
this is done, the work plan commit- egorized as nonrecurrent must be ap-
ments that would have been included proved in the grant agreement or an
in the competitive grant must be in- amendment thereto.
cluded in the Performance Partnership Recurrent expenditures are those ex-
Grant work plan. After the funds have penses associated with the activities of
been added to the Performance Part- a continuing environmental program.
nership Grant, the recipient does not All expenditures are considered recur-
need to account for these funds in ac- rent unless justified by the applicant
cordance with the funds’ original envi- as nonrecurrent and approved as such
ronmental program source. in the grant award or an amendment
(b) If the projected completion date thereto.
for competitive grant work plan com-
mitments added to a Performance § 35.143 Allotment.
Partnership Grant is after the end of (a) The Administrator allots air pol-
the Performance Partnership Grant lution control funds under section 105
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funding period, the Regional Adminis- of the Clean Air Act based on a number
trator and the applicant will agree in of factors, including:
writing as to how the work plan com- (1) Population;
394
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Environmental Protection Agency § 35.147
(2) The extent of actual or potential reduction of the programs of all execu-
air pollution problems; and tive branch agencies of the applicable
(3) The financial need of each agency. unit of government.
(b) The Regional Administrator shall (e) The Regional Administrator will
allot to a State not less than one-half not award section 105 funds unless the
of one percent nor more than 10 per- applicant provides assurance that the
cent of the annual section 105 grant ap- grant will not supplant non-federal
propriation. funds that would otherwise be avail-
(c) The Administrator may award
able for maintaining the section 105
funds on a competitive basis.
program.
§ 35.145 Maximum federal share.
§ 35.147 Minimum cost share for a Per-
(a) The Regional Administrator may formance Partnership Grant.
provide air pollution control agencies,
as defined in section 302(b) of the Clean (a) To calculate the cost share for a
Air Act, up to three-fifths of the ap- Performance Partnership Grant (see
proved costs of implementing programs §§ 35.130 through 35.138) in the initial
for the prevention and control of air and subsequent years that it includes
pollution or implementing national section 105 funds, the minimum cost
primary and secondary ambient air share contribution for the section 105
quality standards. program will be the match requirement
(b) Revenue collected pursuant to a set forth in § 35.145, or the maintenance
State’s Title V operating permit pro- of effort established under § 35.146 in
gram may not be used to meet the cost the first year that the section 105 grant
share requirements of section 105. is included in a Performance Partner-
ship Grant, whichever is greater.
§ 35.146 Maintenance of effort.
(b) If an air pollution control agency
(a) To receive funds under section includes its section 105 air program
105, an agency must expend annually, funding in a Performance Partnership
for recurrent section 105 program ex- Grant and subsequently withdraws that
penditures, an amount of non-federal program from the grant:
funds at least equal to such expendi-
(1) The required maintenance of ef-
tures during the preceding fiscal year.
fort amount for the section 105 pro-
(b) In order to award grants in a
timely manner each fiscal year, the Re- gram for the first year after the pro-
gional Administrator shall compare an gram is withdrawn will be equal to the
agency’s proposed expenditure level, as maintenance of effort amount required
detailed in the agency’s grant applica- in the year the agency included the
tion, to that agency’s expenditure level section 105 program in the Performance
in the second preceding fiscal year. Partnership Grant.
When expenditure data for the pre- (2) The maximum federal share for
ceding fiscal year is complete, the Re- the section 105 program in the first and
gional Administrator shall use this in- subsequent years after the grant is
formation to determine the agency’s withdrawn may not be more than
compliance with its maintenance of ef- three-fifths of the approved cost of the
fort requirement. program.
(c) If the expenditure data for the (c) The Regional Administrator may
preceding fiscal year shows that an approve an exception from paragraph
agency did not meet the requirements (b) of this section upon determining
of § 35.146, the Regional Administrator that exceptional circumstances justify
will take action to recover the grant a reduction in the maintenance of ef-
funds for the year in which the agency fort, including when an air pollution
did not maintain its level of effort.
control agency reduces section 105
(d) The Regional Administrator may
funding as part of a non-selective re-
grant an exception to § 35.146(a) if, after
notice and opportunity for a public duction of the programs of all execu-
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§ 35.148 40 CFR Ch. I (7–1–21 Edition)
396
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Environmental Protection Agency § 35.162
397
ER09JA01.019</GPH>
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§ 35.162 40 CFR Ch. I (7–1–21 Edition)
TABLE 2—COMPONENT WEIGHTS IN THE WATER that component. The component ratios
POLLUTION CONTROL STATE GRANT ALLOT- for all other States will be adjusted ac-
MENT FORMULA cordingly.
(7) Update cycle. The data used in the
FY2004
FY 2000 FY2001– + State formula will be periodically up-
Component FY2003
(percent) (percent) (per- dated. The first update will impact al-
cent)
lotments for FY 2001, and will consist
Surface Water Area ........... 13 13 12 of updating the data used to support
Ground Water Use ............. 11 12 12 the Water Quality Impairment compo-
Water Quality Impairment .. 13 25 35
Point Sources ..................... 25 17 13 nent of the formula. These data will be
Nonpoint Sources ............... 18 15 13 updated using the currently available
Population of Urbanized Clean Water Act section 305(b) reports.
Area ................................ 20 18 15
After this initial update, the data used
Total ............................ 100 100 100 to support all six components of the
Water Pollution Control State grant
(2) Funding floor. A funding floor is allotment formula will be updated in
established for each State. Each FY 2003 (for use in the determination of
State’s funding floor will be at least FY 2004 allotments). Thereafter, all
equal to its FY 2000 allotment in all fu- data will be updated every five years
ture years unless the funds appro- (e.g., in FY 2008 for FY 2009 allotments
priated for States under the Water Pol- and in FY 2013 for FY 2014 allotments.)
lution Control grant program decrease There will be an annual adjustment to
from the FY 2000 amount. the funding floor for all States, based
(3) Funding decrease. If the appropria- on the appropriation for Water Pollu-
tion for Water Pollution Control State tion Control State grants and changes
grants decreases in future years, the in the CPI.
funding floor will be disregarded and (c) Interstate allotment formula. EPA
all State allotments will be reduced by will set-aside 2.6 percent of the funds
an equal percentage. appropriated for the Water Pollution
(4) Inflation adjustment. Funding Control State grant program for inter-
floors for each State will be adjusted state agencies. The interstate agency
for inflation when the funds appro- Water Pollution Control grant allot-
priated for Water Pollution Control ment formula consists of two parts: a
State grants increase from the pre- funding floor with provisions for peri-
ceding fiscal year. These adjustments odic adjustments for inflation, and a
will be made on the basis of the cumu- variable allotment.
lative change in the Consumer Price (1) Funding Floor. A funding floor is
Index (CPI), published by the U.S. De- established for each interstate agency.
partment of Labor, since the most re- Each interstate’s funding floor for FY
cent year in which Water Pollution 2005 will be at least equal to its FY 2003
Control State grant funding last in- allotment. Beginning in FY 2006, the
creased. Inflation adjustments to State interstate funding floor will ensure
funding floors will be capped at the that unless there is a decrease in the
lesser of the percentage change in ap- CWA section 106 state appropriation,
propriated funds or the cumulative per- each interstate will receive at a min-
centage change in the inflation rate. imum, the same level of funding re-
(5) Cap on annual funding increases. ceived in the previous fiscal year. The
The maximum allotment to any State funding floor for each interstate agen-
will be 150 percent of that State’s allot- cy will be adjusted for inflation when
ment for the previous fiscal year. the funds appropriated for states under
(6) Cap on component ratio. A compo- the Water Pollution Control State
nent ratio is equal to each State’s grant program increase from the pre-
share of the national total of a single ceding fiscal year. These adjustments
component. The cap on each of the six will be made on the basis of the cumu-
State formula components ratios is 10 lative change in the Consumer Price
percent. If a State’s calculated compo- Index (CPI), published by the U.S. De-
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nent ratio for a particular component partment of Labor, since the most re-
exceeds the 10 percent cap, the State cent year in which Water Pollution
will instead be assigned 10 percent for Control State grant funding increased.
398
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Environmental Protection Agency § 35.168
399
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§ 35.170 40 CFR Ch. I (7–1–21 Edition)
400
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Environmental Protection Agency § 35.245
401
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§ 35.250 40 CFR Ch. I (7–1–21 Edition)
fined in section 502 of the Clean Water funds the State receives in any fiscal
Act) authorized under section 319 of the year. The cost of implementing en-
Act. forcement and regulatory activities,
402
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Environmental Protection Agency § 35.290
403
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§ 35.292 40 CFR Ch. I (7–1–21 Edition)
of the approved costs for the develop- States (as defined in section 3(13) of the
ment and implementation of radon pro- Toxic Substances Control Act) under
gram activities. section 28(a) of the Act.
404
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Environmental Protection Agency § 35.343
405
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§ 35.345 40 CFR Ch. I (7–1–21 Edition)
(1) Reduces the amount of any haz- pollution control agencies and inter-
ardous substance, pollutant, or con- state agencies (as defined in section 502
taminant entering any waste stream or of the Clean Water Act) and local gov-
otherwise released into the environ- ernment agencies under section
ment (including fugitive emissions) 104(b)(3) of the Act. These sections do
prior to recycling, treatment, or dis- not govern Water Quality Cooperative
posal; Agreements to other entities eligible
(2) Reduces the hazards to public under section 104(b)(3).
health and the environment associated (b) Purpose of program. EPA awards
with the release of such substances,
Water Quality Cooperative Agreements
pollutants, or contaminants; or
for investigations, experiments, train-
(3) Reduces or eliminates the cre-
ation of pollutants through: ing, demonstrations, surveys, and stud-
(i) Increased efficiency in the use of ies relating to the causes, effects, ex-
raw materials, energy, water, or other tent, prevention, reduction, and elimi-
resources; or nation of water pollution. EPA issues
(ii) Protection of natural resources guidance each year advising EPA re-
by conservation. gions and headquarters regarding ap-
(b) Pollution prevention/source re- propriate priorities for funding for this
duction does not include any practice program. This guidance may include
which alters the physical, chemical, or such focus areas as National Pollutant
biological characteristics or the vol- Discharge Elimination System water-
ume of a hazardous substance, pollut- shed permitting, urban wet weather
ant, or contaminant through a process programs, or innovative pretreatment
or activity which itself is not integral program or biosolids projects.
to and necessary for the production of
a product or the providing of a service. [66 FR 1734, Jan. 9, 2001, as amended at 79 FR
76055, Dec. 19, 2014]
§ 35.345 Eligible applicants.
§ 35.362 Competitive process.
Applicants eligible for funding under
the Pollution Prevention program in- EPA will award Water Quality Coop-
clude any agency or instrumentality, erative Agreement funds through a
including State universities, of the 50 competitive process in accordance with
States, the District of Columbia, the national program guidance.
U.S. Virgin Islands, the Commonwealth
of Puerto Rico, and any territory or § 35.364 Maximum federal share.
possession of the United States. The Regional Administrator may
provide up to 100 percent of approved
§ 35.348 Award limitation.
work plan costs.
If a State includes a Pollution Pre-
vention State Grant in a Performance STATE WETLANDS DEVELOPMENT
Partnership Grant, the work plan com- GRANTS (SECTION 104(b)(3))
mitments must be included in the Per-
formance Partnership Grant work plan § 35.380 Purpose.
(see § 35.138).
(a) Purpose of section. Sections 35.380
§ 35.349 Maximum federal share. through 35.385 govern State Wetlands
Development Grants for State and
The federal share for Pollution Pre-
interstate agencies (as defined in sec-
vention State Grants will not exceed 50
percent of the allowable pollution pre- tion 502 of the Clean Water Act) and
vention State grant project cost. local government agencies under sec-
tion 104(b)(3) of the Act. These sections
WATER QUALITY COOPERATIVE do not govern Water Quality Coopera-
AGREEMENTS (SECTION 104(b)(3)) tive Agreements to other entities eligi-
ble under section 104(b)(3).
§ 35.360 Purpose. (b) Purpose of program. EPA awards
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Environmental Protection Agency § 35.408
assist in the development of new, or re- that those elements are consistent
finement of existing, wetlands protec- with 40 CFR part 35, subpart I.
tion and management programs. (2) Permit and planning grants. A
[66 FR 1734, Jan. 9, 2001, as amended at 79 FR State may use section 205(g) funds for
76055, Dec. 19, 2014] administering permit programs under
sections 402 and 404, including Munic-
§ 35.382 Competitive process. ipal Wastewater Pollution Prevention
State Wetlands Development Grants activities under an approved section
are awarded on a competitive basis. 402 program and State operator train-
EPA annually establishes a deadline ing programs, and for administering
for receipt of proposed grant project statewide waste treatment manage-
applications. EPA reviews applications ment planning programs, including the
and decides which grant projects to development of State biosolids man-
fund in a given year based on criteria agement programs, under section
established by EPA. After the competi- 208(b)(4). Some of these activities may
tive process is complete, the recipient
also be eligible for funding under sec-
can, at its discretion, accept the award
tions 106 (Water Pollution Control),
as a State Wetlands Development
Grant or add the funds to a Perform- 205(j)(2) (Water Quality Management
ance Partnership Grant. If the recipi- Planning), and 104(b)(3) (Water Quality
ent chooses to add the funds to a Per- Cooperative Agreements and Wetlands
formance Partnership Grant, the wet- Development Grants) of the Clean
lands development program work plan Water Act. (See §§ 35.160, 35.410, 35.360,
commitments must be included in the and 35.380.)
Performance Partnership Grant work (c) Associated program requirements.
plan. Program requirements for State con-
struction management activities under
§ 35.385 Maximum federal share. delegation are provided in 40 CFR part
EPA may provide up to 75 percent of 35, subparts I and J. Program require-
the approved work plan costs for the ments for water quality management
development or refinement of a wet- activities are provided in 40 CFR part
lands protection and management pro- 130.
gram.
§ 35.402 Allotment.
STATE ADMINISTRATION (SECTION 205(g))
Each State may reserve up to four
§ 35.400 Purpose. percent of the State’s authorized con-
(a) Purpose of section. Sections 35.400 struction grant allotment as deter-
through 35.408 govern State Adminis- mined by Congress or $400,000, which-
tration Grants to States (as defined in ever is greater, for section 205 (g)
section 502 of the Clean Water Act) au- grants.
thorized under section 205(g) of the
Act. § 35.405 Maintenance of effort.
(b) Purpose of program. EPA awards To receive funds under section 205(g),
these grants for the following two pur- a State agency must expend annually
poses: for recurrent section 106 program ex-
(1) Construction management grants. A penditures an amount of non-federal
State may use section 205(g) funds for funds at least equal to such expendi-
administering elements of the con- tures during fiscal year 1977, unless the
struction grant program under sections
Regional Administrator determines
201, 203, 204, and 212 of the Clean Water
that the reduction is attributable to a
Act and for managing waste treatment
construction grants for small commu- non-selective reduction of expenditures
nities. A State may also use construc- in State executive branch agencies (see
tion management assistance funds for § 35.165).
administering elements of a State’s
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§ 35.410 40 CFR Ch. I (7–1–21 Edition)
408
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Environmental Protection Agency § 35.501
(c) Unless the work plan submitted Stat. 1344, 1373 (1997); Pub. L. 105–276, 112
with the application shows that the ac- Stat. 2461, 2499 (1988).
tivities to be funded are coordinated, SOURCE: 66 FR 3795, Jan. 16, 2001, unless
as appropriate, with activities proposed otherwise noted.
for funding under section 106 (Water
Pollution Control) of the Clean Water GENERAL—ALL GRANTS
Act.
§ 35.500 Purpose of the subpart.
STATE RESPONSE PROGRAM GRANTS This subpart establishes administra-
(CERCLA SECTION 128(A)) tive requirements for all grants award-
ed to Indian Tribes and Intertribal
SOURCE: 74 FR 28444, June 16, 2009, unless Consortia for the environmental pro-
otherwise noted. grams listed in § 35.501. These provi-
sions supplement the EPA general as-
§ 35.419 Purpose. sistance regulations in 2 CFR parts 200
(a) Purpose of section. Sections 35.419 and 1500. Sections 35.500–518 contain ad-
through 35.421 govern State Response ministrative requirements that apply
Program Grants (as defined in section to all environmental program grants
128(a) of the Comprehensive Environ- included in this subpart. Sections 35.530
mental Response, Compensation, and through 35.718 contain requirements
Liability Act (CERCLA)). that apply to specified environmental
(b) Purpose of program. State Re- program grants. Many of these envi-
sponse Program Grants are awarded to ronmental programs also have pro-
States to establish or enhance the re- grammatic and technical requirements
sponse program of the State; capitalize that are published elsewhere in the
a revolving loan fund for Brownfield re- Code of Federal Regulations.
mediation under section 104(k)(3) of [66 FR 3795, Jan. 16, 2001, as amended at 79
CERCLA; or purchase insurance or de- FR 76055, Dec. 19, 2014]
velop a risk sharing pool, an indemnity
pool, or insurance mechanism to pro- § 35.501 Environmental programs cov-
vide financing for response actions ered by the subpart.
under a State response program. (a) The requirements in this subpart
apply to all grants awarded for the fol-
§ 35.420 Basis for allotment. lowing programs:
The Administrator allots response (1) Performance Partnership Grants
program funds to each EPA regional of- (1996 Omnibus Consolidated Rescissions
fice. Regional Administrators award and Appropriations Act of 1996, Pub. L.
funds to States based on their pro- 104–134; 110 Stat. 1321, 1321–299 (1996)
grammatic needs and applicable EPA and Departments of Veterans Affairs,
guidance. Housing and Urban Development, and
Independent Agencies Appropriations
§ 35.421 Maximum federal share. Act of 1998, Pub. L. 105–65; 111 Stat.
1344, 1373 (1997)).
The Regional Administrator may (2) The Indian Environmental Gen-
provide up to 100 percent of the ap- eral Assistance Program Act of 1992, 42
proved work plan costs with the excep- U.S.C. 4368b.
tion of the cost shares required by (3) Clean Air Act. Air pollution con-
CERCLA 104(k)(9)(B)(iii) for capitaliza- trol (section 105).
tion of revolving loan funds under (4) Clean Water Act.
CERCLA 104(k)(3). (i) Water pollution control (section
106 and 518).
Subpart B—Environmental (ii) Water quality cooperative agree-
Program Grants for Tribes ments (section 104(b)(3)).
(iii) Wetlands development grant pro-
AUTHORITY: 42 U.S.C. 7401 et seq.; 33 U.S.C.
gram (section 104(b)(3)).
1251 et seq.; 42 U.S.C. 300f et seq.; 42 U.S.C. 6901 (iv) Nonpoint source management
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§ 35.502 40 CFR Ch. I (7–1–21 Edition)
410
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Environmental Protection Agency § 35.504
measurable during a grant funding pe- Work plan. The document which iden-
riod. See ‘‘outcome.’’ tifies how and when the applicant will
Performance Partnership Grant. A sin- use funds from environmental program
gle grant combining funds from more grants and is the basis for management
than one environmental program. A and evaluation of performance under
Performance Partnership Grant may the grant agreement to produce spe-
provide for administrative savings or cific outputs and outcomes (see 35.507).
programmatic flexibility to direct The work plan must be consistent with
grant resources where they are most applicable federal statutes; regula-
needed to address public health and en- tions; circulars; executive orders; and
vironmental priorities (see also EPA delegations, approvals, or author-
§ 35.530). Each Performance Partnership izations.
Grant has a single, integrated budget Work plan commitments. The outputs
and recipients do not need to account and outcomes associated with each
for grant funds in accordance with the work plan component, as established in
funds’ original environmental program the grant agreement.
Work plan component. A negotiated
sources.
set or group of work plan commitments
Planning target. The amount of funds established in the grant agreement. A
that the Regional Administrator sug- work plan may have one or more work
gests a grant applicant consider in de- plan components.
veloping its application, including the
work plan, for an environmental pro- § 35.503 Deviation from this subpart.
gram. EPA will consider and may approve
Regional supplemental guidance. Guid- requests for an official deviation from
ance to environmental program grant non-statutory provisions of this regula-
applicants prepared by the Regional tion in accordance with 2 CFR 1500.3.
Administrator, based on the national
program guidance and specific regional [79 FR 76055, Dec. 19, 2014]
and applicant circumstances, for use in § 35.504 Eligibility of an Intertribal
preparing a grant application. Consortium.
Tribal Environmental Agreement
(a) An Intertribal Consortium is eli-
(TEA). A dynamic, strategic planning
gible to receive grants under the au-
document negotiated by the Regional
thorities listed in § 35.501 only if the
Administrator and an appropriate Trib- Consortium demonstrates that all
al official. A Tribal Environmental members of the Consortium meet the
Agreement may include: Long-term eligibility requirements for the grant
and short-term environmental goals, and authorize the Consortium to apply
objectives, and desired outcomes based for and receive assistance in accord-
on Tribal priorities and available fund- ance with paragraph (c) of this section,
ing. A Tribal Environmental Agree- except as provided in paragraph (b) of
ment can be a very general or specific this section.
document that contains budgets, per- (b) An Intertribal Consortium is eli-
formance measures, outputs and out- gible to receive a grant under the In-
comes that could be used as part or all dian Environmental General Assist-
of a Performance Partnership Grant ance Program Act, in accordance with
work plan, if it meets the requirements § 35.540, if the Consortium demonstrates
of section 35.507(b). that:
Tribe. Except as otherwise defined in (1) A majority of its members meets
statute or this subpart, Indian Tribal the eligibility requirements for the
Government (Tribe) means: Any Indian grant;
Tribe, band, nation, or other organized (2) All members that meet the eligi-
group or community, including any bility requirements authorize the Con-
Alaska Native village, which is recog- sortium to apply for and receive assist-
nized as eligible by the United States ance; and
Department of the Interior for the spe- (3) It has adequate accounting con-
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cial services provided by the United trols to ensure that only members that
States to Indians because of their sta- meet the eligibility requirements will
tus as Indians. benefit directly from the grant project
411
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§ 35.505 40 CFR Ch. I (7–1–21 Edition)
and will receive and manage grant (2) National program guidance. If an
funds, and the Consortium agrees to a applicant proposes a work plan that
grant condition to that effect. differs significantly from the goals and
(c) An Intertribal Consortium must objectives, priorities, or performance
submit to EPA adequate documenta- measures in the national program guid-
tion of: ance associated with the proposed work
(1) The existence of the partnership plan activities, the Regional Adminis-
between Indian Tribal governments, trator must consult with the appro-
and priate National Program Manager be-
(2) Authorization of the Consortium fore agreeing to the work plan.
by all its members (or in the case of (3) Use of existing guidance. An appli-
the General Assistance Program, all cant should base the grant application
members that meet the eligibility re- on the national program guidance in
quirements for a General Assistance place at the time the application is
Program grant) to apply for and re- being prepared.
ceive the grant(s) for which the Consor- (b) Work plan requirements. (1) The
tium has applied. work plan is the basis for the manage-
ment and evaluation of performance
PREPARING AN APPLICATION under the grant agreement.
(2) An approvable work plan must
§ 35.505 Components of a complete ap- specify:
plication. (i) The work plan components to be
A complete application for an envi- funded under the grant;
ronmental program grant must: (ii) The estimated work years and es-
(a) Meet the requirements in 2 CFR timated funding amounts for each
part 200, subpart C. work plan component;
(b) Include a proposed work plan (iii) The work plan commitments for
(§ 35.507 of this subpart); and each work plan component, and a time
(c) Specify the environmental pro- frame for their accomplishment;
gram and the amount of funds re- (iv) A performance evaluation proc-
quested. ess and reporting schedule in accord-
ance with § 35.515 of this subpart; and
[66 FR 3795, Jan. 16, 2001, as amended at 79 (v) The roles and responsibilities of
FR 76055, Dec. 19, 2014] the recipient and EPA in carrying out
the work plan commitments.
§ 35.506 Time frame for submitting an (3) The work plan must be consistent
application.
with applicable federal statutes; regu-
An applicant should submit a com- lations; circulars; executive orders; and
plete application to EPA at least 60 delegations, approvals, or authoriza-
days before the beginning of the pro- tions.
posed funding period. (c) Tribal Environmental Agreement as
work plan. An applicant may use a
§ 35.507 Work plans. Tribal Environmental Agreement or a
(a) Bases for negotiating work plans. portion of the Tribal Environmental
The work plan is negotiated between Agreement as the work plan or part of
the applicant and the Regional Admin- the work plan for an environmental
istrator and reflects consideration of program grant if the portion of the
national, regional, and Tribal environ- Tribal Environmental Agreement that
mental and programmatic needs and is to serve as the grant work plan:
priorities. (1) Is clearly identified as the grant
(1) Negotiation considerations. In nego- work plan and distinguished from other
tiating the work plan, the Regional Ad- portions of the Tribal Environmental
ministrator and applicant will consider Agreement; and
such factors as national program guid- (2) Meets the requirements in
ance; any regional supplemental guid- § 35.507(b).
ance; goals, objectives, and priorities
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Environmental Protection Agency § 35.513
413
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§ 35.514 40 CFR Ch. I (7–1–21 Edition)
in writing. A recipient will not approve quired evaluations are performed ac-
any work plan or budget revision which cording to the negotiated schedule and
is inconsistent with the purpose or that copies of evaluation reports are
414
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Environmental Protection Agency § 35.532
placed in the official files and provided Housing and Urban Development, and
to the recipient. Independent Agencies Appropriations
[66 FR 3795, Jan. 16, 2001, as amended at 79
Act, 1998 (Pub. L. 105–65; 111 Stat. 1344,
FR 76055, Dec. 19, 2014] 1373 (1997)).
(b) Purpose of program. Performance
§ 35.516 Direct implementation. Partnership Grants enable Tribes and
If funds for an environmental pro- Intertribal Consortia to combine funds
gram remain after Tribal and Inter- from more than one environmental
tribal Consortia environmental pro- program grant into a single grant with
gram grants for that program have a single budget. Recipients do not need
been awarded or because no grants to account for Performance Partner-
were awarded, the Regional Adminis- ship Grant funds in accordance with
trator may, subject to any limitations the funds’ original environmental pro-
contained in appropriation acts, use all gram sources; they need only account
or part of the funds to support a federal for total Performance Partnership
program required by law in the absence Grant expenditures. Subject to the re-
of an acceptable Tribal program. quirements of this subpart, the Per-
formance Partnership Grant program
§ 35.517 Unused funds. is designed to:
If funds for an environmental pro- (1) Strengthen partnerships between
gram remain after Tribal and Inter- EPA and Tribes and Intertribal Con-
tribal Consortia grants for that pro- sortia through joint planning and pri-
gram have been awarded or because no ority setting and better deployment of
grants were awarded, and the Regional resources;
Administrator does not use the funds (2) Provide Tribes and Intertribal
under § 35.516 of this subpart, the Re- Consortia with flexibility to direct re-
gional Administrator may award the sources where they are most needed to
funds to any eligible Indian Tribe or address environmental and public
Intertribal Consortium in the region health priorities;
(including a Tribe or Intertribal Con- (3) Link program activities more ef-
sortium that has already received fectively with environmental and pub-
funds) for the same environmental pro- lic health goals and program outcomes;
gram or for a Performance Partnership (4) Foster development and imple-
Grant, subject to any limitations in ap- mentation of innovative approaches,
propriation acts. such as pollution prevention, eco-
system management, and community-
§ 35.518 Unexpended balances. based environmental protection strate-
Subject to any relevant provisions of gies; and
law, if a recipient’s final Financial Sta- (5) Provide savings by streamlining
tus Report shows unexpended balances, administrative requirements.
the Regional Administrator will § 35.532 Requirements summary.
deobligate the unexpended balances
and make them available, either to the (a) Applicants and recipients of Per-
same recipient or other Tribes or Inter- formance Partnership Grants must
tribal Consortia in the region, for envi- meet:
ronmental program grants. (1) The requirements in §§ 35.500 to
35.518 of this subpart which apply to all
PERFORMANCE PARTNERSHIP GRANTS environmental program grants, includ-
ing Performance Partnership Grants;
§ 35.530 Purpose of Performance Part- and
nership Grants. (2) The requirements in §§ 35.530 to
(a) Purpose of section. Sections 35.530 35.538 of this subpart which apply only
through 35.538 govern Performance to Performance Partnership Grants.
Partnership Grants to Tribes and (b) In order to include funds from an
Intertribal Consortia authorized in the environmental program grant listed in
Omnibus Consolidated Rescissions and § 35.501(a) of this subpart in a Perform-
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§ 35.533 40 CFR Ch. I (7–1–21 Edition)
which funds are included in the Per- program grants listed in § 35.501(a) in
formance Partnership Grant, except accordance with the requirements for
the requirements at §§ 35.548(c), those environmental programs.
35.638(b) and (c), 35.691, and 35.708 (c), (b) For grants to Tribes, a Tribal
(d), (e), and (g). These requirements agency must be designated by a Tribal
can be found in this regulation begin- government or other authorized Tribal
ning at § 35.540. If the applicant is an process to receive grants under each of
Intertribal Consortium, each Tribe the environmental programs to be com-
that is a member of the Consortium bined in the Performance Partnership
must meet the requirements.
Grant.
(3) Apply for the environmental pro-
gram grant. § 35.535 Activities eligible for funding.
(4) Obtain the Regional Administra-
tor’s approval of the application for (a) Delegated, approved, or authorized
that grant. activities. A Tribe or Intertribal Consor-
(c) If funds from an environmental tium may use Performance Partnership
program are not included in a Perform- Grant funds to carry out EPA-dele-
ance Partnership Grant, an applicant is gated, EPA-approved, or EPA-author-
not required to meet the eligibility re- ized activities, such as permitting and
quirements for that environmental pro- primary enforcement responsibility
gram grant in order to carry out ac- only if the Tribe or each member of the
tivities eligible under that program as Intertribal Consortium receives from
provided in § 35.535. the Regional Administrator the delega-
tions, approvals, or authorizations to
§ 35.533 Programs eligible for inclu-
sion. conduct such activities.
(b) Other program activities. Except for
(a) Eligible programs. Except as pro- the limitation in paragraph (a) of this
vided in paragraph (b) of this section,
section, a Tribe or Intertribal Consor-
the environmental programs eligible
tium may use Performance Partnership
for inclusion in a Performance Partner-
Grant funds for any activity that is eli-
ship Grant are listed in § 35.101(a)(2)
gible under the environmental pro-
through (10) of this subpart. Funds
grams listed in § 35.501(a) of this sub-
awarded to tribes under Tribal Re-
sponse Program Grants (§ 35.101(a)(10)) part, as determined by the Regional
to capitalize a revolving loan fund for Administrator. If an applicant proposes
Brownfield remediation or purchase in- a Performance Partnership Grant work
surance or develop a risk sharing pool, plan that differs significantly from any
an indemnity pool, or insurance mech- of the proposed work plans approved
anism to provide financing for response for funding that the applicant now pro-
actions may not be included in Per- poses to move into a Performance
formance Partnership Grants. Partnership Grant, the Regional Ad-
(b) Changes in eligible programs. The ministrator must consult with the ap-
Administrator may, in guidance or reg- propriate National Program Managers
ulation, describe subsequent additions, before agreeing to the Performance
deletions, or changes to the list of en- Partnership Grant work plan. National
vironmental programs eligible for in- Program Managers may expressly
clusion in Performance Partnership waive or modify this requirement for
Grants. consultation in national program guid-
ance. National Program Managers also
[66 FR 3795, Jan. 16, 2001, as amended at 74
FR 28444, June 16, 2009] may define in national program guid-
ance ‘‘significant’’ differences from a
§ 35.534 Eligible recipients. work plan submitted with a Tribe’s or
(a) A Tribe or Intertribal Consortium a Consortium’s application for funds.
is eligible for a Performance Partner-
§ 35.536 Cost share requirements.
ship Grant if the Tribe or each member
of the Intertribal Consortium is eligi- (a) The Performance Partnership
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ble for, and the Tribe or Intertribal Grant cost share shall be the sum of
Consortium receives funding from, the amounts required for each environ-
more than one of the environmental mental program grant included in the
416
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Environmental Protection Agency § 35.548
417
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§ 35.570 40 CFR Ch. I (7–1–21 Edition)
not less than $75,000. This limitation in the grant award or an amendment
does not apply to additional funds that thereto.
may become available for award to the
same Tribe or Intertribal Consortium. § 35.573 Eligible Tribe.
(b) The Regional Administrator shall (a) A Tribe is eligible to receive sec-
not award a grant to a single Tribe or tion 105 financial assistance under
Intertribal Consortium of more than 10 §§ 35.570 through 35.578 if it has dem-
percent of the total annual funds ap- onstrated eligibility to be treated as a
propriated under the Act.
State under 40 CFR 49.6. An Intertribal
(c) The project period of a General
Consortium consisting of Tribes that
Assistance Program award may not ex-
have demonstrated eligibility to be
ceed four years.
treated as States under 40 CFR 49.6 is
(d) No award under this program
shall result in reduction of total EPA also eligible for financial assistance.
grants for environmental programs to (b) Tribes that have not made a dem-
the recipient. onstration under 40 CFR 49.6 and Inter-
tribal Consortia consisting of Tribes
AIR POLLUTION CONTROL (SECTION 105) that have not demonstrated eligibility
to be treated as States under 40 CFR
§ 35.570 Purpose. 49.6 are eligible for financial assistance
(a) Purpose of section. Sections 35.570 under sections 105 and 302(b)(5) of the
through 35.578 govern air pollution con- Clean Air Act.
trol grants to Tribes (as defined in sec-
tion 302(r) of the Clean Air Act (CAA)) § 35.575 Maximum federal share.
authorized under sections 105 and 301(d) (a) For Tribes and Intertribal Con-
of the Act and Intertribal Consortia. sortia eligible under § 35.573(a), the Re-
(b) Purpose of program. Air pollution gional Administrator may provide fi-
control grants are awarded to develop nancial assistance in an amount up to
and administer programs that prevent 95 percent of the approved costs of
and control air pollution or implement
planning, developing, establishing, or
national air quality standards for air
improving an air pollution control pro-
resources within the exterior bound-
gram, and up to 95 percent of the ap-
aries of the reservation or other areas
proved costs of maintaining that pro-
within the Tribe’s jurisdiction.
(c) Associated program regulations. gram. After two years from the date of
Refer to 40 CFR parts 49, 50, 51, 52, 58, each Tribe’s or Intertribal Consor-
60, 61, 62, and 81 for associated program tium’s initial grant award, the Re-
regulations. gional Administrator will reduce the
maximum federal share to 90 percent if
§ 35.572 Definitions. the Regional Administrator determines
In addition to the definitions in that the Tribe or each member of the
§ 35.502, the following definitions apply Intertribal Consortium meets certain
to the Clean Air Act’s section 105 grant economic indicators that would provide
program: an objective assessment of the Tribe’s
Nonrecurrent expenditures are those or each of the Intertribal Consortiums
expenditures which are shown by the member’s ability to increase its share.
recipient to be of a nonrepetitive, un- For a Tribe or Intertribal Consortium
usual, or singular nature such as would eligible under § 35.573(a), the Regional
not reasonably be expected to recur in Administrator may increase the max-
the foreseeable future. Costs cat- imum federal share if the Tribe or
egorized as nonrecurrent must be ap- Intertribal Consortium can dem-
proved in the grant agreement or an onstrate in writing to the satisfaction
amendment thereto. of the Regional Administrator that fis-
Recurrent expenditures are those ex- cal circumstances within the Tribe or
penses associated with the activities of within the member Tribes of the Inter-
a continuing environmental program. tribal Consortium are constrained to
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All expenditures are considered recur- such an extent that fulfilling the
rent unless justified by the applicant match requirement would impose
as nonrecurrent and approved as such undue hardship.
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Environmental Protection Agency § 35.583
(b) For Tribes and Intertribal Con- award Section 105 funds unless the ap-
sortia eligible under § 35.573(b), the Re- plicant provides assurance that the
gional Administrator may provide fi- grant will not supplant non-federal
nancial assistance in an amount up to funds that would otherwise be avail-
60 percent of the approved costs of able for maintaining the Section 105
planning, developing, establishing, or program.
improving an air pollution control pro-
gram, and up to 60 percent of the ap- § 35.578 Award limitation.
proved costs of maintaining that pro- The Regional Administrator will not
gram. disapprove an application for, or termi-
(c) Revenue collected under a Tribal nate or annul an award of, financial as-
Title V operating permit program may sistance under § 35.573 without prior no-
not be used to meet the cost share re- tice and opportunity for a public hear-
quirements of this section. ing within the appropriate jurisdiction
or, where more than one area is af-
§ 35.576 Maintenance of effort. fected, within one of the affected areas
(a) For Tribes and Intertribal Con- within the jurisdiction
sortia that are eligible for financial as-
sistance under § 35.573(b) of this sub- WATER POLLUTION CONTROL (SECTIONS
part, the Tribe or each of the Inter- 106 AND 518)
tribal Consortium’s members must ex-
§ 35.580 Purpose.
pend annually, for recurrent Section
105 program expenditures, an amount (a) Purpose of section. Sections 35.580
of non-federal funds at least equal to through 35.588 govern water pollution
such expenditures during the preceding control grants to eligible Tribes and
fiscal year. Intertribal Consortia (as defined in
(1) In order to award grants in a § 35.502) authorized under sections 106
timely manner each fiscal year, the Re- and 518 of the Clean Water Act.
gional Administrator shall compare a (b) Purpose of program. Water pollu-
Tribe’s or each of the Intertribal Con- tion control grants are awarded to as-
sortium’s member’s proposed expendi- sist Tribes and Intertribal Consortia in
ture level, as detailed in the grant ap- administering programs for the preven-
plication, to its expenditure level in tion, reduction, and elimination of
the second preceding fiscal year. When water pollution, including programs for
expenditure data for the preceding fis- the development and implementation
cal year is complete, the Regional Ad- of ground-water protection strategies.
ministrator shall use this information (c) Associated program requirements.
to determine the Tribe’s or Intertribal Program requirements for water qual-
Consortium’s compliance with its ity planning and management activi-
maintenance of effort requirement. ties are provided in 40 CFR part 130.
(2) If expenditure data for the pre-
ceding fiscal year shows that a Tribe or § 35.582 Definitions.
Intertribal Consortium did not meet Federal Indian reservation. All land
the requirements of paragraph (a) of within the limits of any Indian reserva-
this section, the Regional Adminis- tion under the jurisdiction of the
trator will take action to recover the United States Government, notwith-
grant funds for that year. standing the issuance of any patent,
(3) The Regional Administrator may and, including rights-of-way running
grant an exception to § 35.576(a) if, after through the reservation.
notice and opportunity for a public Tribe. Any Indian Tribe, band, group,
hearing, the Regional Administrator or community recognized by the Sec-
determines that a reduction in expendi- retary of the Interior, exercising gov-
tures is attributable to a non-selective ernmental authority over a federal In-
reduction of all the Tribe’s or each of dian reservation.
the Intertribal Consortium’s member’s
programs. § 35.583 Eligible recipients.
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§ 35.585 40 CFR Ch. I (7–1–21 Edition)
the Indian Tribe or each member of the (b) A Tribe or Intertribal Consortium
Intertribal Consortium meets the re- is eligible to receive a section 106 grant
quirements for treatment in a manner or section 106 grant funds even if the
similar to a State under section 518(e) Tribe or each of the members of an
of the Clean Water Act (see 40 CFR Intertribal Consortium does not meet
130.6(d)). the requirements of section 106(e)(1)
and 106(f)(1) of the Clean Water Act.
§ 35.585 Maximum federal share.
[66 FR 3795, Jan. 16, 2001, as amended at 79
(a) The Regional Administrator may FR 76055, Dec. 19, 2014]
provide up to 95 percent of the ap-
proved work plan costs for Tribes or WATER QUALITY COOPERATIVE
Intertribal Consortia establishing a AGREEMENTS (SECTION 104(b)(3))
section 106 program. Work plan costs
include costs of planning, developing, § 35.600 Purpose.
establishing, improving or maintaining (a) Purpose of section. Sections 35.600
a water pollution control program. through 35.604 govern Water Quality
(b) The Regional Administrator may Cooperative Agreements to Tribes and
increase the maximum federal share if Intertribal Consortia authorized under
the Tribe or Intertribal Consortium section 104(b)(3) of the Clean Water
can demonstrate in writing to the sat- Act. These sections do not govern
isfaction of the Regional Adminis- Water Quality Cooperative Agreements
trator that fiscal circumstances within under section 104(b)(3) to organizations
the Tribe or within each Tribe that is that do not meet the definitions of
a member of an Intertribal Consortium Tribe or Intertribal Consortium in
are constrained to such an extent that § 35.502.
fulfilling the match requirement would (b) Purpose of program. EPA awards
impose undue hardship. Water Quality Cooperative Agreements
for investigations, experiments, train-
§ 35.588 Award limitations. ing, demonstrations, surveys, and stud-
(a) The Regional Administrator will ies relating to the causes, effects, ex-
only award section 106 funds to a Tribe tent, prevention, reduction, and elimi-
or Intertribal Consortium if: nation of water pollution. EPA issues
(1) All monitoring and analysis ac- guidance each year advising EPA re-
tivities performed by the Tribe or gions and headquarters regarding ap-
Intertribal Consortium meets the ap- propriate priorities for funding for this
plicable quality assurance and quality program. This guidance may include
control requirements in 2 CFR 1500.11. such focus areas as National Pollutant
(2) The Tribe or each member of the Discharge Elimination System water-
Intertribal Consortium has emergency shed permitting, urban wet weather
power authority comparable to that in programs, or innovative pretreatment
section 504 of the Clean Water Act and programs and biosolids projects.
adequate contingency plans to imple- [66 FR 3795, Jan. 16, 2001, as amended at 79
ment such authority. FR 76055, Dec. 19, 2014]
(3) EPA has not assumed enforcement
as defined in section 309(a)(2) of the § 35.603 Competitive process.
Clean Water Act in the Tribe’s or any EPA will award water quality cooper-
Intertribal Consortium member’s juris- ative agreement funds through a com-
diction. petitive process in accordance with na-
(4) The Tribe or Intertribal Consor- tional program guidance. After the
tium agrees to include a discussion of competitive process is complete, the
how the work performed under section recipient can, at its discretion, accept
106 addressed water quality problems the award as a separate cooperative
on Tribal lands in the annual report re- agreement or add the funds to a Per-
quired under § 35.515(d). formance Partnership Grant. If the re-
(5) After an initial award of section cipient chooses to add the funds to a
106 funds, the Tribe or Intertribal Con- Performance Partnership Grant, the
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Environmental Protection Agency § 35.635
421
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§ 35.636 40 CFR Ch. I (7–1–21 Edition)
422
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Environmental Protection Agency § 35.661
423
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§ 35.662 40 CFR Ch. I (7–1–21 Edition)
424
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Environmental Protection Agency § 35.685
425
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§ 35.686 40 CFR Ch. I (7–1–21 Edition)
(b) The Regional Administrator may pires, the Regional Administrator shall
increase the maximum federal share if not award section 1443(b) funds to an
the Tribe or Intertribal Consortium Indian Tribe unless the Tribe has as-
can demonstrate in writing to the sat- sumed primary enforcement responsi-
isfaction of the Regional Adminis- bility for the underground water source
trator that fiscal circumstances within protection program.
the Tribe or Consortium are con-
strained to such an extent that ful- LEAD-BASED PAINT PROGRAM (SECTION
filling the match requirement would 404(g))
impose undue hardship, except that the
§ 35.690 Purpose.
federal share shall not be greater than
90 percent. (a) Purpose of section. Sections 35.690
through 35.693 govern grants to Tribes
§ 35.686 Eligible recipients. and Intertribal Consortia under section
A Tribe or Intertribal Consortium is 404(g) for the Toxic Substances Control
eligible to apply for an underground Act .
water source protection grant if the (b) Purpose of program. Lead-Based
Tribe or each member of the Inter- Paint Program grants are awarded to
tribal Consortium meets the following develop and carry out authorized pro-
criteria: grams to ensure that individuals em-
(a) The Tribe or each member of the ployed in lead-based paint activities
Intertribal Consortium is recognized by are properly trained; that training pro-
the Secretary of the Interior; grams are accredited; and that contrac-
(b) The Tribe or each member of the tors employed in such activities are
Intertribal Consortium has a governing certified.
body carrying out substantial govern- (c) Associated program regulations. As-
mental duties and powers over any sociated program regulations are found
area; in 40 CFR part 745.
(c) The functions to be exercised
under the grant are within the area of § 35.691 Funding coordination.
the Tribal government’s jurisdiction; Recipients must use the Lead-Based
and Paint program funding in a way that
(d) The Tribe or each member of the complements any related assistance
Intertribal Consortium is reasonably they receive from other federal sources
expected to be capable, in the Regional for lead-based paint activities.
Administrator’s judgment, of carrying
out the functions to be exercised under § 35.693 Eligible recipients.
the grant. (a) The Regional Administrator will
treat a Tribe or Intertribal Consortium
§ 35.688 Award limitations. as eligible to apply for a Lead-Based
(a) Initial grants. The Regional Ad- Paint Program grant if the Tribe or
ministrator will not make an initial each member of the Intertribal Consor-
award unless the Tribe or each member tium:
of the Intertribal Consortium has: (1) Is recognized by the Secretary of
(1) Met the requirements of § 35.676 the Interior;
(Eligible recipients); and (2) Has an existing government exer-
(2) Established an approved under- cising substantial governmental duties
ground water source protection pro- and powers;
gram or agrees to establish an approv- (3) Has adequate authority to carry
able program within four years of the out the grant activities; and
initial award. (4) Is reasonably expected to be capa-
(b) Subsequent grants. The Regional ble, in the Regional Administrator’s
Administrator will not make a subse- judgment, of administering the grant
quent grant, after the initial award, program.
unless the Tribe can demonstrate rea- (b) If the Administrator has pre-
sonable progress towards assuming pri- viously determined that an Indian
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426
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Environmental Protection Agency § 35.705
need provide only that information (x) A toll-free radon hotline to pro-
unique to the Lead-Based Paint Pro- vide information and technical assist-
gram required by paragraphs (b)(3) and ance.
(4) of this section. (2) In implementing paragraphs
(b)(1)(iv) and (ix) of this section, a
INDOOR RADON GRANTS (SECTION 306) Tribe or Intertribal Consortia should
make every effort, consistent with the
§ 35.700 Purpose. goals and successful operation of the
(a) Purpose of section. Sections 35.700 Tribal Indoor Radon program, to give
through 35.708 govern Indoor Radon preference to low-income persons.
Grants to Tribes and Intertribal Con-
sortia under section 306 of the Toxic § 35.702 Basis for allotment.
Substances Control Act. (a) The Regional Administrator will
(b) Purpose of program. (1) Indoor allot Indoor Radon Grant funds based
Radon Grants are awarded to assist on the criteria in EPA guidance in ac-
Tribes and Intertribal Consortia with cordance with section 306(d) and (e) of
the development and implementation the Toxic Substances Control Act.
of programs that assess and mitigate (b) No Tribe or Intertribal Consor-
radon and that aim at reducing radon tium may receive an Indoor Radon
health risks. Indoor Radon Grant funds Grant in excess of 10 percent of the
may be used for the following eligible total appropriated amount made avail-
activities. able each fiscal year.
(i) Survey of radon levels, including
special surveys of geographic areas or § 35.703 Eligible recipients.
classes of buildings (such as public (a) The Regional Administrator will
buildings, school buildings, high-risk treat a Tribe or Intertribal Consortium
residential construction types); as eligible to apply for an Indoor Radon
(ii) Development of public informa- Grant if the Tribe or each member of
tion and education materials con- the Intertribal Consortium:
cerning radon assessment, mitigation, (1) Is recognized by the Secretary of
and control programs; the Interior;
(iii) Implementation of programs to (2) Has an existing government exer-
control radon on existing and new cising substantial governmental duties
structures; and powers;
(iv) Purchase, by the Tribe or Inter- (3) Has adequate authority to carry
tribal Consortium of radon measure- out the grant activities; and,
ment equipment and devices; (4) Is reasonably expected to be capa-
(v) Purchase and maintenance of ana- ble, in the Regional Administrator’s
lytical equipment connected to radon judgment, of administering the grant
measurement and analysis, including program.
costs of calibration of such equipment; (b) If the Administrator has pre-
(vi) Payment of costs of Environ- viously determined that a Tribe has
mental Protection Agency-approved met the prerequisites in paragraphs
training programs related to radon for (a)(1) and (2) of this section for another
permanent Tribal employees; EPA program, the Tribe need provide
(vii) Payment of general overhead only that information unique to the
and program administration costs; radon grant program required by para-
(viii) Development of a data storage graphs (a)(3) and (4) of this section.
and management system for informa-
tion concerning radon occurrence, lev- § 35.705 Maximum federal share.
els, and programs; The Regional Administrator may
(ix) Payment of costs of demonstra- provide Tribes and Intertribal Con-
tion of radon mitigation methods and sortia up to 75 percent of the approved
technologies as approved by EPA, in- costs for the development and imple-
cluding Tribal and Intertribal Con- mentation of radon program activities
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sortia participation in the Environ- incurred by the Tribe in the first year
mental Protection Agency Home Eval- of a grant to the Tribe or Consortium;
uation Program; and 60 percent in the second year; and 50
427
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§ 35.708 40 CFR Ch. I (7–1–21 Edition)
percent in the third and each year be used to cover the costs of the Tribal
thereafter. proficiency rating programs.
§ 35.708 Award limitations. TOXIC SUBSTANCES COMPLIANCE
(a) The Regional Administrator shall MONITORING (SECTION 28)
consult with the Tribal agency which
§ 35.710 Purpose.
has the primary responsibility for
radon programs as designated by the (a) Purpose of section. Sections 35.710
affected Tribe before including Indoor through 35.715 govern Toxic Substances
Radon Grant funds in a Performance Compliance Monitoring grants to
Partnership Grant with another Tribal Tribes and Intertribal Consortia under
agency. section 28 of the Toxic Substances Con-
(b) No grant may be made in any fis- trol Act.
cal year to a Tribe or Intertribal Con- (b) Purpose of program. Toxic Sub-
sortium which did not satisfactorily stances Compliance Monitoring grants
implement the activities funded by the are awarded to establish and operate
most recent grant awarded to the Tribe compliance monitoring programs to
or Intertribal Consortium for an Indoor prevent or eliminate unreasonable
Radon program. risks to health or the environment as-
(c) The costs of radon measurement sociated with chemical substances or
equipment or devices (see mixtures on Tribal lands with respect
§ 35.820(b)(1)(iv)) and demonstration of to which the Administrator is unable
radon mitigation, methods, and tech- or not likely to take action for their
nologies (see § 35.820(b)(1)(ix)) shall not, prevention or elimination.
in aggregate, exceed 50 percent of a (c) Associated program regulations.
Tribe’s or Intertribal Consortium’s Refer to 40 CFR parts 700 through 799
radon grant award in a fiscal year. for associated program regulations.
(d) The costs of general overhead and
§ 35.712 Competitive process.
program administration (see
§ 35.820(b)(1)(vii)) of an indoor radon EPA will award Toxic Substances
grant shall not exceed 25 percent of the Control Act Compliance Monitoring
amount of a Tribe’s or Intertribal Con- grants to Tribes or Intertribal Con-
sortium’s Indoor Radon Grant in a fis- sortia through a competitive process in
cal year. accordance with national program
(e) A Tribe or Intertribal Consortium guidance.
may use funds for financial assistance
to persons only to the extent such as- § 35.713 Eligible recipients.
sistance is related to demonstration (a) The Regional Administrator will
projects or the purchase and analysis treat a Tribe or Intertribal Consortium
of radon measurement devices. as eligible to apply for a Toxic Sub-
(f) Recipients must provide the Re- stances Compliance Monitoring grant
gional Administrator all radon-related if the Tribe or each member of the
information generated in its grant sup- Intertribal Consortium:
ported activities, including the results (1) Is recognized by the Secretary of
of radon surveys, mitigation dem- the Interior;
onstration projects, and risk commu- (2) Has an existing government exer-
nication studies. cising substantial governmental duties
(g) Recipients must maintain and and powers;
make available to the public, a list of (3) Has adequate authority to carry
firms and individuals that have re- out the grant activities; and,
ceived a passing rating under the EPA (4) Is reasonably expected to be capa-
proficiency rating program under sec- ble, in the Regional Administrator’s
tion 305(a)(2) of the Act. judgment, of administering the grant
(h) Funds appropriated for section 306 program.
may not be used to cover the costs of (b) If the Administrator has pre-
federal proficiency rating programs viously determined that an Indian
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under section 305(a)(2) of the Act. Tribe has met the prerequisites in
Funds appropriated for section 306 and paragraphs (a)(1) and (2) of this section
grants awarded under section 306 may for another EPA program, the Tribe
428
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Environmental Protection Agency § 35.736
429
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§ 35.737 40 CFR Ch. I (7–1–21 Edition)
a revolving loan fund for brownfield re- ment regulation (2 CFR part 1532), and
mediation under section 104(k)(3) of establishes requirements for Federal
CERCLA; or purchase insurance or de- grant assistance for the building of
velop a risk sharing pool, an indemnity wastewater treatment works. EPA may
pool, or insurance mechanism to pro- also find it necessary to publish other
vide financing for response actions requirements applicable to the con-
under a Tribal response program. struction grants program in response
to Congressional action and executive
§ 35.737 Basis for allotment. orders.
The Administrator allots response (c) EPA’s policy is to delegate admin-
program funds to each EPA regional of- istration of the construction grants
fice. Regional Administrators award program on individual projects to
funds to Tribes based on their pro- State agencies to the maximum extent
grammatic needs and applicable EPA possible. Throughout this subpart we
guidance. have used the term Regional Adminis-
trator. To the extent that the Regional
§ 35.738 Maximum federal share. Administrator delegates review of
The Regional Administrator may projects for compliance with the re-
provide up to 100 percent of the ap- quirements of this subpart to a State
proved work plan costs with the excep- agency under a delegation agreement
tion of the cost shares required by (§ 35.1030), the term Regional Adminis-
CERCLA 104(k)(9)(B)(iii) for capitaliza- trator may be read State agency.
tion of revolving loan funds under (d) In accordance with the Federal
CERCLA 104(k)(3). Grant and Cooperative Agreement Act
(Pub. L. 95–224) EPA will, when sub-
Subparts C–H [Reserved] stantial Federal involvement is antici-
pated, award assistance under coopera-
tive agreements. Throughout this sub-
Subpart I—Grants for Construction part we have used the terms grant and
of Treatment Works grantee but those terms may be read
cooperative agreement and recipient if
AUTHORITY: Secs. 101(e), 109(b), 201 through appropriate.
205, 207, 208(d), 210 through 212, 215 through (e) From time to time EPA publishes
219, 304(d)(3), 313, 501, 502, 511 and 516(b) of the
technical and guidance materials on
Clean Water Act, as amended, 33 U.S.C. 1251
et seq. various topics relevant to the construc-
tion grants program. Grantees may
SOURCE: 49 FR 6234, Feb. 17, 1984, unless find this information useful in meeting
otherwise noted.
requirements in this subpart. These
§ 35.2000 Purpose and policy. publications, including the MCD and
FRD series, may be ordered from: EPA,
(a) The primary purpose of Federal 1200 Pennsylvania Ave., NW., room 1115
grant assistance available under this ET, WH 547, Washington, DC 20460. In
subpart is to assist municipalities in order to expedite processing of re-
meeting enforceable requirements of quests, persons wishing to obtain these
the Clean Water Act, particularly, ap- publications should request a copy of
plicable National Pollutant Discharge EPA form 7500–21 (the order form list-
Elimination System (NPDES) permit ing all available publications), from
requirements. EPA Headquarters, Municipal Con-
(b) This subpart supplements EPA’s struction Division (WH–547) or from
Uniform Relocation and Real Property any EPA Regional Office.
Acquisition Policies Act regulation
(part 4 of this chapter), its National [49 FR 6234, Feb. 17, 1984, as amended at 79
Environmental Policy Act (NEPA) reg- FR 76055, Dec. 19, 2014]
ulation (part 6 of this chapter), its pub-
lic participation regulation (part 25 of § 35.2005 Definitions.
this chapter), its intergovernmental re- (a) Words and terms not defined
mtcarroll on DSK6VXHR33PROD with CFR
view regulation (part 29 of this chap- below shall have the meaning given to
ter), its general grant regulation (2 them in 2 CFR part 200, subpart A—
CFR parts 200 and 1500), and its debar- Acronyms and Definitions.
430
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Environmental Protection Agency § 35.2005
(b) As used in this subpart, the fol- (ii) 40 CFR part 125, subpart G—ma-
lowing words and terms mean: rine discharge waivers;
(1) Act. The Clean Water Act (33 (iii) 40 CFR 122.44(d)—more stringent
U.S.C. 1251 et seq., as amended). water quality standards and State
(2) Ad valorem tax. A tax based upon standards; or
the value of real property. (iv) 41 FR 6190 (February 11, 1976)—
(3) Allowance. An amount based on a Alternative Waste Management Tech-
percentage of the project’s allowable niques for Best Practicable Waste
building cost, computed in accordance Treatment (treatment and discharge,
with appendix B. land application techniques and utili-
(4) Alternative technology. Proven zation practices, and reuse).
wastewater treatment processes and (8) Building. The erection, acquisi-
tion, alteration, remodeling, improve-
techniques which provide for the re-
ment or extension of treatment works.
claiming and reuse of water, produc-
(9) Building completion. The date when
tively recycle wastewater
all but minor components of a project
constitutuents or otherwise eliminate
have been built, all equipment is oper-
the discharge of pollutants, or recover
ational and the project is capable of
energy. Specifically, alternative
functioning as designed.
technolgy includes land application of
(10) Collector sewer. The common lat-
effluent and sludge; aquifer recharge;
eral sewers, within a publicly owned
aquaculture; direct reuse (non-pota-
treatment system, which are primarily
ble); horticulture; revegetation of dis-
installed to receive wastewaters di-
turbed land; containment ponds; sludge
rectly from facilities which convey
composting and drying prior to land wastewater from individual systems, or
application; self-sustaining inciner- from private property, and which in-
ation; and methane recovery. clude service ‘‘Y’’ connections designed
(5) Alternative to conventional treat- for connection with those facilities in-
ment works for a small community. For cluding:
purposes of §§ 35.2020 and 35.2032, alter- (i) Crossover sewers connecting more
native technology used by treatment than one property on one side of a
works in small communities include al- major street, road, or highway to a lat-
ternative technologies defined in para- eral sewer on the other side when more
graph (b)(4), as well as, individual and cost effective than parallel sewers; and
onsite systems; small diameter grav- (ii) Except as provided in paragraph
ity, pressure or vacuum sewers con- (b)(10)(iii) of this section, pumping
veying treated or partially treated units and pressurized lines serving in-
wastewater. These systems can also in- dividual structures or groups of struc-
clude small diameter gravity sewers tures when such units are cost effective
carrying raw wastewater to cluster and are owned and maintained by the
systems. grantee.
(6) Architectural or engineering serv- (iii) This definition excludes other fa-
ices. Consultation, investigations, re- cilities which convey wastewater from
ports, or services for design-type individual structures, from private
projects within the scope of the prac- property to the public lateral sewer, or
tice of architecture or professional en- its equivalent and also excludes facili-
gineering as defined by the laws of the ties associated with alternatives to
State or territory in which the grantee conventional treatment works in small
is located. communities.
(7) Best Practicable Waste Treatment (11) Combined sewer. A sewer that is
Technology (BPWTT). The cost-effective designed as a sanitary sewer and a
technology that can treat wastewater, storm sewer.
combined sewer overflows and non- (12) Complete waste treatment system. A
excessive infiltration and inflow in complete waste treatment system con-
publicly owned or individual waste- sists of all the treatment works nec-
water treatment works, to meet the essary to meet the requirements of
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applicable provisions of: title III of the Act, involving: (i) The
(i) 40 CFR part 133—secondary treat- transport of wastewater from indi-
ment of wastewater; vidual homes or buildings to a plant or
431
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§ 35.2005 40 CFR Ch. I (7–1–21 Edition)
the costs for correcting the infiltra- cross connections between storm sew-
tion/inflow conditions to the total ers and sanitary sewers, catch basins,
costs for transportation and treatment cooling towers, storm waters, surface
432
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Environmental Protection Agency § 35.2005
runoff, street wash waters, or drainage. (26) Marine bays and estuaries. Semi-
Inflow does not include, and is distin- enclosed coastal waters which have a
guished from, infiltration. free connection to the territorial sea.
(22) Initiation of operation. The date (27) Municipality. A city, town, bor-
specified by the grantee on which use ough, county, parish, district, associa-
of the project begins for the purpose for tion, or other public body (including an
which it was planned, designed, and intermunicipal agency of two or more
built. of the foregoing entities) created under
(23) Innovative technology. Developed State law, or an Indian tribe or an au-
wastewater treatment processes and thorized Indian tribal organization,
techniques which have not been fully having jurisdiction over disposal of
proven under the circumstances of sewage, industrial wastes, or other
their contemplated use and which rep- waste, or a designated and approved
resent a significant advancement over management agency under section 208
the state of the art in terms of signifi- of the Act.
cant reduction in life cycle cost or sig- (i) This definition includes a special
nificant environmental benefits district created under State law such
through the reclaiming and reuse of as a water district, sewer district, sani-
water, otherwise eliminating the dis- tary district, utility district, drainage
charge of pollutants, utilizing recy- district or similar entity or an inte-
cling techniques such as land treat- grated waste management facility, as
ment, more efficient use of energy and defined in section 201(e) of the Act,
which has as one of its principal re-
resources, improved or new methods of
sponsibilities the treatment, transport,
waste treatment management for com-
or disposal of domestic wastewater in a
bined municipal and industrial sys-
particular geographic area.
tems, or the confined disposal of pol-
lutants so that they will not migrate (ii) This definition excludes the fol-
to cause water or other environmental lowing:
pollution. (A) Any revenue producing entity
(24) Interceptor sewer. A sewer which which has as its principal responsi-
bility an activity other than providing
is designed for one or more of the fol-
wastewater treatment services to the
lowing purposes:
general public, such as an airport,
(i) To intercept wastewater from a
turnpike, port facility or other munic-
final point in a collector sewer and
ipal utility.
convey such wastes directly to a treat-
(B) Any special district (such as
ment facility or another interceptor.
school district or a park district) which
(ii) To replace an existing wastewater has the responsibility to provide waste-
treatment facility and transport the water treatment services in support of
wastes to an adjoining collector sewer its principal activity at specific facili-
or interceptor sewer for conveyance to ties, unless the special district has the
a treatment plant. responsibility under State law to pro-
(iii) To transport wastewater from vide wastewater treatment services to
one or more municipal collector sewers the community surrounding the special
to another municipality or to a re- district’s facility and no other munici-
gional plant for treatment. pality, with concurrent jurisdiction to
(iv) To intercept an existing major serve the community, serves or intends
discharge of raw or inadequately treat- to serve the special district’s facility
ed wastewater for transport directly to or the surrounding community.
another interceptor or to a treatment (28) Nonexcessive infiltration. The
plant. quantity of flow which is less than 120
(25) Interstate agency. An agency of gallons per capita per day (domestic
two or more States established under base flow and infiltration) or the quan-
an agreement or compact approved by tity of infiltration which cannot be
the Congress, or any other agency of economically and effectively elimi-
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two or more States, having substantial nated from a sewer system as deter-
powers or duties pertaining to the con- mined in a cost-effectiveness analysis.
trol of water pollution. (See §§ 35.2005(b)(16) and 35.2120.)
433
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§ 35.2005 40 CFR Ch. I (7–1–21 Edition)
duction of pollution from such dis- poses of applying for a grant under sec-
charges will substantially restore sur- tion 201(g)(1) of the act, a State (in-
face or groundwater uses. cluding its agencies) is subject to the
434
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Environmental Protection Agency § 35.2010
435
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§ 35.2012 40 CFR Ch. I (7–1–21 Edition)
none of the funds reallotted shall be accordance with an approved State pri-
made available to any State which ority system. The State priority sys-
failed to obligate any of the fiscal year tem and list must be designed to
funds being reallotted. Any sum made achieve optimum water quality man-
available to a State by reallotment agement consistent with the goals and
under this section shall be in addition requirements of the Act. All projects
to any funds otherwise allotted to such for building treatment works to be
State for grants under this subpart funded by EPA must be included on a
during any fiscal year and the reallot- State project list, except training fa-
ted funds shall remain available for ob- cilities funded under section 109(b) of
ligation until the last day of the fiscal the Act and marine CSO projects fund-
year following the fiscal year in which ed under section 201(n)(2) of the Act.
the reallotted funds are issued by the (b) State priority system. The State
Comptroller to the Regional Adminis- priority system describes the method-
trator. ology used to rank projects that are
(c) Except for funds appropriated for considered eligible for assistance. The
FY 72 and fiscal years prior to 1972, priority system should give high pri-
sums which are deobligated and re- ority to projects in priority water qual-
issued by the Comptroller to the Re- ity areas. The priority system may
gional Administrator before their real- also include the administrative, man-
lotment date shall be available for ob- agement, and public participation pro-
ligation in the same State and treated cedures required to develop and revise
in the same manner as the allotment the State project priority list. The pri-
from which such funds were derived. ority system includes at least the fol-
(d) Except for funds appropriated for lowing elements:
FY 72 and fiscal years prior to 1972, (1) Criteria. (i) The priority system
deobligated sums which are reissued by shall include at least the following cri-
the Comptroller to the Regional Ad- teria for ranking projects:
ministrator after their reallotment
(A) The impairment of classified
date shall be available for obligation in
water uses resulting from existing mu-
the same State until the last day of the
nicipal pollutant discharges; and
fiscal year following the fiscal year in
which the reissuance occurs. (B) The extent of surface or ground
(e) Deobligated FY 72 and prior to water use restoration or public health
1972 fiscal year funds, except 1964, 1965 improvement resulting from the reduc-
and 1966 funds, will be credited to the tion in pollution.
allowances of the same Region from (ii) The State may also include other
which such funds are recovered, and criteria in its priority system for rank-
the Regional Administrator may deter- ing projects, such as the use of innova-
mine how these recoveries are credited tive or alternative technology, the
to the States within the Region. need to complete a waste treatment
system for which a grant for a phase or
[49 FR 6234, Feb. 17, 1984, as amended at 50 segment was previously awarded; and
FR 45895, Nov. 4, 1985] the category of need and the existing
§ 35.2012 Capitalization grants. population affected.
(iii) In ranking phased and segmented
Amounts allotted to a State under projects States must comply with
title II may be deposited in that § 35.2108.
State’s water pollution control revolv- (2) Categories of need. All projects
ing fund as a capitalization grant in ac- must fit into at least one of the cat-
cordance with 40 CFR 35.5020 (f) and (g). egories of need described in this para-
[55 FR 27095, June 29, 1990] graph to be eligible for funding, except
as provided in paragraphs (b)(2) (iii)
§ 35.2015 State priority system and and (iv) of this section. States will
project priority list. have sole authority to determine the
(a) General. The Regional Adminis- priority for each category of need.
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trator will award grant assistance from (i) Before October 1, 1984, these cat-
annual allotments to projects on a egories of need shall include at least
State project priority list developed in the following:
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Environmental Protection Agency § 35.2015
(A) Secondary treatment (category (1) The State shall develop the
I); project priority list consistent with the
(B) Treatment more stringent than criteria established in the approved
secondary (category II); priority system. In ranking projects,
(C) Infiltration/inflow correction the State must also consider total
(category IIIA); funds available, needs and priorities set
(D) Major sewer system rehabilita- forth in areawide water quality man-
tion (category IIIB); agement plans, and any other factors
(E) New collector sewers and appur- contained in the State priority system.
tenances (category IVA); (2) The list shall include an estimate
(F) New interceptors and appur- of the eligible cost of each project.
tenances (category IVB); (d) Public participation. (1) In addition
to any requirements in 40 CFR part 25,
(G) Correction of combined sewer
the State shall hold public hearings as
overflows (category V).
follows:
(ii) After September 30, 1984, except
(i) Before submitting its priority sys-
as provided in paragraphs (b)(2) (iii)
tem to the Regional Administrator for
and (iv) of this section, these cat-
approval and before adopting any sig-
egories of need shall include only the
nificant change to an approved priority
following:
system; and
(A) Secondary treatment or any cost- (ii) Before submitting its annual
effective alternative; project priority list to the Regional
(B) Treatment more stringent than Administrator for acceptance and be-
secondary or any cost-effective alter- fore revising its priority list unless the
native; State agency and the Regional Admin-
(C) New interceptors and appur- istrator determine that the revision is
tenances; and not significant.
(D) Infiltration/inflow correction. (iii) If the approved State priority
(iii) After September 30, 1984, up to 20 system contains procedures for bypass-
percent (as determined by the Gov- ing projects on the fundable portion of
ernor) of a State’s annual allotment the priority list, such bypasses will not
may be used for categories of need be significant revisions for purposes of
other than those listed in paragraph this section.
(b)(2)(ii) of this section and for any pur- (2) Public hearings may be conducted
pose for which grants may be made as directed in the State’s continuing
under sections 319 (h) and (i) of the Act planning process document or may be
(including any innovative and alter- held in conjunction with any regular
native approaches for the control of public meeting of the State agency.
nonpoint sources of pollution). (e) Regional Administrator review. The
(iv) After September 30, 1984, the State must submit its priority system,
Governor may include in the priority project priority list and revisions of
system a category for projects needed the priority system or priority list to
to correct combined sewer overflows the Regional Administrator for review.
which result in impaired uses in pri- The State must also submit each year,
ority water quality areas. Only by August 31, a new priority list for use
projects which comply with the re- in the next fiscal year.
quirements of § 35.2024(a) may be in- (1) After submission and approval of
cluded in this category. the initial priority system and submis-
(c) Project priority list. The State’s an- sion and acceptance of the project pri-
nual project priority list is an ordered ority lists under paragraph (c) of this
listing of projects for which the State section, the State may revise its pri-
expects Federal financial assistance. ority system and list as necessary.
The priority list contains two portions: (2) The Regional Administrator shall
the fundable portion, consisting of review the State priority system and
those projects anticipated to be funded any revisions to insure that they are
from funds available for obligation; designed to obtain compliance with the
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§ 35.2020 40 CFR Ch. I (7–1–21 Edition)
ance grants. Each State may request (e) Reserve for Advances of Allowance.
that the Regional Administrator re- Each State shall reserve a reasonable
serve, from the State’s annual allot- portion of its annual allotment not to
438
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Environmental Protection Agency § 35.2023
exceed 10 percent for advances of allow- these optional reserves are not obli-
ance under § 35.2025. The Regional Ad- gated or released and obligated for
ministrator may waive this reserve re- other purposes before the reallotment
quirement where a State can dem- date, they shall be subject to reallot-
onstrate that such a reserve is not nec- ment under § 35.2010(b).
essary because no new facilities plan- (c) Sums deobligated from the man-
ning or design work requiring an ad- datory portion of reserves under para-
vance and resulting in Step 3 grant graphs (b) through (e) of § 35.2020 which
awards is expected to begin during the are reissued by the Comptroller to the
period of availability of the annual al- Regional Administrator before the ini-
lotment. tial reallotment date for those funds
(f) Nonpoint source reserve. Each State shall be returned to the same reserve.
shall reserve 1 percent of its annual al- (See § 35.2010(c)).
lotment or $100,000, whichever is great-
[49 FR 6234, Feb. 17, 1984, as amended at 50
er, for development and implementa- FR 45895, Nov. 4, 1985; 55 FR 27095, June 29,
tion of a nonpoint source management 1990]
program under section 319 of the Act.
Sums reserved by the State under this § 35.2023 Water quality management
paragraph that are in excess of $100,000 planning.
and that are not used for these pur- (a) From funds reserved under
poses, may be used by the State for any § 35.2020(d) the Regional Administrator
other purpose under title II of the Act. shall make grants to the States to
(g) Marine estuary reserve. The Admin- carry out water quality management
istrator shall reserve, before allotment planning including but not limited to:
of funds to the States, 1 percent of the (1) Identifying the most cost-effec-
funds appropriated under section 207 in tive and locally acceptable facility and
fiscal years 1987 and 1988, and 11⁄2 per- non-point measures to meet and main-
cent of the funds appropriated under tain water quality standards;
section 207 in fiscal years 1989 and 1990, (2) Developing an implementation
to carry out section 205(l) of the Act. plan to obtain State and local financial
(h) Indian program reserve. The Ad- and regulatory commitments to imple-
ministrator shall reserve, before allot- ment measures developed under para-
ment of funds to the States, one-half of graph (a)(1) of this section;
1 percent of the funds appropriated (3) Determining the nature, extent
under section 207 in fiscal years 1987, and causes of water quality problems
1988, 1989 and 1990, for grants for the de- in various areas of the State and inter-
velopment of waste treatment manage- state region, and reporting on these an-
ment plans and for the construction of nually; and
sewage treatment works to serve In- (4) Determining which publicly
dian tribes. owned treatment works should be con-
[49 FR 6234, Feb. 17, 1984, as amended at 50 structed, in which areas and in what
FR 45895, Nov. 4, 1985; 55 FR 27095, June 29, sequence, taking into account the rel-
1990] ative degree of effluent reduction at-
tained, the relative contributions to
§ 35.2021 Reallotment of reserves. water quality of other point or
(a) Mandatory portions of reserves nonpoint sources, and the consider-
under § 35.2020(b) through (g) shall be ation of alternatives to such construc-
reallotted if not obligated during the tion, and implementing section 303(e)
allotment period (§ 35.2010(b) and (d)). of the Act.
Such reallotted sums are not subject to (b) In carrying out planning with
reserves. The State management as- grants made under paragraph (a) of
sistance reserve under § 35.2020(a) is not this section, a State shall develop
subject to reallotment. jointly with local, regional and inter-
(b) States may request the Regional state entities, a plan for carrying out
Administrator to release funds in op- the program and give funding priority
tional reserves or optional portions of to such entities and designated or un-
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§ 35.2024 40 CFR Ch. I (7–1–21 Edition)
440
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Environmental Protection Agency § 35.2030
studies which directly relate to treat- (2) A description of the Best Prac-
ment works needed to comply with en- ticable Wastewater Treatment Tech-
forceable requirements of the Act. Fa- nology. (See § 35.2005(b)(7).)
cilities planning will investigate the (3) A cost-effectiveness analysis of
need for proposed facilities. Through a the feasible conventional, innovative
systematic evaluation of alternatives and alternative wastewater treatment
that are feasible in light of the unique works, processes and techniques capa-
demographic, topographic, hydrologic ble of meeting the applicable effluent,
and institutional characteristics of the water quality and public health re-
area, it will demonstrate that, except quirements over the design life of the
for innovative and alternative tech- facility while recognizing environ-
nology under § 35.2032, the selected al- mental and other non-monetary con-
ternative is cost effective (i.e., is the siderations. The planning period for
most economical means of meeting the the cost-effectiveness analysis shall be
applicable effluent, water quality and 20 years. The monetary costs to be con-
public health requirements over the de- sidered must include the present worth
sign life of the facility while recog- or equivalent annual value of all cap-
nizing environmental and other non- ital costs and operation and mainte-
monetary considerations). For sewered nance costs. The discount rate estab-
communities with a population of lished by EPA for the construction
10,000 or less, consideration must be grants program shall be used in the
given to appropriate low cost tech- cost-effectiveness analysis. The popu-
nologies such as facultative ponds, lation forecasting in the analysis shall
trickling filters, oxidation ditches, or be consistent with the current Needs
overland-flow land treatment; and for Survey. A cost-effectiveness analysis
unsewered portions of communities of must include:
10,000 or less, consideration must be (i) An evaluation of alternative flow
given to onsite systems. The facilities reduction methods. (If the grant appli-
plan will also demonstrate that the se- cant demonstrates that the existing
lected alternative is implementable average daily base flow (ADBF) from
from legal, institutional, financial and the area is less than 70 gallons per cap-
management standpoints. ita per day (gpcd), or if the Regional
(2) Grant assistance may be awarded Administrator determines the area has
before certification of the completed an effective existing flow reduction
facilities plan if: program, additional flow reduction
(i) The Regional Administrator deter- evaluation is not required.)
mines that applicable statutory and (ii) A description of the relationship
regulatory requirements (including between the capacity of alternatives
part 6) have been met; that the facili- and the needs to be served, including
ties planning related to the project has capacity for future growth expected
been substantially completed; and that after the treatment works become
the project for which grant assistance operational. This includes letters of in-
is awarded will not be significantly af- tent from significant industrial users
fected by the completion of the facili- and all industries intending to increase
ties plan and will be a component part their flows or relocate in the area doc-
of the complete waste treatment sys- umenting capacity needs and charac-
tem; and teristics for existing or projected flows;
(ii) The applicant agrees to complete (iii) An evaluation of improved efflu-
the facilities plan on a schedule the ent quality attainable by upgrading
State accepts and such schedule is in- the operation and maintenance and ef-
serted as a special condition of the ficiency of existing facilities as an al-
grant agreement. ternative or supplement to construc-
(b) Facilities plan contents. A com- tion of new facilities;
pleted facilities plan must include: (iv) An evaluation of the alternative
(1) A description of both the proposed methods for the reuse or ultimate dis-
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treatment works, and the complete posal of treated wastewater and sludge
waste treatment system of which it is material resulting from the treatment
a part. process;
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§ 35.2032 40 CFR Ch. I (7–1–21 Edition)
ment or the early preparation of an en- creased operation and maintenance ex-
vironmental impact statement. penditures for the project or the com-
plete waste treatment system of which
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Environmental Protection Agency § 35.2036
the project is a part; or requires sig- (b) The RBC failure has significantly
nificant additional capital expendi- increased the project’s capital or oper-
tures for corrective action; ation and maintenance costs;
(3) The failure has occurred prior to (c) The modification/replacement
two years after initiation of operation project meets all requirements of
of the project; and EPA’s construction grant and other ap-
(4) The failure is not attributable to plicable regulations, including 40 CFR
negligence on the part of any person. part 35, and 2 CFR parts 200, 1500 and
1532.
§ 35.2034 Privately owned individual (d) The modification/replacement
systems. project is included within the fundable
(a) An eligible applicant may apply range of the State’s annual project pri-
for a grant to build privately owned ority list; and
treatment works serving one or more (e) The State certifies the project for
principal residences or small commer- funding from its regular (i.e., non-re-
cial establishments. serve) allotments and from funds ap-
(b) In addition to those applicable propriated or otherwise available after
limitations set forth in §§ 35.2100 February 4, 1987.
through 35.2127 the grant applicant [55 FR 27095, June 29, 1990, as amended at 79
shall: FR 76056, Dec. 19, 2014]
(1) Demonstrate that the total cost
and environmental impact of building § 35.2036 Design/build project grants.
the individual system will be less than (a) Terms and conditions. The Re-
the cost of a conventional system; gional Administrator may award a de-
(2) Certify that the principal resi- sign/build (Step 7) project grant pro-
dence or small commercial establish- vided that:
ment was constructed before December (1) The proposed treatment works has
27, 1977, and inhabited or in use on or an estimated total cost of $8 million or
before that date; less;
(3) Apply on behalf of a number of in- (2) The proposed treatment works is
dividual units to be served in the facili- an aerated lagoon, trickling filter,
ties planning area; waste stabilization pond, land applica-
(4) Certify that public ownership of tion system (wastewater or sludge),
such works is not feasible and list the slow rate (intermittent) sand filter or
reasons; and subsurface disposal system;
(5) Certify that such treatment works (3) The proposed treatment works
will be properly operated and main- will be an operable unit, will meet all
tained and will comply with all other requirements of title II of the Act, and
requirements of section 204 of the Act. will be operated to meet the require-
ments of any applicable permit;
§ 35.2035 Rotating biological con- (4) The grantee obtains bonds from
tractor (RBC) replacement grants. the contractor in an amount the Re-
The Regional Administrator may gional Administrator determines ade-
award a grant for 100 percent of the quate to protect the Federal interest in
cost, including planning and design the treatment works (see 2 CFR
costs, of modification or replacement 200.325);
of RBCs which have failed to meet de- (5) The grantee will not allow any en-
sign performance specifications, pro- gineer, engineering firm or contractor
vided: which provided facilities planning or
(a) The applicant for a modification/ pre-bid services to bid or carry out any
replacement grant demonstrates to the part of the design/build work;
Regional Administrator’s satisfaction, (6) Contracts will be firm, fixed price
by a preponderance of the evidence, contracts;
that the RBC failure is not due to the (7) The grantee agrees that the grant
negligence of any person, including the amount, as amended to reflect the low-
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§ 35.2040 40 CFR Ch. I (7–1–21 Edition)
(8) The grantee will establish reason- (2) An estimated cost of sup-
able building start and completion plementing the facilities plan and
dates; other costs necessary to prepare the
(9) The grantee agrees that EPA will pre-bid package (see appendix A.I.1(a)
not pay more than 95 percent of the of this subpart); and
grant amount until after completion of (3) The estimated cost of the design/
building and the Regional Administra- build contract.
tor’s final project approval, based on (e) Amended grant amount. (1) After
initiation of operation and acceptance bids are accepted for the design/build
of the facility by the grantee; contract, and the price of the lowest
(10) The grantee agrees that a recipi- responsive, responsible bidder is deter-
ent of a Step 7 grant is not eligible for mined, EPA will amend the design/
any other grant for the project under build project grant based on:
(i) The amount of the lowest respon-
title II of the Act; and
sive, responsible bid;
(11) The grantee accepts other terms (ii) A lump sum for construction
and conditions deemed necessary by management, contract and project ad-
the Regional Administrator. ministration services and contin-
(b) Procurement. (1) Grantee procure- gencies;
ment for developing or supplementing (iii) Any adjustments to the final al-
the facilities plan to prepare the pre- lowance for facilities planning if in-
bid package, as well as for designing cluded as required by paragraph (c)(1)
and building the project and per- of this section (the amount of the final
forming construction management and allowance is established as a percent-
contract administration, will be in ac- age of the actual building cost in ac-
cordance with the procurement stand- cordance with appendix B of this sub-
ards at 2 CFR 200.317 through 200.326 part);
and 2 CFR 1500.9 through 1500.10. (iv) The actual reasonable and nec-
(2) The grantee will use the sealed bid essary cost of supplementing the facili-
(formal advertising) method of pro- ties plan to prepare the pre-bid pack-
curement to select the design/build age (see paragraph (c)(1) of this sec-
contractor. tion); and
(3) The grantee may use the same ar- (v) The submission of approvable
chitect or engineer that prepared the items required by § 35.2203 of this part.
facilities plan to provide any or all of (2) Changes to Step 7 projects cannot
the pre-bid, construction management, increase the amount of EPA assistance
and contract and/or project administra- established at the time of the grant
tion services provided the initial pro- amendment.
curement met EPA requirements (see 2 (f) Allotment limit for design/build
CFR 1500.10). grants. The Governor may use up to 20
(c) Pre-bid package. Each design/build percent of the State’s annual allotment
project grant will provide for the prep- for design/build project grants.
aration of a pre-bid package that is suf- [55 FR 27096, June 29, 1990, as amended at 79
ficiently detailed to insure that the FR 76056, Dec. 19, 2014]
bids received for the design/build work
are complete, accurate and comparable § 35.2040 Grant application.
and will result in a cost-effective, oper- Applicants for Step 2 + 3 or Step 3 as-
able facility. sistance shall submit applications to
(d) Grant amount. The grant amount the State. In addition to the informa-
will be based on an estimate of the de- tion required in 2 CFR parts 200 and
sign/build project’s final cost, includ- 1500, applicants shall provide the fol-
ing: lowing information:
(1) An allowance for facilities plan- (a) Step 2 + 3: Combined design and
ning if the grantee did not receive a building of a treatment works and build-
Step 1 grant (the amount of the allow- ing related services and supplies. An ap-
ance is established as a percentage of plication for Step 2 + 3 grant assistance
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444
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Environmental Protection Agency § 35.2040
(2) Certification from the State that (2) The basis for the amount re-
there has been adequate public partici- quested.
pation based on State and local stat- (e) Field Testing of Innovative and Al-
utes; ternative Technology. An application for
(3) Notification of any advance re- field testing of I/A projects shall in-
ceived under § 35.2025(b); clude a field testing plan containing:
(4) Evidence of compliance with all (1) Identification; including size, of
application limitations on award all principal components to be tested;
(§§ 35.2100 through 35.2127); and (2) Location of testing facilities in
(5) The project schedule.
relationship to full scale design;
(b) Step 3: Building of a treatment
(3) Identification of critical design
works and related services and supplies
An application for Step 3 grant assist- parameters and performance variables
ance shall include: that are to be verified as the basis for
(1) A facilities plan prepared in ac- I/A determinations:
cordance with this subpart; (4) Schedule for construction of field
(2) Certification from the State that testing facilities and duration of pro-
there has been adequate public partici- posed testing;
pation based on State and local stat- (5) Capital and O&M cost estimate of
utes; field testing facilities with documenta-
(3) Notification of any advance re- tion of cost effectiveness of field test-
ceived under § 35.2025(b); ing approach; and
(4) Evidence of compliance with all (6) Design drawing, process flow dia-
applicable limitations on award gram, equipment specification and re-
(§§ 35.2100 through 35.2127); lated engineering data and information
(5) Final design drawings and speci- sufficient to describe the overall design
fications; and proposed performance of the field
(6) The project schedule; and testing facility.
(7) In the case of an application for (f) Marine CSO Fund Project. An appli-
Step 3 assistance that is solely for the cation for marine CSO grant assistance
acquisition of eligible real property, a under § 35.2024(b) shall include:
plat which shows the legal description
(1) All information required under
of the property to be acquired, a pre-
paragraphs (b) (1), (2), (4), (6), and (7), of
liminary layout of the distribution and
drainage systems, and an explanation this section;
of the intended method of acquiring (2) Final design drawings and speci-
the real property (see 40 CFR part 4). fications or a commitment to provide
(c) Training facility project. An appli- them by a date set by the Regional Ad-
cation for a grant for construction and ministrator; and
support of a training facility, facilities (3) The water quality benefits dem-
or training programs under section onstration required under § 35.2024(b)(1).
109(b) of the Act shall include: (g) Design/build project grant (Step 7).
(1) A written commitment from the An application for a design/build
State agency to carry out at such facil- project grant shall include:
ity a program of training; and (1) All the information required in
(2) If a facility is to be built, an engi- paragraphs (b) (1), (2) and (4) of this
neering report including facility design section; and
data and cost estimates for design and (2) The estimated building start and
building. completion dates and Federal payment
(d) Advances of allowance. State appli- schedule (the start and completion
cations for advances of allowance to dates may be revised when the design/
small communities shall be on govern- build bids are accepted and included in
ment wide Application for Federal As- the amended grant).
sistance (SF–424). The application shall
include: (Approved by the Office of Management and
(1) A list of communities that re- Budget under control number 2040–0027)
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ceived an advance of allowance and the [49 FR 6234, Feb. 17, 1984, as amended at 50
amount received by each under the pre- FR 45895, Nov. 4, 1985; 55 FR 27096, June 29,
vious State grant; and 1990; 79 FR 76056, Dec. 19, 2014]
445
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§ 35.2042 40 CFR Ch. I (7–1–21 Edition)
446
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Environmental Protection Agency § 35.2105
447
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§ 35.2106 40 CFR Ch. I (7–1–21 Edition)
448
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Environmental Protection Agency § 35.2118
449
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§ 35.2120 40 CFR Ch. I (7–1–21 Edition)
field testing of innovative and alter- eliminate that specific excessive infil-
native technologies, minor sewer reha- tration.
bilitation, acquisition of eligible land (2) If the flow rate at the existing
or an option for the purchase of eligible treatment facility is more than 120 gal-
land or advance building on minor por- lons per capita per day during periods
tions of treatment works) after com- of high groundwater, the applicant
pletion of the environmental review as shall either:
required by § 35.2113. (i) Perform a study of the sewer sys-
(2) If the Regional Administrator ap- tem to determine the quantity of ex-
proves preliminary Step 3 work, such cessive infiltration and to propose a
approval is not an actual or implied sewer rehabilitation program to elimi-
commitment of grant assistance and nate the excessive infiltration; or
the applicant proceeds at its own risk. (ii) If the flow rate is not signifi-
(b) Any procurement is subject to the cantly more than 120 gallons per capita
requirements of 40 CFR part 33, and in per day, request the Regional Adminis-
the case of acquisition of eligible real trator to determine that he may pro-
property, 40 CFR part 4. ceed without further study, in which
case the allowable project cost will be
(Approved by the Office of Management and
Budget under control number 2040–0027)
limited to the cost of a project with a
capacity of 120 gallons per capita per
[49 FR 6234, Feb. 17, 1984, as amended at 55 day under appendix A.G.2.a.
FR 27097, June 29, 1990]
(Approved by the Office of Management and
§ 35.2120 Infiltration/Inflow. Budget under control number 2040–0027)
(a) General. The applicant shall dem- [49 FR 6234, Feb. 17, 1984, as amended at 50
onstrate to the Regional Administra- FR 45895, Nov. 4, 1985]
tor’s satisfaction that each sewer sys-
§ 35.2122 Approval of user charge sys-
tem discharging into the proposed tem and proposed sewer use ordi-
treatment works project is not or will nance.
not be subject to excessive infiltration/
inflow. For combined sewers, inflow is If the project is for Step 3 grant as-
not considered excessive in any event. sistance, unless it is solely for acquisi-
(b) Inflow. If the rainfall induced tion of eligible land, the applicant
peak inflow rate results or will result must obtain the Regional Administra-
in chronic operational problems during tor’s approval of its user charge system
storm events, or the rainfall-induced (§ 35.2140) and proposed (or existing)
total flow rate exceeds 275 gpcd during sewer use ordinance § 35.2130). If the ap-
plicant has a sewer use ordinance or
storm events, the applicant shall per-
user charge system in affect, the appli-
form a study of the sewer system to de-
cant shall demonstrate to the Regional
termine the quantity of excessive in-
Administrator’s satisfaction that they
flow and to propose a rehabilitation
meet the requirements of this part and
program to eliminate the excessive in-
are being enforced.
flow. All cases in which facilities are
planned for the specific storage and/or (Approved by the Office of Management and
treatment of inflow shall be subject to Budget under control number 2040–0027)
a cost-effectiveness analysis.
(c) Infiltration. (1) If the flow rate at § 35.2123 Reserve capacity.
the existing treatment facility is 120 EPA will limit grant assistance for
gallons per capita per day or less dur- reserve capacity as follows:
ing periods of high groundwater, the (a) If EPA awarded a grant for a Step
applicant shall build the project in- 3 interceptor segment before December
cluding sufficient capacity to transport 29, 1981, EPA may award grants for re-
and treat any existing infiltration. maining interceptor segments included
However, if the applicant believes any in the facilities plan with reserve ca-
specific portion of its sewer system is pacity as planned, up to 40 years.
subject to excessive infiltration, the (b) Except as provided in paragraph
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applicant may confirm its belief in a (a) of this section, if EPA awards a
cost-effectiveness analysis and propose grant for a Step 3 or Step 3 segment of
a sewer rehabilitation program to a primary, secondary, or advanced
450
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Environmental Protection Agency § 35.2130
451
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§ 35.2140 40 CFR Ch. I (7–1–21 Edition)
wastewater treatment and sludge dis- (3) Each member of the industrial
posal. user and commercial user class which
(Approved by the Office of Management and
discharges more than 25,000 gallons per
Budget under control number 2040–0027) day of sanitary waste pays its share of
the costs of operation and maintenance
§ 35.2140 User charge system. (including replacement) of the treat-
The user charge system (see §§ 35.2122 ment works based upon charges for ac-
and 35.2208) must be designed to tual use.
produce adequate revenues required for (c) Notification. Each user charge sys-
operation and maintenance (including tem must provide that each user be no-
replacement). It shall provide that tified, at least annually, in conjunction
each user which discharges pollutants with a regular bill (or other means ac-
that cause an increase in the cost of ceptable to the Regional Adminis-
managing the effluent or sludge from trator), of the rate and that portion of
the treatment works shall pay for such the user charges or ad valorem taxes
increased cost. The user charge system which are attributable to wastewater
shall be based on either actual use treatment services.
under paragraph (a) of this section, ad (d) Financial management system. Each
valorem taxes under paragraph (b) of user charge system must include an
this section, or a combination of the adequate financial management sys-
two. tem that will accurately account for
(a) User charge system based on actual revenues generated by the system and
use. A grantee’s user charge system expenditures for operation and mainte-
based on actual use (or estimated use) nance (including replacement) of the
of wastewater treatment services shall treatment system, based on an ade-
provide that each user (or user class) quate budget identifying the basis for
pays its proportionate share of oper- determining the annual operation and
ation and maintenance (including re- maintenance costs and the costs of per-
placement) costs of treatment works sonnel, material, energy and adminis-
within the grantee’s service area, based tration.
on the user’s proportionate contribu- (e) Charges for operation and mainte-
tion to the total wastewater loading nance for extraneous flows. The user
from all users (or user classes). charge system shall provide that the
(b) User charge system based on ad va- costs of operation and maintenance for
lorem taxes. A grantee’s user charge all flow not directly attributable to
system which is based on ad valorem users (i.e., infiltration/inflow) be dis-
taxes may be approved if: tributed among all users based upon ei-
(1) On December 27, 1977, the grantee ther of the following:
had in existence a system of dedicated (1) In the same manner that it dis-
ad valorem taxes which collected reve- tributes the costs for their actual use,
nues to pay the cost of operation and or
maintenance of wastewater treatment (2) Under a system which uses one or
works within the grantee’s service area any combination of the following fac-
and the grantee has continued to use tors on a reasonable basis:
that system; (i) Flow volume of the users;
(2) The ad valorem user charge sys- (ii) Land area of the users;
tem distributes the operation and (iii) Number of hookups or discharges
maintenance (including replacement) of the users;
costs for all treatment works in the (iv) Property valuation of the users,
grantee’s jurisdiction to the residential if the grantee has an approved user
and small non-residential user class charge system based on ad valorem
(including at the grantee’s option non- taxes.
residential, commercial and industrial (f) After completion of building a
users that introduce no more than the project, revenue from the project (e.g.,
equivalent of 25,000 gallons per day of sale of a treatment-related by-product;
domestic sanitary wastes to the treat- lease of the land; or sale of crops grown
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ment works), in proportion to the use on the land purchased under the grant
of the treatment works by this class; agreement) shall be used to offset the
and costs of operation and maintenance.
452
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Environmental Protection Agency § 35.2152
of the total Step 3 or Step 7 allowable of eligible building costs for all treat-
costs and the allowance established in ment works which receive 75 or 55 per-
the grant agreement under appendix B. cent grants or such other Federal share
453
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§ 35.2200 40 CFR Ch. I (7–1–21 Edition)
under paragraph (c) of this section in grant shall be subject to the conditions
the State. under §§ 35.2202 through 35.2218.
(c) A project for which an application [79 FR 76056, Dec. 19, 2014]
for grant assistance has been made be-
fore October 1, 1984, but which was § 35.2202 Step 2 + 3 projects.
under judicial injunction at that time (a) Prior to initiating action to ac-
prohibiting its construction, shall be quire eligible real property, a Step 2 +
eligible for a grant at 75 percent of the 3 grantee shall submit for Regional Ad-
cost of its construction. ministrator review and written ap-
(d) Uniform lower Federal share. (1) Ex- proval the information required under
cept as provided in § 35.2032 (c) and (d) § 35.2040(b)(7).
of this section, the Governor of a State (b) Before initiating procurement ac-
may request the Regional Administra- tion for the building of the project, a
tor’s approval to revise uniformly Step 2 + 3 grantee shall submit for the
throughout the State the Federal share Regional Administrator’s review and
of grant assistance for all future written approval the information re-
projects. The revised Federal share quired under §§ 35.2040(b) (5) and (6),
must apply to all needs categories (see 35.2106, 35.2107, 35.2130 and 35.2140.
§ 35.2015(b)(2)).
(2) After EPA awards grant assist- § 35.2203 Step 7 projects.
ance for a project, the Federal share (a) Prior to initiating action to ac-
shall be the same for any grant in- quire real property, a Step 7 grantee
crease that is within the scope of the shall submit for Regional Adminis-
project. trator review and written approval the
(3) The uniform lower Federal share information required under
established by the Governor does not § 35.2040(b)(7).
apply to projects funded under (b) Before approving a Step 7 grant
§ 35.2024(b). amendment under § 25.2036, the Re-
(e) Training facilities. The Federal gional Administrator shall determine
share of treatment works required to that the applicant and its project have
train and upgrade waste treatment met the requirements of §§ 35.2040 (b)(6)
works operations and maintenance per- and (g), 35.2106, 35.2107, and 35.2122.
sonnel may be up to 100 percent of the
allowable cost of the project. [55 FR 27097, June 29, 1990]
(1) Where a grant is made to serve
§ 35.2204 Project changes.
two or more States, the Administrator
is authorized to make an additional (a) Minor changes in the project work
grant for a supplemental facility in that are consistent with the objectives
each State. The Federal funds awarded of the project and within the scope of
to any State under section 109(b) for all the grant agreement do not require the
training facilities shall not exceed execution of a formal grant amend-
$500,000. ment before the grantee’s implementa-
(2) Any grantee who received a grant tion of the change. However, the
under section 109(b) before December amount of the funding provided by the
27, 1977, may have the grant increased grant agreement may only be increased
up to $500,000 by funds made available by a formal grant amendment.
under the Act, not to exceed 100 per- (b) The grantee must receive from
cent of the allowable costs. the Regional Administrator a formal
grant amendment before implementing
(Approved by the Office of Management and changes which:
Budget under control number 2040–0027) (1) Alter the project performance
[49 FR 6234, Feb. 17, 1984, as amended at 50 standards;
FR 45896, Nov. 4, 1985; 55 FR 27097, June 29, (2) Alter the type of wastewater
1990] treatment provided by the project;
(3) Significantly delay or accelerate
§ 35.2200 Grant conditions. the project schedule;
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454
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Environmental Protection Agency § 35.2208
mining whether the maximum allow- user charge system and sewer use ordi-
able project cost or increase in sub- nance for the useful life of the treat-
agreement cost will be exceeded, costs ment works.
455
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§ 35.2210 40 CFR Ch. I (7–1–21 Edition)
456
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Environmental Protection Agency § 35.2300
the engineer or engineering firm prin- from any party performing project
cipally responsible for either super- work; or
vising construction or providing archi- (2) Affects EPA’s right to take reme-
tectural and engineering services dur- dial action, including enforcement,
ing construction as the prime engineer against a grantee that fails to carry
to provide the following services during out its obligations under § 35.2214.
the first year following the initiation (Approved by the Office of Management and
of operation: Budget under control number 2040–0027)
(1) Direct the operation of the project
[49 FR 6234, Feb. 17, 1984, as amended at 55
and revise the operation and mainte-
FR 27098, June 29, 1990]
nance manual as necessary to accom-
modate actual operating experience; § 35.2250 Determination of allowable
(2) Train or provide for training of costs.
operating personnel and prepare cur- The Regional Administrator will de-
ricula and training material for oper- termine the allowable costs of the
ating personnel; and project based on applicable provisions
(3) Advise the grantee whether the of laws and regulations, the scope of
project is meeting the project perform- the approved project, 2 CFR part 200,
ance standards. subpart E—Cost Principles and appen-
(c) On the date one year after the ini- dix A of this subpart.
tiation of operation of the project, the
grantee shall certify to the Regional [79 FR 76056, Dec. 19, 2014]
Administrator whether the project
meets the project performance stand- § 35.2260 Advance purchase of eligible
land.
ards. If the Regional Administrator or
the grantee concludes that the project In the case of grant assistance award-
does not meet the project performance ed solely for the acquisition of eligible
standards, the grantee shall submit the land, the following provisions are de-
following: ferred until the award of the ensuing
(1) A corrective action report which Step 3 assistance for the building of fa-
includes an analysis of the cause of the cilities: §§ 35.2105, 35.2130, 35.2140, 35.2206
project’s failure to meet the perform- and 35.2208.
ance standards (including the quantity
of infiltration/inflow proposed to be § 35.2262 Funding of field testing.
eliminated), and an estimate of the na- In the case of grant assistance for
ture, scope and cost of the corrective field testing of innovative or alter-
action necessary to bring the project native wastewater process and tech-
into compliance; niques, the following provisions are de-
(2) The schedule for undertaking in a ferred until the award of assistance for
timely manner the corrective action building the approved facilities:
necessary to bring the project into §§ 35.2105, 35.2106, 35.2122, 35.2130, 35.2140,
compliance; and 35.2206, and 35.2208.
(3) The scheduled date for certifying
to the Regional Administrator that the § 35.2300 Grant payments.
project is meeting the project perform- Except as provided in § 35.2206, the
ance standards. Regional Administrator shall pay the
(d) Except as provided in § 35.2032(c) Federal share of the allowance under
the grantee shall take corrective ac- § 35.2025 and the allowable project costs
tion necessary to bring a project into incurred to date and currently due and
compliance with the project perform- payable by the grantee, as certified in
ance standards at its own expense. This the grantee’s most recent payment re-
limitation on Federal funding for cor- quest.
rective actions does not apply to train- (a) Adjustment. The Regional Admin-
ing funds under section 104(g)(1) of the istrator may at any time review and
Act. audit request for payment and pay-
(e) Nothing in this section: ments and make appropriate adjust-
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457
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§ 35.2350 40 CFR Ch. I (7–1–21 Edition)
458
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Environmental Protection Agency Pt. 35, Subpt. I, App. A
decisions under grants awarded before the ef- (3) Settlements, arbitration awards, and
fective date. They are only to be used as court judgments which resolve contractor
guidance in those cases. claims shall be reviewed by the grant award
official and shall be allowable only to the ex-
A. Costs Related to Subagreements tent that they meet the requirements of
1. Allowable costs related to sub- agree- paragraph g(1), are reasonable, and do not at-
ments include: tempt to pass on to EPA the cost of events
a. The costs of subagreements for building that were the responsibility of the grantee,
the project. the contractor, or others.
b. The costs of complying with the pro- h. The costs of the services of the prime
curement standards in 2 CFR 200.317 through engineer required by § 35.2218 during the first
200.326 and 2 CFR 1500.9 and 1500.10. year following initiation of operation of the
c. The cost of legal and engineering serv- project.
ices incurred by grantees in deciding pro- i. The cost of development of a plan of op-
curement protests and defending their deci- eration including an operation and mainte-
sions in protest appeals in 2 CFR 200.318. nance manual required by § 35.2106.
d. The costs for establishing or using mi- j. Start-up services for onsite training of
nority and women’s business liaison services. operating personnel in operation and control
e. The costs of services incurred during the of specific treatment processes, laboratory
building of a project to ensure that it is built procedures, and maintenance and records
in conformance with the design drawings and management.
specifications. k. The specific and unique costs of field
f. The costs (including legal, technical, and testing an innovative or alternative process
administrative costs) of assessing the merits or technique, which may include equipment
of or negotiating the settlement of a claim leasing costs, personnel costs, and utility
by or against a grantee under a subagree- costs necessary for constructing, conducting,
ment provided: and reporting the results of the field test.
(1) The claim arises from work within the 2. Unallowable costs related to sub- agree-
scope of the grant; ments include:
(2) A formal grant amendment is executed a. The costs of architectural or engineering
specifically covering the costs before they services incurred in preparing a facilities
are incurred; plan and the design drawings and specifica-
(3) The costs are not incurred to prepare tions for a project. This provision does not
documentation that should be prepared by
apply to planning and design costs incurred
the contractor to support a claim against
in the modification or replacement of an in-
the grantee; and
novative or alternative project funded under
(4) The Regional Administrator determines
§ 35.2032(c).
that there is a significant Federal interest in
b. Except as provided in 1.g. above, archi-
the issues involved in the claim.
g. Change orders and the costs of meri- tectural or engineering services or other
torious contractor claims for increased costs services necessary to correct defects in a fa-
under subagreements as follows: cilities plan, design drawings and specifica-
(1) Change orders and the costs of meri- tions, or other subagreement documents.
torious contractor claims provided the costs c. The costs (including legal, technical and
are: administrative) of defending against a con-
(i) Within the scope of the project; tractor claim for increased costs under a
(ii) Not caused by the grantee’s mis- subagreement or of prosecuting a claim to
management; and enforce any subagreement unless:
(iii) Not caused by the grantee’s vicarious (1) The claim arises from work within the
liability for the improper actions of others. scope of the grant;
(2) Provided the requirements of paragraph (2) A formal grant amendment is executed
g(1) are met, the following are examples of specifically covering the costs before they
allowable change orders and contractor are incurred;
claim costs: (3) The claim cannot be settled without ar-
(i) Building costs resulting from defects in bitration or litigation;
the plans, design drawings and specifica- (4) The claim does not result from the
tions, or other subagreement documents grantee’s mismanagement;
only to the extent that the costs would have (5) The Regional Administrator determines
been incurred if the subagreement docu- that there is a significant Federal interest in
ments on which the bids were based had been the issues involved in the claim; and
free of the defects, and excluding the costs of (6) In the case of defending against a con-
any rework, delay, acceleration, or disrup- tractor claim, the claim does not result from
tion caused by such defects; the grantee’s responsibility for the improper
(ii) Costs of equitable adjustments under action of others.
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Clause 4, Differing Site Conditions, of the d. Bonus payments, not legally required,
model subagreement clauses required under for completion of building before a contrac-
§ 33.1030 of this subchapter. tual completion date.
459
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Pt. 35, Subpt. I, App. A 40 CFR Ch. I (7–1–21 Edition)
e. All incremental costs due to the award 2. Unallowable costs for small and onsite
of any subagreements for building signifi- systems include:
cant elements of the project more than 12 a. Modification to physical structure of
months after the Step 3 grant award or final homes or commercial establishments.
Step 2 + 3 approvals unless specified in the b. Conveyance pipes from the house to the
project schedule approved by the Regional treatment unit located on user’s property or
Administrator at the time of grant award. from the house to the property line if the
treatment unit is not located on that user’s
B. Mitigation property.
c. Wastewater generating fixtures such as
1. Allowable costs include:
commodes, sinks, tubs, and drains.
a. Costs necessary to mitigate only direct,
adverse, physical impacts resulting from D. Real Property
building of the treatment works.
1. Allowable costs for land and rights-of-
b. The costs of site screening necessary to
way include:
comply with NEPA related studies and facili-
a. The cost (including associated legal, ad-
ties plans, or necessary to screen adjacent
ministrative and engineering costs) of land
properties.
acquired in fee simple or by lease or ease-
c. The cost of groundwater monitoring fa- ment under grants awarded after October 17,
cilities necessary to determine the possi- 1972, that will be an integral part of the
bility of groundwater deterioration, deple- treatment process or that will be used for
tion or modification resulting from building the ultimate disposal of residues resulting
the project. from such treatment provided the Regional
2. Unallowable costs include: Administrator approves it in the grant
a. The costs of solutions to aesthetic prob- agreement. These costs include:
lems, including design details which require (1) The cost of a reasonable amount of
expensive building techniques and architec- land, considering irregularities in applica-
tural features and hardware, that are unrea- tion patterns, and the need for buffer areas,
sonable or substantially higher in cost than berms, and dikes;
approvable alternatives and that neither en- (2) The cost of land acquired for a soil ab-
hance the function or appearance of the sorption system for a group of two or more
treatment works nor reflect regional archi- homes;
tectural tradition. (3) The cost of land acquired for
b. The cost of land acquired for the mitiga- composting or temporary storage of compost
tion of adverse environmental effects identi- residues which result from wastewater treat-
fied pursuant to an environmental review ment;
under NEPA. (4) The cost of land acquired for storage of
treated wastewater in land treatment sys-
C. Privately or Publicly Owned Small and tems before land application. The total land
Onsite Systems area for construction of a pond for both
treatment and storage of wastewater is al-
1. Allowable costs for small and onsite sys-
lowable if the volume necessary for storage
tems serving residences and small commer-
is greater then the volume necessary for
cial establishments inhabited on or before
treatment. Otherwise, the allowable cost will
December 27, 1977, include a. through e.
be determined by the ratio of the storage
below. Alternatively, the two-thirds rule at
volume to the total volume of the pond.
40 CFR 35.2116(b) may be used to determine b. The cost of complying with the require-
allowable residential flows to be served by ments of the Uniform Relocation Assistance
publicly owned small and alternative waste- and Real Property Acquisition Policies Act
water systems, including a. through e. below: of 1970 (42 U.S.C. 4621 et seq., 4651 et seq.),
a. The cost of major rehabilitation, up- under part 4 of this chapter for land nec-
grading, enlarging and installing small and essary for the building of treatment works.
onsite systems, but in the case of privately c. The cost of contracting with another
owned systems, only for principal residences. public agency or qualified private contractor
b. Conveyance pipes from property line to for part or all of the required acquisition
offsite treatment unit which serves a cluster and/or relocation services.
of buildings. d. The cost associated with the preparation
c. Treatment and treatment residue dis- of the treatment works site before, during
posal portions of toilets with composting and, to the extent agreed on in the grant
tanks, oil flush mechanisms, or similar in- agreement, after building. These costs in-
house devices. clude:
d. Treatment or pumping units from the (1) The cost of demolition of existing struc-
incoming flange when located on private tures on the treatment works site (including
property and conveyance pipes, if any, to the rights-of-way) if building cannot be under-
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Environmental Protection Agency Pt. 35, Subpt. I, App. A
life) of removal, relocation or replacement of cost less the cost attributable to the equip-
utilities, provided the grantee is legally obli- ment’s anticipated use on existing collection
gated to pay under state or local law; and sewers not funded on the grant. This calcula-
(3) The cost of restoring streets and rights- tion shall be based on: (1) The portion of the
of-way to their original condition. The need total collection system paid for by the grant,
for such restoration must result directly (2) a demonstrable frequency of need, and (3)
from the construction and is generally lim- the need for the equipment to preclude the
ited to repaving the width of trench. discharge or bypassing of untreated waste-
e. The cost of acquiring all or part of an water.
existing publicly or privately owned waste- f. The cost of mobile equipment necessary
water treatment works provided all the fol- for the operation of the overall wastewater
lowing criteria are met: treatment facility, transmission of waste-
(1) The acquisition, in and of itself, consid- water or sludge, or for the maintenance of
ered apart from any upgrade, expansion or equipment. These items include:
rehabilitation, provides new pollution con- (1) Portable stand-by generators;
trol benefits;
(2) Large portable emergency pumps to
(2) The acquired treatment works was not
provide ‘‘pump-around’’ capability in the
built with previous Federal or State finan-
event of pump station failure or pipeline
cial assistance;
breaks; and
(3) The primary purpose of the acquisition
is not the reduction, elimination, or redis- (3) Sludge or septage tankers, trailers, and
tribution of public or private debt; and other vehicles having as their sole purpose
(4) The acquisition does not circumvent the transportation of liquid or dewatered
the requirements of the Act, these regula- wastes from the collector point (including
tions, or other Federal, State or local re- individual or on-site systems) to the treat-
quirements. ment facility or disposal site.
2. Unallowable costs for land and rights-of- g. Replacement parts identified and ap-
way include: proved in advance by the Regional Adminis-
a. The costs of acquisition (including asso- trator as necessary to assure uninterrupted
ciated legal, administrative and engineering operation of the facility, provided they are
etc.) of sewer rights-of-way, waste treatment critical parts or major systems components
plant sites (including small system sites), which are:
sanitary landfill sites and sludge disposal (1) Not immediately available and/or whose
areas except as provided in paragraphs 1. a. procurement involves an extended ‘‘lead-
and b. of this section. time;’’
b. Any amount paid by the grantee for eli- (2) Identified as critical by the equipment
gible land in excess of just compensation, supplier(s); or
based on the appraised value, the grantee’s (3) Critical but not included in the inven-
record of negotiation or any condemnation tory provided by the equipment supplier(s).
proceeding, as determined by the Regional 2. Unallowable costs of equipment, mate-
Administrator. rials and supplies include:
c. Removal, relocation or replacement of a. The costs of equipment or material pro-
utilities located on land by privilege, such as cured in violation of the procurement stand-
franchise. ards in 2 CFR 200.317 through 2 CFR 200.326
E. Equipment, Materials and Supplies and 2 CFR 1500.9 and 1500.10.
b. The cost of furnishings including drap-
1. Allowable costs of equipment, materials eries, furniture and office equipment.
and supplies include: c. The cost of ordinary site and building
a. The cost of a reasonable inventory of maintenance equipment such as lawnmowers
laboratory chemicals and supplies necessary and snowblowers.
to initiate plant operations and laboratory
d. The cost of vehicles for the transpor-
items necessary to conduct tests required for
tation of the grantees’ employees.
plant operation.
e. Items of routine ‘‘programmed’’ mainte-
b. The costs for purchase and/or transpor-
nance such as ordinary piping, air filters,
tation of biological seeding materials re-
couplings, hose, bolts, etc.
quired for expeditiously initiating the treat-
ment process operation. F. Industrial and Federal Users
c. Cost of shop equipment installed at the
treatment works necessary to the operation 1. Except as provided in paragraph F.2.a.,
of the works. allowable costs for treatment works serving
d. The costs of necessary safety equipment, industrial and Federal facilities include de-
provided the equipment meets applicable velopment of a municipal pretreatment pro-
Federal, State, local or industry safety re- gram approvable under part 403 of this chap-
quirements. ter, and purchase of monitoring equipment
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Pt. 35, Subpt. I, App. A 40 CFR Ch. I (7–1–21 Edition)
2. Unallowable costs for treatment works (3) The additions could have been included
serving industrial and Federal facilities in- in the original grant award and:
clude: (a) Are the result of one of the following:
a. The cost of developing an approvable (i) A change in the project performance
municipal pretreatment program when per- standards required by EPA or the State;
formed solely for the purpose of seeking an (ii) A written understanding between the
allowance for removal of pollutants under Regional Administrator and grantee prior to
part 403 of this chapter. or included in the original grant award;
b. The cost of monitoring equipment used (iii) A written direction by the Regional
by industry for sampling and analysis of in- Administrator to delay building part of the
dustrial discharges to municipal treatment treatment works; or
works. (iv) A major change in the treatment
c. All incremental costs for sludge manage-
works’ design criteria that the grantee can-
ment incurred as a result of the grantee pro-
not control; or
viding removal credits to industrial users
(b) Meet all the following conditions:
under 40 CFR 403.7 beyond those sludge man-
agement costs that would otherwise be in- (i) If the original grant award was made
curred in the absence of such removal cred- after December 28, 1981, the treatment works
its. has not completed its first full year of oper-
ation;
G. Infiltration/Inflow (ii) The additions are not caused by the
grantee’s mismanagement or the improper
1. Allowable costs include:
actions of others;
a. The cost of treatment works capacity
(iii) The costs of rework, delay, accelera-
adequate to transport and treat nonexcessive
tion or disruption that are a result of build-
infiltration/inflow under § 35.2120.
ing the additions are not included in the
b. The costs of sewer system rehabilitation
grant; and
necessary to eliminate excessive infiltration/
inflow as determined in a sewer system (iv) The grant does not include an allow-
study under § 35.2120. ance for facilities planning or design of the
2. Unallowable costs include: additions.
a. When the Regional Administrator deter- (4) This provision applies to failures that
mines that the flow rate is not significantly occur either before or after the initiation of
more than 120 gallons per capita per day operation. This provision does not cover a
under § 35.2120(c)(2)(ii), the incremental cost treatment works that fails at the end of its
of treatment works capacity which is more design life.
than 120 gallons per capita per day. e. Costs of royalties for the use of or rights
in a patented process or product with the
H. Miscellaneous Costs prior approval of the Regional Adminis-
trator.
1. Allowable costs include:
a. The costs of salaries, benefits and ex- f. Costs allocable to the water pollution
pendable materials the grantee incurs for the control purpose of multiple purpose projects
project. as determined by applying the Alternative
b. Unless otherwise specified in this regula- Justifiable Expenditure (AJE) method de-
tion, the costs of meeting specific Federal scribed in the CG series. Multiple purpose
statutory procedures. projects that combine wastewater treatment
c. Costs for necessary travel directly re- with recreation do not need to use the AJE
lated to accomplishment of project objec- method, but can be funded at the level of the
tives. Travel not directly related to a spe- most cost-effective single-purpose alter-
cific project, such as travel to professional native.
meetings, symposia, technology transfer g. Costs of grantee employees attending
seminars, lectures, etc., may be recovered training workshops/seminars that are nec-
only under an indirect cost agreement. essary to provide instruction in administra-
d. The costs of additions to a treatment tive, fiscal or contracting procedures re-
works that was assisted under the Federal quired to complete the construction of the
Water Pollution Control Act of 1956 (Pub. L. treatment works, if approved in advance by
84–660), or its amendments, and that fails to the Regional Administrator.
meet its project performance standards pro- 2. Unallowable costs include:
vided: a. Ordinary operating expenses of the
(1) The project is identified on the State grantee including salaries and expenses of
priority list as a project for additions to a elected and appointed officials and prepara-
treatment works that has received previous tion of routine financial reports and studies.
Federal funds; b. Preparation of applications and permits
(2) The grant application for the additions required by Federal, State or local regula-
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Environmental Protection Agency Pt. 35, Subpt. I, App. B
of special departments, agencies, commis- ual and of user charge and sewer use ordi-
sions, regions, districts or other units of gov- nance systems.
ernment. (3) Any adjustments to reflect the actual
d. Approval, preparation, issuance and sale reasonable and necessary costs for preparing
of bonds or other forms of indebtedness re- the pre-bid package.
quired to finance the project and the interest (4) Post-construction activities required by
on them. project performance certification require-
e. The costs of replacing, through recon- ments.
struction or substitution, a treatment works (5) Contract and project administration ac-
that was assisted under the Federal Water tivities including the review of contractor
Pollution Control Act of 1956 (Pub. L. 84–660), vouchers and payment requests, preparation
or its amendments, and that fails to meet its of monitoring reports, grant administration
project performance standards. This provi- and accounting services, routine legal costs,
sion applies to failures that occur either be- cost of eligible real property.
fore or after the initiation of operation. This
(6) Contingencies.
provision does not apply to an innovative
and alternative treatment works eligible for 2. Unallowable costs include:
funding under § 35.2032(c) or a treatment a. All costs in excess of the maximum
works that fails at the end of its design life agreed Federal share.
or to a failed rotating biological contactor b. Costs of facilities planning where the
eligible for funding under § 35.2035. grantee has received a Step 1 grant.
f. Personal injury compensation or dam- [49 FR 6234, Feb. 17, 1984, as amended at 50
ages arising out of the project. FR 45896, Nov. 4, 1985; 55 FR 27098, June 29,
g. Fines and penalties due to violations of, 1990; 79 FR 76057, Dec. 19, 2014]
or failure to comply with, Federal, State or
local laws, regulations or procedures.
h. Costs outside the scope of the approved
APPENDIX B TO SUBPART I OF PART 35—
project. ALLOWANCE FOR FACILITIES PLAN-
i. Costs for which grant payment has been NING AND DESIGN
or will be received from another Federal
agency. 1. This appendix provides the method EPA
j. Costs of treatment works for control of will use to determine both the estimated and
pollutant discharges from a separate storm the final allowance under § 35.2025 for facili-
sewer system. ties planning and design. The Step 2 + 3, Step
k. The cost of treatment works that would 3 and Step 7 grant agreements will include
provide capacity for new habitation or other an estimate of the allowance.
establishments to be located on environ- 2. The Federal share of the allowance is de-
mentally sensitive land such as wetlands or termined by applying the applicable grant
floodplains. percentage in § 35.2152 to the allowance.
l. The costs of preparing a corrective ac- 3. The allowance is not intended to reim-
tion report required by § 35.2218(c). burse the grantee for costs actually incurred
for facilities planning or design. Rather, the
I. Design/Build Project Grants allowance is intended to assist in defraying
1. Allowable costs include: those costs. Under this procedure, questions
a. The costs of supplementing the facilities of equity (i.e., reimbursement on a dollar-
plan to prepare the pre-bid package includ- for-dollar basis) will not be appropriate.
ing the cost of preliminary boring and site 4. The estimated and final allowance will
plans, concept and layout drawings, sche- be determined in accordance with this ap-
matic, general material and major equip- pendix and tables 1, 2 and 3. Table 2 is to be
ment lists and specifications, instructions to used in the event the grantee received a
builders, general and special conditions, grant for facilities planning. Table 3 is to be
project performance standards and permit used to determine the facilities planning al-
limits, applicable State or other design lowance for a Step 7 grant if the grantee did
standards, any requirements to go into bid not receive a Step 1 grant. The amount of
analyses, and other contract documents, the allowance is computed by applying the
schedules, forms and certificates. resulting allowance percentage to the initial
b. The costs for building the project, in- allowable building cost.
cluding: 5. The initial allowable building cost is the
(1) Project costs based on the lowest re- initial allowable cost of erecting, altering,
sponsive, responsible competitive design/ remodeling, improving, or extending a treat-
build project bid. ment works, whether accomplished through
(2) Construction management services in- subagreement or force account. Specifically,
cluding detailed plans and specifications re- the initial allowable building cost is the al-
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view and approval, change order review and lowable cost of the following:
approval, resident inspection, shop drawing a. The initial award amount of all prime
approval and preparation of an O & M man- subagreements for building the project.
463
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Pt. 35, Subpt. I, App. B 40 CFR Ch. I (7–1–21 Edition)
b. The initial amounts approved for force TABLE 1—ALLOWANCE FOR FACILITIES PLANNING
account work performed in lieu of awarding AND DESIGN—Continued
a subagreement for building the project.
c. The purchase price of eligible real prop- Allowance as a
erty. Building cost percentage of
building cost*
6. The estimated allowance is to be based
on the estimate of the initial allowable 120,000 .................................................... 14.1146
building cost. 150,000 .................................................... 13.6631
7. The final allowance will be determined 175,000 .................................................... 13.3597
one time only for each project, based on the 200,000 .................................................... 13.1023
initial allowable building cost, and will not 250,000 .................................................... 12.6832
be adjusted for subsequent cost increases or 300,000 .................................................... 12.3507
350,000 .................................................... 12.0764
decreases. 400,000 .................................................... 11.8438
8. For a Step 3 or Step 7 project, the grant- 500,000 .................................................... 11.4649
ee may request payment of 50 percent of the 600,000 .................................................... 11.1644
Federal share of the estimated allowance im- 700,000 .................................................... 10.9165
mediately after grant award. Final payment 800,000 .................................................... 10.7062
of the Federal share of the allowance may be 900,000 .................................................... 10.5240
requested in the first payment after the 1,000,000 ................................................. 10.3637
grantee has awarded all prime subagree- 1,200,000 ................................................. 10.0920
1,500,000 ................................................. 9.7692
ments for building the project, received the 1,750,000 ................................................. 9.5523
Regional Administrator’s approval for force 2,000,000 ................................................. 9.3682
account work, and completed the acquisition 2,500,000 ................................................. 9.0686
of all eligible real property. 3,000,000 ................................................. 8.8309
9. For a Step 2 + 3 project, if the grantee 3,500,000 ................................................. 8.6348
has not received a grant for facilities plan- 4,000,000 ................................................. 8.4684
ning, the grantee may request payment of 30 5,000,000 ................................................. 8.1975
percent of the Federal share of the estimated 6,000,000 ................................................. 7.9827
7,000,000 ................................................. 7.8054
allowance immediately after the grant 8,000,000 ................................................. 7.6550
award. Half of the remaining estimated al- 9,000,000 ................................................. 7.5248
lowance may be requested when design of the 10,000,000 ............................................... 7.4101
project is 50 percent complete. If the grantee 12,000,000 ............................................... 7.2159
has received a grant for facilities planning, 15,000,000 ............................................... 6.9851
the grantee may request half of the Federal 17,500,000 ............................................... 6.8300
share of the estimated allowance when de- 20,000,000 ............................................... 6.6984
25,000,000 ............................................... 6.4841
sign of the project is 50 percent complete.
30,000,000 ............................................... 6.3142
Final payment of the Federal share of the al- 35,000,000 ............................................... 6.1739
lowance may be requested in the first pay- 40,000,000 ............................................... 6.0550
ment after the grantee has awarded all prime 50,000,000 ............................................... 5.8613
subagreements for building the project, re- 60,000,000 ............................................... 5.7077
ceived the Regional Administrator’s ap- 70,000,000 ............................................... 5.5809
proval for force account work, and completed 80,000,000 ............................................... 5.4734
the acquisition of all eligible real property. 90,000,000 ............................................... 5.3803
100,000,000 ............................................. 5.2983
10. The allowance does not include archi-
120,000,000 ............................................. 5.1594
tect or engineering services provided during 150,000,000 ............................................. 4.9944
the building of the project, e.g., reviewing 175,000,000 ............................................. 4.8835
bids, checking shop drawings, reviewing 200,000,000 ............................................. 4.7894
change orders, making periodic visits to job
NOTE: The allowance does not reimburse for costs incurred.
sites, etc. Architect or engineering services Accordingly, the allowance tables shall not be used to deter-
during the building of the project are allow- mine the compensation for facilities planning or design serv-
able costs subject to this regulation and 40 ices. The compensation for facilities planning or design serv-
ices should be based upon the nature, scope and complexity
CFR part 33. of the services required by the community.
11. The State will determine the amount *Interpolate between values.
and conditions of any advance under
§ 35.2025(b), not to exceed the Federal share of TABLE 2—ALLOWANCE FOR DESIGN ONLY
the estimated allowance.
12. EPA will reduce the Federal share of Allowance as a
Building cost percentage of
the allowance by the amount of any ad- building cost*
vances the grantee received under § 35.2025(b).
$100,000 or less ...................................... 8.5683
TABLE 1—ALLOWANCE FOR FACILITIES PLANNING 120,000 .................................................... 8.3808
150,000 .................................................... 8.1570
AND DESIGN
175,000 .................................................... 8.0059
200,000 .................................................... 7.8772
Allowance as a
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Environmental Protection Agency § 35.3000
TABLE 2—ALLOWANCE FOR DESIGN ONLY— TABLE 3—ALLOWANCE FOR FACILITIES PLANNING
Continued FOR DESIGN/BUILD PROJECTS—Continued
Allowance as a Allowance as a
Building cost percentage of Building cost (dollars) percentage of
building cost* building cost*
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§ 35.3005 40 CFR Ch. I (7–1–21 Edition)
of the Pacific Islands (Palau), the Com- the States that includes consultation
monwealth of the Northern Marianas, with the States in formulation of pol-
and any Indian Tribe, band, group, or icy and guidance by EPA. EPA expects
community recognized by the Sec- States to undertake full delegation of
retary of the Interior and exercising all project level activities, including
governmental authority over a Federal preliminary determinations of non-del-
Indian reservation, provided that the egable requirements. The objective of
Tribe satisfies the following criteria: delegation is to eliminate duplication
(1) The Indian Tribe has a governing of Federal and State effort in the man-
body carrying out substantial govern- agement of the construction grant pro-
mental duties and powers. The Tribe gram, to increase State participation
must submit a narrative statement to in the construction grant program, and
the Regional Administrator describing to improve operating efficiency.
the form of the Tribal government, de- (b) Program delegation is to be ac-
scribing the types of essential govern- complished through a formal delega-
mental functions currently performed tion agreement between the Regional
and identifying the source of the au- Administrator and the State. The dele-
thority to perform these functions.
gation agreement will specify the func-
(2) The functions to be exercised by
tions which the State will perform and
the Indian Tribe pertain to the man-
procedures for State certification to
agement and protection of water re-
EPA.
sources which are held by an Indian
Tribe, held by the United States in (c) EPA will overview the perform-
trust for Indians, held by a member of ance of the program under delegation
an Indian Tribe if such property is sub- to ensure that progress is being made
ject to a trust restriction on alien- toward meeting the construction grant
ation, or otherwise within the borders program objectives and that the State
of an Indian reservation. Assertions by is continuing to employ administra-
the Indian Tribe with respect to this tive, fiscal, and program controls to
criterion will be provided by EPA to guard against fraud, misuse, and mis-
adjacent governmental entities in ac- management of public funds. Overview
cordance with 40 CFR 130.15. will also include review of the State
(3) The Indian Tribe is reasonably ex- management process to ensure it is ef-
pected to be capable, in the Regional ficient, effective and assures timely
Administrator’s judgment, of carrying State reviews.
out the functions to be exercised in a
manner consistent with the terms and § 35.3010 Delegation agreement.
purposes of the Clean Water Act and (a) Before execution of the delegation
applicable regulations. agreement, the Regional Administrator
(c) Where a Tribe has previously must determine that the unit of the
qualified for treatment as a State State agency designated to implement
under a Clean Water Act or Safe Drink- the agreement is capable of carrying
ing Water Act program, the Tribe need out the delegated functions. The Re-
only provide the required information gional Administrator will evaluate
which had not been submitted in a pre- those aspects of the unit which directly
vious treatment as a State application. affect the State’s capability to imple-
[48 FR 37818, Aug. 19, 1983, as amended at 55 ment the agreement.
FR 27098, June 29, 1990] (b) In the delegation agreement, the
State agency will assure the Regional
§ 35.3005 Policy. Administrator that it will execute its
(a) EPA’s policy is to delegate man- responsibilities under the delegation
agement of the wastewater treatment agreement in conformance with all ap-
works construction grant program to plicable Federal laws, regulations, or-
the maximum extent possible con- ders, and policies.
sistent with the objectives of the Act, (c) The delegation agreement will:
prudent fiscal management, and EPA’s (1) Designate the organizational unit
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overall national responsibility for the within the State responsible for the
program. The policy is premised on an implementation of the delegation
on-going partnership between EPA and agreement;
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Environmental Protection Agency § 35.3020
(2) List the functions delegated and nical assistance, and assisting the com-
functions to be delegated, with a sched- munity in exercising its resident engi-
ule for their assumption by the State; neering responsibility. In this capacity,
(3) Identify procedures to be followed the State is in the same position as a
and records to be kept by the State and private entity and cannot require a
EPA in carrying out each delegated small community to hold the State
function; harmless from negligent acts or omis-
(4) Identify the staffing, hiring, train- sions. The State may also execute an
ing, and funding necessary to carry out agreement with any organization with-
the delegated functions; in the State government, other than
(5) Estimate program costs by year the State agency, which is capable of
for the term of the delegation agree- performing these services. The terms of
ment; the agreement to provide these services
(6) Identify an accounting system, ac- to small communities must be ap-
ceptable to the Regional Adminis- proved by the Regional Administrator
trator, which will properly identify and before execution of the agreement.
relate State costs to the conduct of (c) The Regional Administrator shall
delegated functions; and retain overall responsibility for the
(7) Identify the form and content of construction grant program and exer-
the system for EPA overview of State cise direct authority for the following:
performance consistent with the re- (1) Construction grant assistance
quirements in § 35.3025 of this subpart, awards, grant amendments, payments,
including the frequency, method, and and terminations;
extent of monitoring, evaluation, and (2) Projects where an overriding Fed-
reporting. eral interest requires greater Federal
(d) The term of the delegation agree- involvement;
ment shall generally be five years. As (3) Final determinations under Fed-
subsequent construction management eral statutes and Executive Orders
assistance is awarded, the delegation (e.g., the National Environmental Pol-
agreement may be amended to main- icy Act of 1969, 42 U.S.C. 4321 et seq.,
tain a five-year period. Title VI of the Civil Rights Act of 1964,
(e) The delegation agreement will be 42 U.S.C. 2000d et seq.), except for sec-
revised, as necessary, to reflect sub- tions 201, 203, 204, and 212 of the Clean
stantial program or procedural Water Act;
changes, as determined by the Regional (4) Final resolution of construction
Administrator. grant audit exceptions; and
(Approved by the Office of Management and (5) Procurement determinations list-
Budget under control number 2000–0417) ed under 40 CFR 33.001(g).
munity contracting agent and under- with all delegable pre-award require-
take responsibilities such as negoti- ments consists of certification of com-
ating subagreements, providing tech- pliance with the following sections of
467
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§ 35.3025 40 CFR Ch. I (7–1–21 Edition)
subpart I of this part: § 35.2030 (Facili- will negotiate and agree upon outputs,
ties planning); § 35.2040 (a) and (b) where required by the plan for over-
(Grant application); § 35.2042 (Review of view, to cover priority objectives for
grant applications); and §§ 35.2100 (Lim- the upcoming year. This negotiation
itations on award) through and includ- should also result in development of
ing 35.2125, except for § 35.2101 (Ad- the work program required for the sec-
vanced treatment reviews for projects tion 205(g) assistance application, pur-
with incremental capital advanced suant to subpart A, § 35.130 of this part.
treatment costs of over $3 million), Where the assistance application cov-
§ 35.2112 (Marine waiver discharge appli- ers a budget period beyond the annual
cants), and § 35.2113 (final decisions overview program period, the assist-
under the National Environmental Pol- ance award may be made for the full
icy Act). budget period, contingent on future ne-
gotiation of annual outputs under this
§ 35.3025 Overview of State perform- paragraph for subsequent years of the
ance under delegation. budget period.
The Regional Administrator will re- (c) Monitoring and evaluating program
view the performance of a delegated performance. Monitoring and evaluation
State through an annual overview pro- of program performance (including
gram, developed in accordance with State reporting) is based on the plan
procedures agreed to in the delegation for overview agreed to in advance, and
agreement (§ 35.3010(c)(7)). The purpose should be appropriate to the delegation
of the overview program is to ensure situation existing between the Region
that both the delegated State and EPA and State. It should take into account
efficiently and effectively execute the past performance of the State and the
fiscal and program responsiblilities extent of State experience in admin-
under the Clean Water Act and related istering the delegated functions. An
legislation. The overview program is on-site evaluation will occur at least
comprised of three steps: annually and will cover, at a minimum,
(a) Developing a plan for overview. The negotiated annual outputs, perform-
plan for overview specifies priority ob- ance expected in the delegation agree-
jectives, key measures of performance, ment and, where applicable, evaluation
and monitoring and evaluation activi- of performance under the assistance
ties (including State reporting to EPA) agreement as provided in 40 CFR 35.150.
for the upcoming year. EPA and the The evaluation will cover performance
State should agree to a plan for over- of both the Region and the State. Upon
view in advance of the upcoming year. completion of the evaluation, the dele-
(1) Priority objectives will include gation agreement may be revised, if
both program and management objec- necessary, to reflect changes resulting
from the evaluation. The Regional Ad-
tives. In developing the State priority
ministrator may terminate or annual
objectives, the national priorities iden-
any section 205(g) financial assistance
tified by the Administrator on an an-
for cause in accordance with 2 CFR
nual basis must, at a minimum, be ad-
200.338 through 2 CFR 200.342 Remedies
dressed and applied as appropriate to
for Noncompliance.
each State. In addition, the Regional
Administrator and the State may iden- (Approved by the Office of Management and
tify other objectives unique to the situ- Budget under control number 2000–0417)
ation in the State. [48 FR 37818, Aug. 19, 1983, as amended at 79
(2) For each priority objective, the FR 76057, Dec. 19, 2014]
plan for overview will specify key
measures of performance (both quan- § 35.3030 Right of review of State deci-
titative and qualitative), identify sion.
which measures will require the nego- (a) Any construction grant applica-
tiation of outputs, and enumerate the tion or grantee who has been adversely
specific monitoring and evaluation ac- affected by a State’s action or omission
tivities and methods planned for the may request Regional review of such
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Environmental Protection Agency § 35.3100
The State agency will make a final de- the Act, part 25 of this chapter, and
cision in accordance with procedures this subpart.
set forth in the delegation agreement. (b) The Regional Administrator or
The State must provide, in writing, the State, as mutually agreed, will
normally within 45 days of the date it make the draft delegation agreement,
receives the petition, the basis for its any proposed substantial amendment
decision regarding the disputed action to the delegation agreement, and the
or omission. The final State decision proposed annual overview program,
must be labeled as such and, if adverse available to the public for comment,
to the applicant or grantee, must in- and provide notice of availability, suf-
clude notice of the right to request Re- ficiently in advance of execution to
gional review of the State decision allow for timely comment.
under this section. A State’s failure to (c) If, based on comments received,
address the disputed action or omission the Regional Administrator or State
in a timely fashion, or in writing, will determines that significant interest ex-
not preclude Regional review. ists, the State and EPA will consult
(b) Requests for Regional review with interested and affected groups and
must include: citizens prior to execution of the dele-
gation agreement, substantial amend-
(1) A copy of any written State deci-
ment, or annual overview program. If
sion. the Regional Administrator or State
(2) A statement of the amount in dis- determines that significant interest
pute, and desire for a public meeting exist,
(3) A description of the issues in- the Region or State will hold one or
volved, and more public meetings at least 30 days
(4) A concise statement of the objec- prior to execution.
tions to the State decision.
The request must be filed by registered Subpart K—State Water Pollution
mail, return receipt requested, within Control Revolving Funds
thirty days of the date of the State de-
cision or within a reasonable time if AUTHORITY: Sections 205(m), 501(a) and
the State fails to respond in writing to title VI of the Clean Water Act, as amended,
the request for review. 33 U.S.C. 1285(m), 33 U.S.C. 1361(a), 33 U.S.C.
(c) The Region shall determine 1381–1387.
whether the State’s review is com- SOURCE: 55 FR 10178, Mar. 19, 1990, unless
parable to a dispute decision official’s otherwise noted.
(DDO) review pursuant to 2 CFR part
1500, subpart E. If the State’s review is § 35.3100 Policy and purpose.
comparable, Regional review of the (a) The Agency intends to implement
State’s decision will be conducted by the State water pollution control re-
the Regional Administrator. If the volving fund program in a manner that
State’s review is not comparable, the preserves for States a high degree of
DDO will review the State’s decision flexibility for operating their revolving
and issue a written decision. Review of funds in accordance with each State’s
either a Regional Administrator or unique needs and circumstances. The
DDO decision may be requested pursu- purpose of these regulations is to ad-
ant to 2 CFR part 1500, subpart E. vance the general intent of title VI of
the Clean Water Act, which is to en-
(Approved by the Office of Management and
Budget under control number 2040–0095) sure that each State’s program is de-
signed and operated to continue pro-
[50 FR 45896, Nov. 4, 1985, as amended at 79 viding assistance for water pollution
FR 76057, Dec. 19, 2014] control activities in perpetuity.
(b) These regulations reflect statu-
§ 35.3035 Public participation. tory and program requirements that
(a) Public participation during the have been previously published in the
development, review, approval, and Initial Guidance for State Revolving
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substantial revision of the delegation Funds, which was signed by the Assist-
agreement will be in accordance with ant Administrator for Water on Janu-
the requirements of section 101(e) of ary 28, 1988, and the supplementary
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§ 35.3105 40 CFR Ch. I (7–1–21 Edition)
(g) Funds ‘‘directly made available by’’ grant (i.e., there are no other issues
capitalization grants. Funds equaling holding up the award), the head or
the amount of the grant. chief legal officer of the State agency
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Environmental Protection Agency § 35.3115
which has direct responsibility for ad- in which those funds are available. If a
ministering the SRF program may sign State fails to file a Notice of Intent on
the certification at the time of the cap- or before the prescribed date, then the
italization grant award, provided the State may not transfer title II allot-
capitalization grant agreement con- ments into an SRF in the upcoming fis-
tains a special condition requiring the cal year. A timely Notice of Intent
State to submit the AG/designee’s con- may be later withdrawn or amended.
currence to EPA within a reasonable (3) When the capitalization grant is
time, not to exceed 120 days, after the awarded, funds requested under section
grant is awarded. 205(m) of the Act will be obligated
(e) Allotment. (1) Appropriations for under title VI for the activities of the
fiscal years 1987 through 1990 under SRF. If a Notice of Intent anticipates
both title II and title VI programs will transfer of funds under the authority of
be allotted in accordance with the for- section 205(m), but those funds are not
mula contained in section 205(c)(3) of so obligated by the end of the two year
the Act. period of availability, they will be sub-
(2) Title VI funds are available for ject to reallotment as construction
the Agency to obligate to the State grant funds.
during the fiscal year in which they are (g) Reserves and transferred allotments.
allotted and during the following fiscal (1) Funds reserved under section 205(g)
year. The amount of any title VI allot- of the Act can be used to develop SRF
ment not obligated to the State at the programs. However, before any of these
end of this period of availability will be funds may be used for purposes of the
reallotted for title VI purposes in ac- SRF, the State must establish to the
cordance with 40 CFR 35.2010. satisfaction of the RA that adequate
(3) A State that does not receive funds, up to the section 205(g) max-
grants that obligate all the funds allot- imum, will be available from any
ted to it under title VI in the first year source to administer the construction
of its availability will not receive real- grants program.
lotted funds from that appropriation. (2) Funds reserved under sections
(4) Notwithstanding 40 CFR 35.910 and 205(j)(1) and 205(j)(5) of the Act must be
40 CFR 35.2010(a), deobligations and re- calculated based on the State’s full
allotments of title II funds may be title II allotment, and cannot be trans-
transferred to a title VI capitalization ferred to the SRF.
grant regardless of either the year in (3) Funds reserved under sections
which the title II funds were originally 201(l)(2), 205(h), and 205(i) of the Act
allotted or the year in which they are must also be calculated based upon the
deobligated or reallotted. State’s full title II allotment. However,
(f) Transfer of title II allotments. A these reserves may be transferred into
State may exercise the option to trans- an SRF.
fer a portion of its title II allotment (4) The State must reserve from each
for deposit, through a capitalization fiscal year’s title VI allotment the
grant, into an established water pollu- greater of one percent of its allotment
tion control revolving fund, under sec- or $100,000 to carry out planning under
tion 205(m) of the Act. sections 205(j) and 303(e) of the Act.
(1) If the State elects this option, the (Approved by the Office of Management and
Governor of the State must submit a Budget under control number 2040–0118)
Notice of Intent to the RA specifying
the amount of the title II allotment § 35.3115 Eligible activities of the SRF.
the State intends to use for title VI Funds in the SRF shall not be used to
purposes during the fiscal year for provide grants. SRF balances must be
which it is submitted. The Notice may available in perpetuity and must be
also identify anticipated, unobligated used solely to provide loans and other
title II funds from the prior fiscal year, authorized forms of financial assist-
and request transfer of those funds as ance:
well. (a) To municipalities, inter-munic-
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(2) Each Notice of Intent must be ipal, interstate, or State agencies for
submitted on or before July 3 of the the construction of publicly owned
year preceding the Federal fiscal year wastewater treatment works as these
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§ 35.3120 40 CFR Ch. I (7–1–21 Edition)
are defined in section 212 of the Act (iii) After March 19, 1990 must meet
and that appear on the State’s priority the requirements of this rule to be
list developed pursuant to section 216 fully eligible.
of the Act; and (2) Where the original debt for a
(b) For implementation of a nonpoint project was in the form of a multi-pur-
source pollution control management pose bond incurred for purposes in ad-
program under section 319 of the Act; dition to wastewater treatment facility
and construction, an SRF may provide refi-
(c) For development and implementa- nancing only for eligible purposes, and
tion of an estuary conservation and not for the entire debt.
management plan under section 320 of (c) Guarantee or purchase insurance for
the Act. local debt obligations. The SRF may
guarantee local debt obligations where
§ 35.3120 Authorized types of assist- such action would improve credit mar-
ance.
ket access or reduce interest rates. The
The SRF may provide seven general SRF may also purchase or provide bond
types of financial assistance. insurance to guarantee debt service
(a) Loans. The SRF may award loans payment.
at or below market interest rates, or (d) Guarantee SRF debt obligations.
for zero interest. The SRF may be used as security or as
(1) Loans may be awarded only if: a source of revenue for the payment of
(i) All principal and interest pay- principal and interest on revenue or
ments on loans are credited directly to general obligation bonds issued by the
the SRF; State provided that the net proceeds of
(ii) The annual repayment of prin- the sale of such bonds are deposited in
cipal and payment of interest begins the SRF.
not later than one year after project (e) Loan guarantees for ‘‘sub-State re-
completion; volving funds.’’ The SRF may provide
(iii) The loan is fully amortized not loan guarantees for similar revolving
later than twenty years after project funds established by municipal or
completion; and intermunicipal agencies, to finance ac-
(iv) Each loan recipient establishes tivities eligible under title VI.
one or more dedicated sources of rev- (f) Earn interest on fund accounts. The
enue for repayment of the loan. SRF may earn interest on Fund ac-
(2) Where construction of a treat- counts.
ment works has been phased or seg- (g) SRF administrative expenses. (1)
mented, loan repayment requirements Money in the SRF may be used for the
apply to the completion of individual reasonable costs of administering the
phases or segments. SRF, provided that the amount does
(b) Refinancing existing debt obliga- not exceed 4 percent of all grant
tions. The SRF may buy or refinance awards received by the SRF. Expenses
local debt obligations at or below mar- of the SRF in excess of the amount per-
ket rates, where the initial debt was mitted under this section must be paid
incurred after March 7, 1985, and build- for from sources outside the SRF.
ing began after that date. (2) Allowable administrative costs in-
(1) Projects otherwise eligible for re- clude all reasonable costs incurred for
financing under this section on which management of the SRF program and
building began: for management of projects receiving
(i) Before January 28, 1988 (the effec- financial assistance from the SRF.
tive date of the Initial Guidance for Reasonable costs unique to the SRF,
State Revolving Funds) must meet the such as costs of servicing loans and
requirements of title VI to be fully eli- issuing debt, SRF program start-up
gible. costs, financial management, and legal
(ii) After January 28, 1988, but before consulting fees, and reimbursement
the effective date of this rule, must costs for support services from other
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meet the requirements of title VI and State agencies are also allowable.
of the Initial Guidance for State Re- (3) Unallowable administrative costs
volving Funds to be fully eligible. include the costs of administering the
472
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Environmental Protection Agency § 35.3135
construction grant program under sec- publicly owned portion of the treat-
tion 205(g), permit programs under sec- ment works.
tions 402 and 404 and Statewide waste- (d) Private operation. Contractual ar-
water management planning programs rangements for the private operation of
under section 208(b)(4). a publicly owned treatment works will
(4) Expenses incurred issuing bonds not affect the eligibility of the treat-
guaranteed by the SRF, including the ment works for SRF financing.
costs of insuring the issue, may be ab- (e) Water quality management plan-
sorbed by the proceeds of the bonds, ning. The SRF may provide assistance
and need not be charged against the 4 only to projects that are consistent
percent administrative costs ceiling. with any plans developed under sec-
The net proceeds of those issues must tions 205(j), 208, 303(e), 319 and 320 of the
be deposited in the Fund. Act.
§ 35.3125 Limitations on SRF assist- § 35.3130 The capitalization grant
ance. agreement.
(a) Prevention of double benefit. If the (a) Contents. The capitalization grant
SRF makes a loan in part to finance agreement must contain or incorporate
the cost of facility planning and prepa- by reference the State’s application,
ration of plans, specifications, and esti- Intended Use Plan, agreed upon pay-
mates for the building of treatment ment schedule, State environmental
works and the recipient subsequently review process and certifications or
receives a grant under section 201(g) for demonstrations of other agreement re-
the building of treatment works and an quirements and, where used, the SRF
allowance under section 201(1)(1), the Operating Agreement.