584 905R78113
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D C. 20460
3&"^\
OFFICE OF WATER AND
HAZARDOUS MATERIALS
FROM: THOMAS C. JORLING, ASSISTANT ADMINISTRATOR
PUBLIC PARTICIPATION IN PROGRAMS UNDER THE RESOURCE CONSERVATION AND
RECOVERY ACT, THE SAFE DRINKING WATER ACT, AND THE CLEAN WATER ACT
Attached are public participation regulations which were recently
proposed by the Environmental Protection Agency. The proposed regulations
cover two areas: (1) overall regulations for programs under the Resource
Conservation and Recovery Act, the Safe Drinking Water Act, and the Clean
Water Act (40 CFR Part 25). (2) amendments to construction grants program
regulations (40 CFR Part 35) which would implement the new overall public
participation requirements of 40 CFR Part 25 with respect to the wastewater
treatment facility planning program and other aspects of the construction
grants program.
The Environmental Protection Agency values the views and suggestions
of members of the public regarding these important regulations. I urge you
to read the attached document carefully and provide us with your reactions,
comments, and recommendations for changes. Comments on the proposed
regulations may be submitted to the Agency through October 6, 1978.
As indicated in the introduction (page 2) to the proposed regulations,
written comments should be addressed to Lee Daneker, Environmental
Protection Agency, WH-556, 401 M Street, S.W., Washington, D.C. 20460.
The introduction (pages 2 and 3) also provides details regarding other
opportunities for public involvement in the regulation development process.
These consist of a toll-free telephone number to make comments or ask
questions regarding the proposed public participation regulations, and a
public hearing on the regulations to be held in Washington, D.C. on
September 26, 1978.
--"'-'--Cuion. Agency
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ENVIRONMENTAL PROTECTION AGENCY
[40 CFR Parts 25 and 35]
(FRL 915-1)
PUBLIC PARTICIPATION IN PROGRAMS UNDER THE RESOURCE CONSERVATION AND
RECOVERY ACT, THE SAFE DRINKING WATER ACT, AND THE CLEAN WATER ACT
Proposed Rule and Notice of Public Hearing
AGENCY: Environmental Protection Agency.
ACTION: Proposed Rule and notice of public hearing.
SUMMARY: The provisions which follow include proposed regulations
which would establish overall public participation requirements for
programs under the Safe Drinking Water Act, the Resource Conservation
and Recovery Act, and the Clean Water Act. These would replace existing
regulations for public participation in water programs and interim final
regulations for public participation in solid waste management programs.
The proposed regulations also include provisions implementing the new
overall public participation requirements with respect to the municipal
wastewater treatment facility construction grant program. Where appro-
priate, regulations applicable to other Clean Water Act, Safe Drinking
Water Act, and Resource Conservation and Recovery Act programs will be
supplemented or revised at a later date to specify where the new overall
public participation procedural requirements will be applicable. The
proposed regulations would apply to covered activities which occur after
the date of promulgation and to grants and significant grant amendments
nade after that date. Existing public participation regulations would
remain applicable, in uncodified form, to all other ongoing activities.
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DATES: Public Hearing: September 26, 1978 from 1:30 p.m. to 5:30 p.m. and
7:30 p.m. to 10:30 p.m.
Comments must be received on or before October 6, 1978.
ADDRESSES: Public Hearing: Department of Commerce Auditorium
14th and E Streets, N.W.
Washington, D.C.
Send requests to speak to: Ned Sullivan, Environmental Protection
Agency, WH-556, 401 M Street, S.W.,
Washington, D.C. 20460 (For additional
information regarding requests to speak
and the agenda for the hearing see
Public Hearing below)
Send written comments to: Lee Daneker, Environmental Protection
Agency, WH-556, 401 M Street, S.W.,
Washington, D.C. 20460
Telephone Service: EPA will provide, during the hours and on the
days specified below, a toll-free telephone number to assist
the public in making comments or requesting clarifications
regarding the proposed public participation regulations (CFR 40
parts 25 and 35). The toll-free number is 800-424-9390. The
toll-free line will be open only from 1 p.m. to 5 p.m., Eastern
Daylight Time from September 5 through 8, September 25 through
29, and October 2 through 6, 1978. This line will be open for
the sole purpose of hearing comments and providing information
on the proposed public participation regulations.
Comments submitted may be inspected at the Public Information
Reference Unit, EPA Headquarters, Room 2922, Waterside Mall,
401 M Street, S.W., Washington, D.C.
FOR FURTHER INFORMATION CONTACT: Ned Sullivan, Environmental Protection
Agency, WH-556, 401 M Street, S.W.,
Washington, D.C. 20460, (202)755-0511.
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PublIc Hearing
A hearing to receive comments on the proposed public participation
regulations will be held at the Department of Commerce Auditorium,
14th and E Streets, N.W., Washington, D.C., from 1:30 p.m. to 5:30 p.m.
and 7:30 p.m. to 10:30 p.m., on September 26, 1978.
Individuals wishing to comment are requested to submit their
names, addresses, and telephone numbers to Ned Sullivan, Environmental
Protection Agency, WH-556, 401 M Street, S.W., Washington, D.C. 20460.
Requests should indicate the length of time each individual wishes to
comment and any preference to time. Statements will be limited to
a maximum of 10 minutes. Individuals who request to comment will
be notified in advance of the time scheduled for their statement.
Time will be reserved for unscheduled comments. Each individual
who plans to comment is requested to submit one typev/ritten copy
of his or her statement at the hearing. The hearing record will
be closed at the end of the hearing; however, as indicated above,
written and telephone comments on the proposed regulations will be
accepted by EPA if they are received no later than October 6,
1978. The agenda for the hearing is as follows: Afternoon
Session: Introductory Presentation -- 1:30 - 1:50; Question and
and Answer Session --1:50 - 2:10; Scheduled Presentations -- 2:10 -
4:45; Unscheduled Testimony —4:45 - 5:30; Recess — 5:30. Evening
Session: Introductory Presentation —7:30 - 7:50; Question and
Answer Session -- 7:50 - 8:10; Scheduled Presentations -- 8:10 -
9:45; Unscheduled Testimony -- 9:45 - 10:30; Adjourn --10:30.
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BACKGROUND
It is EPA policy that EPA, State and substate agencies implementing
the Clean Water Act, the Resource Conservation and Recovery Act, and the
Safe Drinking Water Act shall provide for, encourage, and assist public
participation.
All Federal programs are intended to serve the public interest,
and all government agencies are, by definition, public servants. EPA's
programs directly and indirectly affect the lives of all citizens.
These citizens have the right to share in program decisions, and public
servants who implement Federal environmental statutes have the responsi-
bility to seek out and be responsive to the concerns of the public in
their decisions. The term, "the public" in the broadest sense means the
people as a whole, the general populace which all Federal programs are
intended to serve.
For any given program decision, however, there are a number
of identifiable "segments of the public" which have an interest in
the outcome. These comprise individuals and organizations, govern-
mental and nongovernmental. Interested and affected segments of
the public may be directly impacted by a decision, either benefi-
cially or adversely, or they may be indirectly affected or otherwise
have some concern about the decision. The segments of the public
relevant to any given decision tend to change over time, as do
their interests in given issues.
EPA wishes to ensure that all interested and affected member of the
public have an opportunity to participate in decisionmaking processes
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under agency programs. In addition to private citizens, parties
affected by agency action may include but are not limited to
representatives of consumer, environmental, and minority associa-
tions; trade, industrial, and labor organizations; agricultural
organizations; public health, scientific, and professional socie-
eties; civic associations; public officials; and governmental and
educational associations. Special effort should be made to ensure
that public interest groups and citizens representing themselves,
whose resources and access to decisionmaking may be limited, have
every opportunity to participate.
It is useful to reflect on the specific meanings of some of
the terms used above. The term "participate" means to take part;
to have a role in program deliberations prior to a decision being
made. The term "encourage" means to stimulate. The term "assist"
means to help, aid, give support. The term "responsive" means
providing a timely answer or reply; reacting in a receptive manner;
demonstrating that serious consideration has been given to public
comment.
Public participation is that part of the decision-making
process that seeks to determine the "public interest" in any given
decision. "Public interest" may be defined as the composite of
continuously shifting individual and group values, viewpoints,
concerns and interests. It is inevitable in many decisions that
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the "public interest" will be partially determined by controversy.
These controversies must be aired early so that issues can be
resolved and timely decisions made.
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DEVELOPMENT OF PROPOSED REGULATIONS FOR PUBLIC PARTICIPATION
Since November 1977, a working group in the Office of Water
and Waste Management (OWWM) has been reviewing public partici-
pation requirements for its areas of responsibility. The working
group developed a set of concept papers addressing revisions to
overall public participation requirements for all programs under
OWWM and new requirements for public participation in the municipal
wastewater treatment construction grants program. These concept
papers were finalized in early March and circulated to approximately
7,000 interested parties including more than 3,000 who were mailed
draft construction grant regulations dated March 3, 1978. The
working group has held two public meetings to receive comment on
the concept papers, met with EPA staff in all ten EPA regions,
received numerous verbal comments telephoned to the Agency, and
met with several outside interest groups including representatives
of several States and municipalities and of the Association of
State and Interstate Water Pollution Control Agencies.
As a result of these outreach activities, the Agency has
received more than 300 written comments on the concept papers.
After considering all comments, the working group has revised the
concept papers. The revisions include: (1) Proposed 40 CFR Part
25 which would establish overall public participation requirements
in programs under the Resource Conservation and Recovery Act, Safe
Drinking Water Act, and Clean Water Act programs. (When the
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proposed 40 CFR Part 25 is promulgated as a final regulation, the
existing 40 CFR Part 105 (Public Participation in Water Pollution
Control) and interim-final 40 CFR Part 249 (Public Participation
in Solid Waste Management) will be deleted.) (2) Proposed revisions
to 40 CFR Part 35 which would implement the new Part 25 with respect
to the wastewater treatment facility construction grants program.
Major issues raised in comments are summarized below. Each
issue is followed by an explanation of changes which are reflected
in the proposed regulations or other ways in which the Agency has
responded to comments received on the concept papers.
DISCUSSION OF COMMENTS RECEIVED ON THE CONCEPT PAPER FOR
PUBLIC PARTICIPATION IN CLEAN WATER ACT, SAFE DRINKING WATER
ACT, AND RESOURCE CONSERVATION AND RECOVERY ACT PROGRAMS:
1. Consistency. One of the issues highlighted for public
comment in the concept papers was whether the new Part 25 would
apply only to v/ater programs or to other OWWM programs under the
Safe Drinking Water Act and the Resource Conservation and Recovery
Act as well. Comment has been virtually unanimous in favor of a
single overall set of public participation requirements for all
OWWM programs. Accordingly the proposed regulations have been
drafted to cover activities under the Resource Conservation and
Recovery Act and the Safe Drinking Water Act, as well as under the
Clean Water Act.
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Several commenters indicated that the concept papers should
not be limited to OWWM programs, but should apply to all EPA activi-
ties. The Agency hereby requests public comment on whether such
an expansion in scope would be desirable.
2. Discretion. The concept papers solicited comment on the
degree of discretion which should be allowed in establishing
public participation requirements. A closely related issue was
the extent to which elements of a public participation program
should be specified in regulation or in guidance. Many, although
not all, governmental agencies commenting upon the regulations
favored wide discretion and extensive use of guidance. A large
volume of citizen comment called for significantly limiting discre-
tion; these comments indicated that permitting broad discretion
often frustrates active participation by leaving potential citizen
participants unaware of their rights and opportunitie? to become
involved. Some individuals provided examples of instances in
which discretion had been exercised in a manner which did not foster
participation in agency programs. While EPA recognizes such prob-
lems, we also recognize that flexibility is needed for effective
environmental management. We have responded to several comments
identifying areas where discretion should be expanded or where
the use of guidance would be more appropriate than regulation. As
a result, the current proposals provide considerable added flexibility,
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especially in the area of advisory group responsibilities,
organization, membership, and relation to grantee agencies.
3. Role of elected and appointed decisionmaking officials.
Many commenters pointed out that the concept papers did not devote
sufficient attention to the role of State and municipal officials.
We concur. Accordingly, the current proposals place strong emphasis
on the legal authority of official decisionmakers and encourage
their inclusion on advisory groups.
4. Advisory Groups. Several Agency programs are already
utilizing advisory groups as a public participation mechanism
where careful scrutiny of a plan or project by an informed group
of citizenry is needed. The advisory group requirements included
in the concept papers were intended to foster the formation of an
informed core group of citizens which would assist elected and
appointed decision-making officials by becoming familiar with
plans and programs funded by Federal grants, making recommenda-
tions to decis'ionmaking officials, and encouraging interchange
and mutual education among interests represented on the group.
Many commenters suggested that the advisory group requirements
were too stringent and would be difficult to apply in some planning
areas. Others indicated that the requirements represent a vital
initiative to ensure formation of truly balanced advisory groups.
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Strong support was expressed for the requirement that a majority
of advisory group members be private citizens and members of
public interest groups and for the provision that would bar any
person with a financial conflict of interest from the advisory
group. These two requirements were also the subject of significant
critical comment. A number of comments cited instances in which
individuals with a financial stake in various grant-supported
activities have made constructive contributions to advisory
group deliberations. The lack of encouragement for placing elected
officials on advisory groups was also criticized by a number of
commenters.
The Agency concurs with much of the comment calling for
changes in advisory group requirements. The proposed regulations
provide considerably more flexibility in the form of encouragement
for membership by State and local public officials, and permitting
advisory group membership by individuals with an economic stake in
the project activities. However, the Agency cannot ignore the
large volume of comment indicating that private citizens and
public interest representatives should make up at least half of the
advisory group. Accordingly, this requirement has been retained
with the qualification that this portion of advisory group member-
ship should reflect a balance of community interests.
The proposed regulations establish two categories of advisory
group membership for purposes of addressing potential conflicts of
interest (See §25.4(d)(4)(iii). The proposed regulations do not
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prohibit membership by economically interested persons as the
concept paper would have. However, such a prohibition does apply
to the private citizen, public interest group membership category.
All advisory group members would be required to disclose any
financial interest which they have in the plan or project.
Some comments stated that the portions of the requirements
addressing advisory group duties and organization, and the respon-
sibilities of the grantee to the advisory group were too detailed.
Other comments pointed out that these features are critical in
determining the effectiveness of an advisory group and should be
of major concern to EPA in its role of providing grants for State
and local assistance. The Agency concurs with both perspectives
reflected above. The concept papers have been revised to include
considerably less detail in these areas; however, the Agency will
provide guidance addressing advisory group structure, duties, and
staff support.
Strong support was expressed for the concept of training
advisory groups to fulfill their role. Accordingly, the training
provision of the concept papers has been retained. However, the
Agency has determined that it is appropriate to address the content
of the training in guidance. Therefore, the portions of the
concept paper which discussed training content are not included in
the proposed regulations.
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5. Paperwork. Comments have indicated that the public
participation work plan, the responsiveness summary, and the
summary of public participation which were defined in the concept
papers might frustrate the EPA (and Federal government) policy of
reducing unnecessary paperwork. Some comments indicated that the
summary of agency response and the summary of public participation
appeared to be duplicative. Many other comments indicated that
the work plan, responsiveness summary, and public participation
summary would be important mechanisms to assure adequate public
participation. Comments indicated that these documents would
assist citizens to participate by enabling them to know what
participation opportunities existed and to learn how agencies have
taken their participation into account in decision-making. Many
citizen comments indicated that, under the present system, feedback
on participation is frequently inadequate. We concur with these
comments. In addition, the Agency.1 s experience suggests that the
responsiveness summary, the public participation work plan, and
the public participation summary are needed if the Agency is to
fulfill its management responsibility to monitor public partici-
pation performance.
We are very concerned, however, with avoiding unnecessary
paperwork and have revised the requirements of the public partici-
pation summary to indicate that it will require no work which
duplicates responsiveness summaries. In addition, EPA is indicating
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here, and will reiterate in program guidance, that the work plan
and, where appropriate, other required material are intended to be
brief documents which merely outline agency plans and action.
They will not be lengthy materials which are a burden to prepare.
6. Advance notice of public hearings and meetings. The
concept papers included a public hearing notice requirement of 45
days. The present requirement is 30 days. Many commenters with
experience in hearing participation have strongly supported this
change. They indicated that under current requirements they often
do not receive notices or hearing materials in time to thoroughly
prepare hearing testimony. This is of particular concern because
the complex issues discussed in hearings in many Agency programs
require more than just a few days for thoughtful preparation.
Government agencies have, for the most part, indicated that they
see no need to change the current notice requirement and would
oppose extending the notice period to 45 days.
The proposed regulations specify a 45-day notice for hearings;
however, the Agency wishes to hear additional public comment on
this issue. We especially invite comment on whether or not 30
days has generally provided adequate time for notices to be mailed
and received, hearing documents to be obtained and reviewed, and
testimony prepared.
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The proposed regulations permit reduction of advance notice
of public meetings from the normally required 45 days to a lesser
period. No limitation on the reduction is specified. The Agency
•solicits comment on whether an absolute minimum of advance notice
for public meetings should be set and, if so, what the minimum
time should be.
7. Reimbursement of participation expenses. The Agency has
received considerable comment, both pro and con, regarding reimburse-
ment of advisory group out-of-pocket expenses such as transportation,
parking, or child care. This is currently a grant eligible expense,
but many agencies have exercised their discretion not to apply for
grant funding to pay such costs. Some agencies opposed reimbursement
on the basis of their opinion that costs do not inhibit participation
in any way. Many citizen commenters indicated their belief that
covering advisory group expenses will encourage more active partici-
pation, especially by low income individuals. Given the general
balance of comment between the two points-of-view described above,
the proposed regulations neither require nor prohibit reimbursement
of advisory group member expenses. Before departing from the
current practice, the Agency wishes to hear further comment on the
issue. Comment on whether the administration of reimbursement
systems need be an excessive burden (assuming proper guidance)
would be particularly helpful.
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Some comment has addressed the issue, raised in the concept
paper, of whether reimbursement or some other form of government
assistance for costs of participation (other than out-of-pocket
costs of advisory group members) would be appropriate. Much of this
comment, especially interest expressed at public meetings, strongly
supports at least a pilot program to provide technical assistance
or expert advice to assist participation.
The Agency is currently conducting an experimental program to
reimburse selected participants in a rulemaking conducted under
the Toxic Substances Control Act-(TSCA). However, rulemaking
activities differ significantly from many of the environmental
control programs administered by the Agency. Considering these
differences, the additional time that would be required for a
thorough evaluation of the TSCA experience, and the EPA's strong
commitment to assist public participation, the Agency does not
believe it to be appropriate to defer action on assistance in non-
rulemaking activities until the TSCA results are evaluated. The
Agency will begin development of a pilot program to explore means
to provide technical or expert assistance to participants in
programs (other than rulemaking activities) under the Clean Water
Act, Resource Conservation and Recovery Act and the Safe Drinking
Water Act.
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DISCUSSION OF COMMENTS RECEIVED ON THE CONCEPT PAPER FOR
PUBLIC PARTICIPATION IN THE MUNICIPAL WASTEWATER TREATMENT
FACILITY CONSTRUCTION GRANT PROGRAM:
Recognizing that wastewater treatment projects vary in complexity
and community impact, the proposed public participation requirements
institute a two-tiered program: an Abbreviated Public Participation
Program, suitable to less complex projects with only moderate or
minimal community impact, and a Full-Seale Program, for projects
of greater complexity and community impact.
It is currently estimated that a maximum of 30 percent of the
Step 1 (facility planning) projects would require a Full-Scale
Public Participation Program in FY 79. Exemptions from the Abbre-
viated Public Participation Program would be available for certain
minor projects upon approval of the Regional Administrator.
Significant issues raised in comments submitted on the con-
struction grant public participation concept paper are as follows:
1. Discretion. Many commenters supported the public partici-
pation requirements outlined in the March concept papers and
suggested additional requirements which should be applied to
assure an adequate level of public participation. Many other
commenters indicated that the concept papers were already too
detailed and suggested that they be revised to provide more discre-
tion to States, localities, and EPA Regions.
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The proposed regulations provide more flexibility and discretion
than did the concept papers. Specific areas where flexibility or
discretion have been provided are as follows:
o The criteria that trigger the Full-Seale Program were
modified to permit the Regional Administrators increased discretion
in making these determinations.
o The criteria for exempting projects were modified to
permit grantees with minor projects to petition the Regional
Administrator for an exemption from the Abbreviated Program require-
ments.
o Advisory groups are required for the Full-Scale Program
to assist the grantee by providing a mechanism for consultation by
an informed core group of citizens. This is considered an essential
element for adequate public involvement in projects with potentially
significant social, economic or environmental consequences.
However, considerable flexibility has been provided in advisory
group requirements (see the discussion of Advisory Groups above).
2. Resources. Implementation of a Full-Seale Program for a
maximum of 30 percent of new Step 1 projects and an Abbreviated
Program for the remaining projects (minus exemptions) would, as
many commenters pointed out, increase the resource demands on EPA,
States, and grantees. The Agency recognizes the resource requirements
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of an adequate public participation effort and is taking action to
meet its own staff requirements, particularly in the Regional
offices. State resources may be augmented by funds available for
State Management Assistance under section 205(g) of the Clean
Water Act of 1977. At the local level, the required public parti-
cipation activities will be eligible for 75 percent Federal funding.
The additional local costs for public participation should be
small in comparison to the total project costs, particularly
construction and operating costs. Currently, the facilities
planning process (Step 1) where the proposed public participation
requirements are concentrated accounts for only 2 to 5 percent of
the total cost of a municipal wastewater treatment project. Small
additional expenditures in the facility planning stage ultimately
can assist a community to achieve significant savings through
development of projects which are less costly to build or operate.
3. Early Public Involvement. Numerous comments from many
interests stressed the importance of informing and involving the
public in the early, formative stages of the facilities planning
process. The Agency agrees that public input should be focused in the
early stages of facilities planning. However, since activities
prior to Step 1 grant award are not grant eligible, the Agency is
reluctant to impose public participation requirements at that
stage. Consequently, the proposed regulations include no pre-Step 1
grant award public participation requirements except public notifi-
cation and consultation in development of the plan of study and a
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brief outline of the public participation program in the plan of study.
The Agency encourages, but does not require, grantees to undertake
other early involvement activities, especially during plan of
study development.
4. Paperwork. See discussion of Paperwork above.
5. Coordination with Water Quality Management Planning.
The water quality management planning program (authorized by
§208 of the Clean Water Act) and the municipal wastewater
treatment construction grants program (authorized by §201
of the Act) are closely related. Many commenters urged that
208 advisory groups be used for 201 planning.
EPA agrees that there must be formal liaison between 201 and
208 planning and public participation activities. It is Agency
policy to encourage such coordination whenever possible; however,
the mechanism for coordination will be left to local discretion.
The Agency believes that the different geographic scope of 208
advisory groups and the already heavy demands upon their time
militate against mandating that 208 advisory groups also provide
detailed advice to 201 planners. This would, however, be acceptable
to the Agency if grantees determine that it is the most effective
approach.
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6. Public Participation in Steps 2 and 3. The concept
papers raised the issue of requiring that a public participation
program continue in Step 2 (design) and Step 3 (construction) of
the construction grant process. Comment was mixed on this matter.
The current proposal provides that the grantee, after consultation
with the public and the advisory group where appropriate, can plan
and conduct public participation activities in Step 2 and Step 3.
The grantee must prepare and have approved a brief work plan for
public participation to make such activities grant eligible. The
proposed regulations also require public notice, information, and
consultation in the adoption of the user charge system and the
industrial cost recovery system which are not usually finalized
until sometime in Step 2 or Step 3.
7. Public participation staffing in Full-Scale Program.
Many commenters indicated that the term "public participation
specialist" which was used in the March concept papers, would
require a community to recruit and hire highly trained professionals
at considerable expense. These individuals might not be familiar
with the community and its interests and problems. Other commenters
suggested that EPA require the public participation staff to be
very familiar with the community. It was suggested that public
participation functions should be carried out by a community organi-
zation or local public interest group under contract to the grantee.
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Academic training v/ilT not be a requirement for the public
participation staff. To indicate the type of staffing which will
satisfy the requirement, the term in the proposed regulations has
been changed from "public participation specialist" to "public
participation coordinator." The Agency is sympathetic with the
concept of meeting public participation staff requirements through
a contract to a community group, but it questions whether this
should be a requirement. Additional public comment on this issue
is invited.
Many commenters indicated that an advisory group must have
its own staff to be effective. The Agency does not have enough
information at this time to require that advisory groups to facility
planning processes be provided with their own staff. However, the
intent of the general advisory group requirements in Part 25 is
that the grantee provide staff support to the advisory group.
8. Delay. Some commenters indicated that the public parti-
cipation requirements would substantially increase the time required
to construct facilities for municipal wastewater treatment. These
contentions were not supported by data demonstrating that public
participation necessarily results in delay. Some projects
begun after promulgation of the new regulations may take
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more time in facility planning due to public participation
activities; however, public participation can also shorten project
time by permitting faster progress through environmental reviews,
avoiding time-consuming controversy, promoting public acceptability
of the approved plan, and thus helping to obtain passage of bond
issues to pay the local share.
NOTE — The Environmental Protection Agency has determined that
this document does not contain a major proposal requiring prepara-
tion of an Economic Impact Analysis Statement under Executive
Orders 11821 and 11949 and OMB Circular A-107.
DATED:
1. 40 CFR is amended by deleting Parts 105 and 249.
2. 40 CFR is amended by adding a new Part 25 reading as follows:
PUBLIC PARTICIPATION IN PROGRAMS UNDER THE RESOURCE CONSERVATION
AND RECOVERY ACT, THE SAFE DRINKING WATER ACT, AND THE CLEAN WATER
ACT
Sec.
25.1 Purpose and scope.
25.2 Policy and objectives.
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25.3 Information and consultation responsitrlities.
25.5 Enforcement.
25.7 Legal proceedings.
25.9 Rulemaking.
25.11 Grant work elements.
25.13 Responsiveness summaries.
25.15 Summary of public participation.
25.17 Assuring compliance with requirements.
25.19 Coordination and non-duplication.
AUTHORITY: Section 101(e) of the Clean Water Act, as amended, 33 U.S.C.
1251(e); section 7004(b) of the Resource Conservation and Recovery
Act, 42 U.S.C. 6974(b); section 1450(a)(l) of the Safe Drinking
Water Act, as amended, 42 U.S.C. 300J-9.
§25.1 Purpose and scope.
(a) This part sets forth requirements for public participation
in activities described in paragraph (b) under the Clean Water
Act, the Resource Conservation and Recovery Act, and the Safe
Drinking Water Act.
(b) The activities covered by this part are:
(1) EPA rulemaking;
(2) EPA administration of permit programs;
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(3) Development by EPA of major informational materials
intended for wiae distribution to the public;
(4) When a Dsouty Assistant Administrator determines it
to be appropriate, development by EPA of strategy
and policy guidance memoranda;
(5) Development and incrementation of plans, programs,
construction, and other activities supported with
EPA grants to State, interstate, regional, and
local agencies (hereinafter referrsd to as "State
and substate agencies"};
(6) Delegation of programs to States and substate agencies,
and administration cf such delegated programs;
(7) Such other activities as the Assistant Administrator
for Water and Waste Management, the Assistant
Administrator for Enforcement, or any EPA Regional
Administrator deems appropriate in view of the
Agency's responsibility to involve the public in
significant decisions.
(c) Activities which are not covered by this part, except as
otherwise provided under (b)(7) or (d) cf tliis section,
are activities under Parts 33, 39, 40, 45 and 46 of this
chapter.
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(d) Some programs covered by regulations in this chapter
contain further provisions concerning public participa-
tion. Therefore, the reader should review both the
provisions in this part and the provisions elsewhere in
this chapter which are applicable to the program of
interest. Regulations governing public information use
and release are set forth in Part 2 of the chapter.
(e) These regulations are applicable to the activities of
all grantees whose grants are awarded after (the effec-
tive date of final regulations), and to all other covered
activities of EPA, State and substate agencies which
occur after that date. These regulations will be appli-
cable to ongoing grants or other activities upon any
significant change in the activity (for example, upon a
significant proposed increase in project scope of a
construction grant). Parts 105 and 249 will no longer
appear in the Code of Federal Regulations; however, they
will remain applicable, in uncodified form, to grants
awarded prior to the effective date of this part and to
all other ongoing activities.
§25.2 Policy and objectives.
(a) It is EPA policy that EPA and all State and substate
agencies participating in activities described in §25.1 will
provide for, encourage, and assist the participation of the public
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to the fullest extent practicable. Those responsible for covered
activities must continuously strive to make public participation
happen. Particular emphasis must be directed toward encouragement
and assistance, including determining why the public does not
participate in an action and overcoming the identified obstacles.
Merely conferring with the public after a final agency decision
does not meet this policy requirement.
(b) The following shall be the objectives of all actions of
EPA and State and substate agencies under this part:
(1) to assure that the public understands official
programs and proposed actions, and that government understands
public concerns;
(2) to assure that no significant government decision
on any activity covered under this part is made without consultation
with interested and affected segments of the public;
(3) to assure that government action is responsive to
the maximum extent feasible to public concerns, and to demonstrate
that public concerns are evaluated and considered;
(4) to promote public support of environmental laws;
(5) to keep the public informed of significant issues
and proposed project or program changes as they arise;
(6) to foster a spirit of openness and mutual trust
among EPA, States, sufestate agencies and the public; and
(7) to continuously strive to make public participation
happen, by using all feasible means to furnish opportunities for
participation and by stimulating and supporting participation.
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§25.3 Information and consultation responsibilities.
(a) General. EPA, State, and substate agencies shall conduct
a continuing program for public information and participation
in the development and implementation of activities covered by this
part. Where functions are delegated to a State by EPA, the State
shall be responsible for meeting the requirements for public par-
ticipation which EPA otherwise would be required to meet.
(b) Information and assistance requirements. Public
information is a necessary prerequisite for meaningful, active
public involvement. Informational activities must be designed to
encourage and facilitate the public'.s participation in all signi-
ficant decisions, particularly where alternative courses of action
are proposed. Each agency shall provide continuing policy, program,
and technical information and assistance at the earliest practi-
cable times and at places easily accessible to interested or
affected persons and organizations. Fact sheets, news releases,
newsletters and other publications may be used for this purpose.
Informational materials must be comprehensive and easily understood.
Special efforts shall be made to clearly and concisely summarize
complex technical materials for public and media uses. Lengthy
documents should be summarized (noting where the full document can
be obtained). Information must be timely. It is essential that
informational materials highlight significant issues that will be
the subject of decision-making. Whenever possible, the social,
economic, and environmental consequences of proposed decisions
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should be clearly stated. Agencies should identify segments of the
public likely to be affected by agency decisions and target specific
informational materials toward them (in addition to the materials
directed toward the general public). Each agency shall provide in
a convenient location or locations, one or more central public
collections or depositories of relevant documents. Examples of
such documents are grant and permit applications, permits, effluent
discharge information, compliance schedule reports, and materials
specified in section 208(b) of the Clean Water Act. Copying
facilities at reasonable cost should be available. Requests for
information directed to the agency shall be promptly handled.
(c) Public notification. Each agency shall develop and
maintain a list of persons and organizations who have expressed an
interest in or may by the nature of their purposes, activities or
members be affected by or have an interest in any covered activi-
ties. Those on the list shall receive timely and periodic distribu-
tion of materials under paragraph (b) of this section. In addition,
the Agency shall provide written notification to those on its
mailing list and media at times when major decisions are being
made and in conjunction with consultation activities under para-
graphs (d)(2), (3) and (4) of this section. Where specific hearing
or other notice requirements exist in law or other regulations in
this chapter, such actions shall be supplemented* to the extent
not duplicative, with informal notice to all interested persons or
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organizations having requested in advance such notice. All advance
notifications under this part must be provided sufficiently in
advance of Agency action to permit time for public response;
generally, this should not be less than 30 days. Media publication
which is obscure (e.g., legal notification pages) shall not be
acceptable as the sole means of public notification.
(d) Public consultation. (1) General. "Public consultation"
means an exchange of views between governmental agencies and
interested or affected persons and organizations in order to meet
the objectives set forth in §25.2. Three common forms of public
consultation, discussed further below, are public hearings,
public meetings, and advisory groups; other less formal consultation
mechanisms include review groups, ad hoc committees, task forces,
workshops, seminars and informal personal communications with
individuals and groups. Public consultation must be preceded by
timely information activities under paragraphs (b) and (c) of this
section, and must occur sufficiently in advance of decision-making
to permit response to public views prior to agency action. EPA,
State and substate agencies shall provide for early and continuing
public consultation in any significant action covered by this
part. In addition to holding hearings and meetings as specifically
required in this chapter, a hearing or meeting shall be held if
there is significant public interest or if EPA», the State or
substate agency determines that a hearing or meeting would be
useful.
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(2) Public Hearings, (i) Applicability. Where non-
adjudicatory public hearings are required in this chapter, the
following minimum requirements apply. These requirements are
subordinate to any more stringent requirements found elsewhere in
this chapter or otherwise imposed by EPA, State or substate agencies.
Procedures developed for adjudicatory hearings required by this
chapter shall be consistent with the public participation objectives
of this part, to the extent practicable.
(ii) Notice. A notice of each hearing shall be well
publicized, and shall also be mailed to the list of interested and
affected persons and organizations under §25.3(c). Except as otherwise
specifically provided elsewhere in this chapter, these actions must
occur at least 45 days prior to the date of the hearing. The notice
shall identify the matters to be discussed at the hearing and shall be
accompanied by a fact sheet supplementing the contents of the notice
with a discussion of the agency's tentative determination on major
issues (if any), a bibliography of relevant materials, and procedures
for obtaining further information. Reports, documents and data relevant
to the discussion at the public hearing shall be available to the
public for a reasonable time prior to the hearing, generally not less
than 30 days.
(iii) Locations and time. Hearings must be held
at times and places which, to the maximum extent feasible, avoid
travel hardships and facilitate attendance by the public. Acces-
sibility of public transportation, and use of evening and weekend
hearings, should be considered. In the case of Statewide programs,
holding more than one hearing should be considered.
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(iv) Scheduling presentations. Witnesses at public
hearings shall be scheduled in advance when necessary to ensure
maximum participation and allotment of adequate time for all
speakers. However, some time must be reserved for unscheduled
testimony. Blocks of time may be considered for major categories
of witnesses.
(v) Conduct of hearing. The agency conducting the
hearing shall inform the audience of the issues involved in the
decision to be made, the considerations the agency will take into
account under law and regulations, the agency's tentative determin-
ations (if any), and the information which is particularly solicited
from the public. The agency should hold a question and answer period
before presentations begin. Procedures shall not unduly inhibit
free expression of views (for example, by onerous written statement
requirements or qualification of witnesses beyond minimum identifi-
cation).
(vi) Record. A transcript or other record of
public hearing proceedings shall be developed and made promptly
available at no more than cost to anyone who requests it.
(3) Public meetings. Public meetings differ from
public hearings only in that they are less formal, formal presentation
scheduling is not required, and a record of proceedings need not
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be maintained. The requirements of §25.3(d)(2)(ii) and (iii) are
applicable to public meetings, except that the notice requirement of 45
days may be reduced, if the notice specifies a reason.
(4) Advisory groups, (i) Applicability. The requirements
of this section on advisory groups shall be met whenever provisions in
Parts 30 or 35 of this chapter require use of an advisory group by
State or substate agencies involved in activities supported by an
EPA grant.
(ii) Role. Primary responsibility for decision-
making in environmental programs is vested by law in the elected
and appointed officials who serve on public bodies and agencies at
various levels of government. Public participation in environ-
mental quality planning must, however, extend to all segments of
the public. Accordingly, where EPA finds that there is a need for
continued attention of an informed core group of citizens, advisory
groups are required in program regulations. Such advisory groups
will not be the sole mechanism for public participation, but will
complement other mechanisms. They are intended to assist the
decision-making officials by making recommendations on important
issues. In addition, advisory groups can encourage a construc-
tive interchange among the various interests present on the group
and enhance the prospect of community acceptance of agency action.
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(11i) Membership. (A) Generally, where the activity
has a particular geographic focus, the advisory group shall be
made up of persons who are residents of that geographic area.
(B) A majority of advisory group members
shall be private citizens and representatives of public interest
groups reflecting a balance of interests in the project area. For
purposes of this requirement, a "public interest group" is an
organization which represents a general civic, social, environ-
mental or public health perspective in the community and which
does not directly reflect the economic interests of its membership
or general economic interests otherwise appropriately represented
under paragraph (d)(4)(iii)(C) of this section. While the private
citizens and representatives of public interest groups must include
interested and affected persons, no person may be included on the
portion of the advisory group addressed by this paragraph who is
likely to incur a substantial financial gain or loss as a result
of any action likely to be taken by the grantee.
(C) The grantee should also provide an oppor-
tunity for representation on the advisory group of public elected
and appointed officials and of organizations representing substan-
tial economic interests of the community (for example, farmers.1
organizations in areas which are agricultural). f Advisory group
members appointed under this paragraph are not subject to the
conflict-of-interest provision set forth in paragraph (d)(4)(iii)(B)
of this section.
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(D) The grantee shall require all prospective
advisory group members to make written disclosure of personal and
organizational economic interests in the activity as a condition
of membership on the advisory group, in accordance with supplemen-
tary EPA guidance.
(iv) Grantee support and responsibilities. The
grantee shall designate a staff contact who will be responsible
for day-to-day coordination between the advisory group, the grantee,
and the grantee's consultant. The grant agreement shall include a
budget item for this staff contact. Where substantial portions
of the grantee's responsibilities will be met under contract, the
grantee shall require a similar designation, and budget specifica-
tion, of its contractor. In the latter event, the grantee need not
designate a separate staff contact on its own staff, if the Regional
Administrator determines that the contractor's designation will
result in an adequate level of coordination. In all cases, the
staff contact shall be located in the project area. The grantee
shall provide the advisory group with information and other appro-
priate support in accordance with EPA guidance.
(v) Advisory group authority and duties. The
advisory group shall be appointed by the grantee in accordance
with the requirements of this section. The advisory group shall
undertake its responsibilities fully and promptly in accordance
with the policies and requirements of this part. Nothing shall
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preclude the right of the advisory group to request EPA to perform
an evaluation of the grantee's compliance with the requirements of
this part. EPA will provide supplementary guidance on advisory
group coordination responsibilities, organization, and procedures.
(vi) Training and assistance. EPA will promptly
provide appropriate written guidance and project information to
the newly formed advisory group and may provide advice and assistance
to the group throughout the life of the project. EPA will develop
and carry out a program to provide a training session for the
advisory committee and appropriate grantee representatives promptly
after its formation. The grantee will provide that any additional needed
training or information is provided to advisory group members as the
need arises.
(vii) Grantee record keeping requirements. The
grantee shall prepare a written statement of its responses to any
formal recommendation of the advisory group, which shall be avail-
able to the public. The grantee shall record the names and addresses
of each member of the advisory group, with the attributes of each
in relation to the requirements of §25.3(d)(4)(iii) and shall
provide a copy to EPA and make the list available to the public.
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§25.5 Enforcement.
Each State and substate agency shall develop internal procedures
for receiving and ensuring proper consideration of information and
evidence submitted by citizens about violations of pollution control
requirements. Public effort in reporting violations shall be encouraged,
and the agency shall make available information on reporting procedures.
Alleged violations shall be promptly investigated by the Agency.
§25.7 Legal proceedings.
EPA and each State and substate agency shall provide full and open
information on legal proceedings to the extent not inconsistent with
court requirements, and where such disclosure would not prejudice the
conduct of the litigation. EPA actions shall be consistent with the
Statement of Policy issued by the Department of Justice with regard to
affording opportunities for public comment before the Department of
Justice consents to a proposed judgement in an action to enjoin discharges
of pollutants into the environment, (see Title 28, Code of Federal
Regulations, Chapter 1, §50.7)
§25.9 Rulemaking.
In addition to providing an opportunity for public hearings on
proposed and interim regulations, EPA shall invite and consider
comments in writing from any interested or affected persons and organiza-
tions. All such comments shall be part of the public record and a copy
of each comment shall be available for public inspection. EPA will
maintain a docket of comments received and Agency responses, if any.
Notices of proposed and interim rulemaking, as well as final
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rules and regulations, shall be distributed in accordance with
§25.3(c) to interested or affected persons promptly after publica-
tion. Each notice shall include information as to the availability
of the full texts of rules and regulations (where these are not
set forth in the notice itself) and places where copying facilities
shall be available at reasonable cost to the public. Under Execu-
tive Order 12044 (March 23, 1978), further EPA guidance will be
issued concerning public participation in EPA rulemaking. A
summary of public participation will be published as part of the
preamble to interim and final regulations.
§25.11 Grant work elements.
(a) This section is applicable to activities under §25.1(b)(4)
except as otherwise provided in Parts 30 or 35.
(b) Each grant applicant shall set forth in the application
a public participation work plan or work element which reflects
how public participation will be provided for, encouraged, and
assisted in accordance with this part. This work plan or element
shall cover the project period. At a minimum, the work plan or
element shall state:
(1) staff and budget resources to be devoted to public
participation by category;
(2) a proposed schedule of public participation
activities according to major points in the program;
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(3) the types of consultation to be used;
(4) informational mechanisms to be used; and
(5) the segments of the public targeted for involvement.
(c) All reasonable costs of public participation incurred by
grantees which are identified in an approved public participation
work plan or element, or which are otherwise approved by EPA,
shall be allowable.
§25.13 Responsiveness Summaries.
At specific decision points specified in program regulations,
agencies are required to prepare a responsiveness summary. This
document is an identification of the public participation activity
conducted; a summary of the public's views, comments, criticisms
and suggestions; and the Agency's specific responses in terms of
modifications to the proposed action or an explanation for rejection
of proposals made by the public. The responsiveness summary shall
accompany the record of the decision. Responsiveness summaries
shall be made available to the public. Responsiveness summaries
shall be used as part of evaluations required under this part or
elsewhere in this chapter.
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§25.15 Summary of public participation.
Each agency which conducts any activities required under this
part shall prepare a Summary of Public Participation where specified
in program regulations. The summary shall describe the matters
brought before the public, the measures taken by the agency to
meet its responsibilities under this part and related provisions
elsewhere in this chapter, the public response, and the agency's
response to significant comments. Responsiveness summaries may be used
to meet appropriate portions of these requirements to avoid duplication.
The summary of public participation shall be forwarded to the appropriate
EPA Assistant Administrator or Regional Administrator as required in
program regulations and shall be made available to the public.
§25.17 Assuring compliance with requirements.
(a) Grant programs. (1) Grant applications. EPA shall review
the public participation work plan (or, if no work plan is required for
the particular grant by this chapter, the public participation element)
included in the grant application to determine consistency with all
policies and requirements of this part. No grant shall be awarded
unless EPA is satisfied that the public participation policies and
requirements of this part and Part 35 will be met.
(2) Compliance, (i) Evaluation. EPA shall evaluate
grantee compliance with public participation requirements using
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the work plan, responsiveness summary, summary of public partici-
pation, and other available information. The adequacy of public
participation effort shall be judged in relation to the requirements
of §25.2 and §25.3. In conducting such evaluation, EPA may request
additional information from the grantee, including records of
hearings and meetings, and may invite public comment on the per-
formance of the grantee. The evaluation will be undertaken as
part of any mid-project review required in various programs under
this chapter; where no such review is required the review shall be
conducted at an approximate mid-point in continuing EPA oversight
activity. EPA may, however, undertake such evaluation at any
point in the project period, and will do so whenever it believes
there may be a failure to meet public participation requirements.
(ii) Remedial actions. Whenever EPA determines
that public participation requirements are not fully met, EPA
shall take actions which it deems appropriate to assure that the
adverse effects of the failure are mitigated and the failure is
not repeated. For ongoing projects, such action shall include,
at a minimum, imposing more stringent requirements on the grantee
for the next budget or other period of the project (including such
actions as more specific output requirements and milestone schedules
for output achievement; interim EPA review of public participation
activities and materials prepared by the grantee; and phased release
of grant funds based on compliance with milestone schedules.)
EPA may terminate or suspend part or all of a grant for non-
compliance with public participation requirements,
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and may take such other further actions it deems appropriate in
accordance with the provisions of Parts 30 and 35 of this chapter
(see, in particular, §§30.340 and 30.615-3, and Subpart H of
Part 30).
(b) Water permit programs. Compliance with public partici-
pation requirements in the permit programs (see Part 124)
administered by approved States shall be monitored by EPA during
the annual review of the State's water program (see §35.570) and
during the review of State permit programs. Failure to comply
with public participation requirements may constitute grounds for
withdrawing the program from a State.
(c) Other covered programs, (reserved)
§25.19 Coordination and non-duplication.
Public participation activities and materials required under this
part may be combined with closely related programs or activities wherever
such combination will enhance the economy, the effectiveness, or the
timeliness of the effort, enhance the clarity of the issue, and not be
detrimental to participation by the widest possible public. Hearings
and meetings may be held jointly by more than one agency on the
same matter, where such procedure does not conflict with the
policy above. Special efforts shall be made to coordinate public
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participation procedures under this part and applicable regulations
elsewhere in this chapter with environmental assessment and analysis
procedures under 40 CFR Part 6. Interstate agencies particularly
are encouraged to develop combined proceedings on behalf of the
States concerned.
3. 40 CFR Part 35 Subpart E is amended by revising S35.903(o)
to read as follows:
S35.903 Summary of construction grant program.
* * * * *
(o) It is the policy of the Environmental Protection Agency to
provide for, encourage, and assist public participation in the
construction grant program. Public participation is required:
(1) in the development of the state project priority system and list
under S35.915;
(2) in the development of facilities plans, in accordance with
S35.917-5;
(3) in the development of user charge systems, in accordance with
S35.925-11, and industrial cost recovery systems, in accordance
with S35.925-12; and
(4) in the delegation of administrative responsibilities for the
construction grant program under S35.1000 et seq.
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4. 40 CFR Part 35 Subpart E is amended by revising S35.917-1(g) to
read as follows:
S35.917-1 Content of Facilities Plans.
*****
(g) A summary of public participation, consistent with S25.15 of this
chapter and S35.917-5(g).
5. 40 CFR Part 35 Subpart E is amended by revising S35.917-5 to
read as follows:
S35.917-5 Public Participation.
(a) General. Public participation in the facilities planning
process shall be provided for, encouraged, and assisted consistent
with §101(e) of the Act and with Part 25 of this chapter. Citizens
shall be provided with information about and shall be given the
opportunity to become involved in:
(1) the assessment of local water quality problems and needs;
(2) the identification and evaluation of appropriate waste
treatment technologies and locations for treatment works;
(3) the evaluation of social, economic^ fiscal, and environmental
impacts; and
(4) the resolution of other significant facilities planning
decisions.
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(b) Abbreviated Public Participation Program. Public participa-
tion in the facilities planning , rocess (except for those projects
exempt under paragraph (c) of this section and those qualifying
for the Full-Scale Program under paragraph (d) of this section)
shall include, but not be limited to, the following:
(1) Public notification and consultation in development of the plan
of study.
(2) An outline in the plan of study of the types of consultation
and information mechanisms to be usad, the segments of the public targeted
for involvement, the mechanisms for coordination with any pertinent 208
public participation programs, projected budget and staff commitments,
and the schedule for public participation as part of the schedule for
completion of specific tasks (see S35.920-3(a)(l)).
(3) Submission to EPA of a brief public participation work plan
(see S25.ll of this chapter) within 45 days after the date of acceptance
of a Step 1 grant award. The work plan shall be widely distributed to
groups and individuals who may be interested in or affected by the
project. A project fact sheet shall accompany the work plan and shall
identify the professional consulting engineer responsible for preparation
of the facilities plan. The work plan shall set forth:
(i) Staff and budget resources committed to public
participation;
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(ii) A schedule of public participation activities according
to major points in the program;
(iii) Types of public consultation mechanisms to be used (see
S25.3(d)) of this chapter);
(iv) Types of informational materials and mechanisms to be
used and methods for distribution;
(v) Segments of the public targeted for involvement; and
(vi) Coordination mechanisms with any pertinent 208 public
participation programs.
(4) Consultation with the public (see S25.3(d) of this chapter)
early in the facilities planning process when the assessment of the
existing and future situations is being made and before the selection of
alternatives for evaluation according to the cost-effectiveness analysis
procedures.
(5) A public meeting when alternatives are largely developed but
before an alternative or plan has been selected.
(6) A public hearing in accordance with S2!r.3(d)(2) of this chapter
prior to the adoption of the facilities plan. This public hearing may
be held in conjunction with the public hearing on the draft Environmental
Impact Statement under S6.914 of this chapter.
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(7) Efforts to keep the public continuously informed of the
progress of the facilities planning process, especially treatment
alternatives, costs, and environmental impacts.
(8) A summary of public participation (in accordance with
SS25.15 and 35.917-5(g) of this chapter).
(c) Exemption from public participation program requirements.
(1) Upon petition by the grant applicant, the Regional Adminis-
trator may exempt from the requirements of paragraphs (b) and (d)
of this section, except for the public hearing required by S35.917-
5(b) and public disclosure of costs, projects in which only minor
plant upgrading or minor sewer rehabilitation is anticipated by
the State Project Priority List. Before granting any exemption,
the Regional Administrator shall issue a public notice of intent
to waive the above requirements and shall allow 30 days for response.
If responses indicate that serious local issues exist, then the
Regional Administrator shall deny the exemption.
(2) During the facilities planning process, if the Regional
Administrator determines that the project no longer meets the
exemption criteria stated above, then the exemption to public
participation program requirements lapses. The grantee, in consul-
tation with the Regional Administrator, shall then undertake
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public participation activities commensurate with the Abbreviated
Public Participation Program but adjusted for constraints imposed
by facilities planning activities already completed.
(3) If a project is segmented, the Regional Administrator
shall look at the project as a whole when considering any petition
for exemption.
(d) Full-Scale Public Participation Program Criteria. (1) A
Full-Scale Public Participation Program under paragraph (e) of this
section is required for all projects for which EPA prepares an
Environmental Impact Statement under Part 6 of this chapter during
facilities planning. In addition, a Full-Scale program under
paragraph (e) is required during facilities planning for any other
project for which the Regional Administrator determines that
enhanced public access to decisionmaking is needed because of the
possibility of particularly acute effects on matters of citizen
concern, as indicated by one or more of the following:
(i) Significant change in land use or impact on environmentally
sensitive areas;
(ii) Significant increase in treatment plant, interceptor
capacity or sewered area;
(iii) Substantial total cost to the community or substantial
cost to users, (i.e. costs not reimbursed under grant);
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(iv) Significant general public controversy;
(v) Significant impact on local population or economic growth;
(vi) Substantial opportunity for use of innovative or alternative
technology.
(2) A Full-Scale Public Participation Program shall be initiated
as soon as the determination in subparagraph (1) of this paragraph is made,
Generally, the determination should be made prior to or with the
award of the Step 1 grant. However, if the Regional Administrator's
determination under subparagraph (1) of this paragraph to require
a full-scale program occurs after initiation of facility planning
because of newly discovered circumstances, the grantee shall
initiate an expanded public participation program at that point.
The Regional Administrator shall determine that the expanded
program is at least as inclusive as a normal Full-Scale Public
Participation Program, except for constraints imposed by facilities
planning activities already completed.
(e) Full-Scale Public Participation Program. The Full-Scale Public
Participation Program shall include the following:
(1) All of the requirements for an Abbreviated Public Participation
Program contained in paragraph (b) of this section, except that a public
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meeting, rather than other public consultation mechanisms, is required
when the assessment of the existing and future situations is being made
and before the alternatives to be studied are selected.
(2) A public participation coordinator designated or hired by the
grantee immediately after the Step 1 grant award.
(3) A public advisory group established by the grantee immediately
after the Step 1 award, in compliance with the advisory group requirements
of S25.3(d)(4) of this chapter.
(4) Consultation with the advisory group and the public:
(i) In the development of the work plan;
(ii) Early in the facilities planning process when the assess-
ment of the existing and future situations is being made and before the
selection of alternatives for evaluation according to the cost-effective-
ness analysis procedures;
(iii) When alternatives are largely developed but before an
alternative or plan has been selected;
(iv) Otherwise as appropriate.
(f) Public notification. Adequate advance notice of public meetings and
public hearings shall be provided the public, consistent with S25.3(d)(2)
of this chapter. Generally, 45 days (but not less than 30 days) notice
shall be provided. Appropriate local and State agencies, State and
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regional clearinghouses, interested environmental groups and appropriate
local public officials should receive written notice of public meetings
and hearings.
(g) Reporting. The grantee shall prepare responsiveness summaries in
accordance with S25.13 of this chapter and this section. For projects
conducted under the Abbreviated Public Participation Program the grantee
shall prepare responsiveness summaries following the public consultation
and the public meetings required by paragraph (b) of this section, and
also as a part of the summary of public participation (see S25.15 of
this chapter) in the completed facilities plan. For projects conducted
under the Full-Scale Public Participation Program the grantee shall
prepare responsiveness summaries following the required public meetings
and as a part of the summary of public participation in the completed
facilities plan. The grantee shall promptly and widely distribute
copies of the responsiveness summaries to interested or affected members
of the public and will submit a copy to EPA separately or in conjunction
with progress reports (see 40 CFR Part 35 §917-3(d)).
(h) Relationship between facility planning (201) and water quality
management planning (208). The grantee must provide for a formal liaison
between the facilities planning advisory group (or the grantee, where
there is no advisory group) and any areawide advisory committee
established under §208 of the Act.
6. 40 CFR Part 35 Subpart E is amended by revising 35.920-3(a)(l) and by
adding a new subparagraph (10) to S35.920-3(b) to read as follows:
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§35.920-3 Contents of application.
(a)
(1) A plan of study presenting (i) the proposed planning area; (ii)
an identification of the entity or entities that will be conducting the
planning; (iii) the nature and scope of the proposed Step 1 project and
public participation program, including a schedule for the completion of
specific tasks; and (iv) an itemized description of the estimated costs
for the project;
(b)
(10) A work plan for public participation for Steps 2 and 3 if the
grant applicant, after consultation with the public and its advisory group
(if one exists), determines it to be necessary;
7. 40 CFR Part 35 Subpart E is amended by revising S35.925-11 to
read as follows:
S35.925-11 User charges.
That, in the case of grant assistance awarded after March 1, 1973, for
a project involving Step 2 or Step 3, an approvable plan and schedule of
••'r" < ene station have been developed, with adequate public information and
consultitier, for a system of user charges to assure that each recipient of
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waste treatment services within the applicant's service area will
pay its proportionate share of the costs of operation and maintenance
(including replacement as defined in S35.905-17 of this chapter) of
all waste treatment service provided by the applicant and the
applicant must agree that such system(s) will be maintained. See
Appendix B to this subpart.
8. 40 CFR Part 35 Subpart E is amended by revising paragraph (a)
of S35.925-12 to read as follows:
S35.925-12 Industrial cost recovery.
(a) That, in the case of any grant awarded after March 1,
1973, for a project involving Step 2 or Step 3, signed letters of
intent have been received by the applicant from each significant
industrial user to pay that portion of the grant amount allocable
to the treatment of its wastes. Each such letter shall also
include a statement of the industrial user's intended period of
use of the treatment works. A significant industrial user is one
that will contribute greater than 10 percent of the design flow or
design pollutant loading of the treatment works. In addition, the
applicant shall inform and consult with the public about the
industrial cost recovery system and must agree to require all
industrial users to pay that portion of the grant amount allocable
to the treatment of wastes from such users.
9. 40 CFR Part 35 Subpart E is amended by revising paragraph (h)
of S35.928-1 of the interim final regulations published in the
FEDERAL REGISTER on April 25, 1978, to read as follows:
53
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S35-928-1 Approval of the industrial cost recovery system.
(h) Adoption of system. The industrial cost recovery system must be
incorporated in one or more municipal legislative enactments or other
appropriate authority. If the project is a regional treatment works accepti
wastewaters from other municipalities, the subscribers receiving waste
treatment service from the grantee shall have adopted industrial cost
recovery systems in accordance with section 204(b)(l)(b) of the Act and
these regulations. Such industrial cost recovery systems shall also be
incorporated in the appropriate municipal legislative enactments or other
appropriate authority of all municipalities contributing waste to the
system. Affected segments of the public shall be consulted prior to
adoption of the industrial cost recovery system.
10. 40 CFR Part 35 Subpart E is amended by revising paragraph (e)
of 535.929-2 of the interim final regulations published in the FEDERAL
REGISTER on April 25, 1978, to read as follows:
§35.929-2 General requirements for all user charge systems.
54
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(e) Adoption of system. The user charge system must be
incorporated in one or more municipal legislative enactments or
other appropriate authority. If the project is a regional treatment
works or part of a regional system accepting wastewaters from
other municipalities, the subscribers receiving waste treatment
services from the grantee shall have adopted user charge systems
in accordance with section 204 (b)(l)(A) of the Clean Water Act
and SS35.929 through 35.929-3. Such user charge systems shall also
be incorporated in the appropriate municipal legislative enactments
or other appropriate authority of all municipalities contributing
waste to the system. Affected segments of the public shall be
informed of the financial impact of the user charge system on them
and shall be consulted prior to adoption of the system.
11. 40 CFR Part 35 Subpart E is amended by adding a new paragraph
(r) to S35.940-1 to read as follows:
S35.940-1 Allowable project costs.
(r) Reasonable costs of public participation incurred by
grantees which are identified in a public participation work plan,
or which are otherwise approved by EPA, shall be allowable.
55
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