oEPA
United SIMM
Environmental Protection
Agency
Off ice of
Solid Waste and
Response
DIRECTIVE NUMBER: 9375.5-01
TITLE: ^ c^ ?art 35 Subpait 0, Cooperative Agreements
and Superfund State Contracts for Super fund
Response Actions
APPROVAL DATE:
EFFECTIVE DATE: 3/10/89
ORIGINATING OFFICE:
D FINAL
OERR/HSCD
D DRAFT
STATUS:
REFERENCE (other documents):
[ 1 A- Pending OMB approval
[ ] B- Pending AA-OSWZR approval
[ ] C- For review &/or comment
f ] D- In development or circulating
headquarters
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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.. environmental Protection
Washington. OC 20460
OSWER Directive Initiation Request
Directive Nume«r
9375.5-01
Name of Contact Person
ohn Banks
2. Originator information
Offici
t)ERR/HSCD
Teiepnore Cooe
382-2443
3. fine
40 CFR Part 35 Subpart 0, Cooperative Agreements and SuperfundState
Contracts for Superfund Response Actions
>. Summary ol Directive (mouae one) statement ol purpose) ~~~"~"~"~~"^~
Provides regulatory language and information on program operating procedures
that have been affected by the subject Interim Final Rule. First of a series
of directives planned to provide guidance to State, Political subdivision and
Federally-reognized Indian Tribe involvement in Superfund Program.
.Keywords Super fund,CEROA, SARA
X
V
No.
Yn What dirtctiv* (number. We)
b. Does It Supplement Previous Directive)!)?
No
Yes What directive (number, tttte)
Draft Level
| A - Signed by AA/OAA
B - Soned by Ofllct Oirtctor
| J C -
Por Bev>e» A Comment
[""""[ o - In
8.
Document
to
b«
distributed
to
States
•
by Headquarters?
X
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No
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oawen uirectivea ayitem rormai atanoafaa..
9. Signature of Lead Office Directives Coordinator
Betti C. VanEpps
10. Name and Title of Approving Official
Hwnry L. Longest II, OERR Director
Date
3/17/89
Bate
3/17/89
EPA Form 1315-17 (Rev. S-e7) Previous editions are oosotete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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sr4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
0/989
9375.5-01
MEMORANDUM:
SUBJECT:
FROM:
TO:
40 CFR Part 35 Subpart 0, Cooperal
Superfund State Contracts for
Henry L. Longest, Director
Office of Emergency and Reme
ve Agreements and
fund Response Actions
:esponse
Director, Waste Management Division
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III, VI
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
PURPOSE
This memorandum transmits 40 CFR Part 35 Subpart 0,
"Cooperative Agreements and Superfund State Contracts for Superfund
Response Actions," and provides information on program operating
procedures that have been affected by the subject Interim Final
Rule.
This is the first in a series of directives to carry the
number 9375.5, which is guidance relating to State, political
subdivision, and Federally-recognized Indian Tribe involvement in
the Superfund program. As an administrative note, I recommend
setting aside a special binder for the directives in this 9375.5
series, which will be issued sequentially as 9375.5-01, 02, etc.
Indexing and keywording will be handled by the Office of Solid
Waste and Emergency Response (OSWER) directives system.
BACKGROUND
The Office of Management and Budget (OMB) recently revised OMB
Circular A-102 and established a government-wide "common rule"
which prescribes the administrative requirements for Federal
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9375.5-01
assistance to States, local governments, and Federally-recognized
Indian Tribes. This rule became effective for grants and
cooperative agreements awarded on or after October 1, 1988, and to
all amendments to existing agreements whose scope of work began on
or after October 1, 1988. EPA implemented this common rule through
40 CFR Part 31, "Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments" (53 FR 8075,
March 11, 1988). Consistent with 40 CFR 31.5, which states that
Part 31 does not supersede those administrative provisions required
by statute, EPA has also promulgated 40 CFR Part 35 Subpart 0,
"Cooperative Agreements and Superfund State Contracts for Super fund
Response Actions" (54 FR 4132, January 27, 1989). EPA's regulation
at 40 CFR 35 Subpart 0 is effective for all CERCLA-funded
cooperative agreements and Superfund State Contracts awarded after
January 27, 1989. This rule also applies to amendments to existing
agreements where the scope of work starts after the effective date
of this rule.
The Grants Administration Division (GAD), in coordination with
the Office of Emergency and Remedial Response (OERR) and other EPA
offices and Regions, has promulgated 40 CFR Part 35 Subpart 0 to
implement Superfund-specific requirements that were contained in
the State Participation in the Superfund Program manual and other
Superfund addenda/guidance.This regulation codifies those
requirements pertaining to cooperative agreements and Superfund
State Contracts, financial administration, property (both real and
personal), procurement and other administrative requirements
covered in guidance.
THE IMPACT OF 40 CFR PART 35 SUBPART 0 ON CURRENT PROGRAM OPERATING
PROCEDURES
For the most part, Subpart 0 does not significantly alter
operating procedures that are currently in place; nonetheless, it
would benefit you to read over the regulation since it does contain
a number of changes that do affect current operating procedures.
Among thes« changes are the following:
(1) Superfund State Contracts
40 CFR Part 35 Subpart 0 codifies requirements for
Superfund State Contracts (SSC), which are required by section
104 of CERCLA, as amended. The SSC is a joint, legally
binding agreement which is required to obtain the necessary
CERCLA section 104 assurances when either EPA or a political
subdivision is the lead agency for CERCLA remedial response.
EPA's regulation at 40 CFR 35.6800 requires that an SSC be in
place to obtain the necessary assurances before a Federal-lead
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9375.5-01
remedial action begins. Regional offices may not obligate
any funds to EPA contractors or other Federal Agencies under
an Interagency Agreement to conduct remedial action during a
Federal-lead response until an SSC has been executed with the
State; these are the same procedures you should have followed
in the past regarding obligations for remedial action. An
important change which you should be aware of regarding SSCs,
however, is that an SSC is still required for a Federal- or
political subdivision-lead remedial action even if the
assurances have previously been provided by the State in a
support agency cooperative agreement (see section 3 below for
a further discussion on support agency cooperative
agreements).
In the case of a political subdivision-lead remedial
response at a site, 40 CFR 35.6800 requires that a three-party
SSC between EPA, the State, and political subdivision thereof,
be in place before the political subdivision may take the lead
for any phase of remedial response. This is to ensure
adequate State involvement in the remedial response pursuant
to section 121(£) of CERCLA, as amended. An SSC entered into
at the time of political subdivision remedial planning
activities need not contain the CERCLA 104 assurances; it must
simply document the responsibilities of the signatories as
specified in 40 CFR 35.6805. However, if the political
subdivision will have the lead for remedial action, the three-
party SSC must be amended to include the appropriate section
104 assurances before funds may be obligated to the political
subdivision under a cooperative agreement. The State must
provide these assurances in the three-party SSC for a
political subdivision-lead remedial action. Even if the
political subdivision is designated as responsible for
carrying out a specific assurance, the State must guarantee
that it will assume responsibility for the assurance in the
event of default by the political subdivision.
Furthermore, 40 CFR 35.6800(a)(1) requires an SSC with a
Federally-recognized Indian Tribe before EPA initiates
remedial action at a site on Indian land. Federally-
recognized Indian Tribes are exempt by law from providing the
CERCLA section 104(c)(3) assurances. However, pursuant to 40
CFR 35.6810(e), the Federally-recognized Indian Tribe must
assure EPA that it will accept title to, acquire interest in,
or accept transfer of such interest in real property that was
acquired with CERCLA funds in order to conduct a response
action. An SSC with the Federally-recognized Indian Tribe is
the appropriate mechanism for obtaining this assurance.
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9375.5-01
In addition to the above requirements, 40 CFR 35.6805
specifies the minimum provisions which an SSC must include.
Further guidance on these provisions will be forthcoming.
(2) Indian Tribes
CERCLA requires EPA to afford to Federally-recognized
Indian Tribes substantially the same treatment as it would to
States. Generally, the term "State" may be taken to include
"Federally-recognized Indian Tribe." However, 40 CFR Part 35
Subpart 0 recognizes certain necessary differences between
these two entities in order to clarify various Superfund
administrative requirements. Therefore, where a requirement
applies to a State, the term "State" is used, and where a
requirement applies to a Federally-recognized Indian Tribe,
the term "Federally-recognized Indian Tribe" is used. Subpart
0 does not use the terms interchangeably.
(3) Support Agency Cooperative Agreements
This may be a new term to many of you. In the past you
have been using the term "management assistance cooperative
agreement" to refer to those cooperative agreements awarded to
States or Federally-recognized Indian Tribes to fund support
activities during a Federal- or political subdivision-lead
remedial response. This terminology has led to misconceptions
about the purpose of these cooperative agreements and the
eligible activities that are fundable under them. In order to
clarify the intent of these cooperative agreements for funding
support activities, these cooperative agreements have been
codified in 40 CFR 35.6900 through 35.6920 as "support agency
cooperative agreements." Support agency activities are those
activities conducted by a State or Federally-recognized Indian
Tribe pursuant to Section 121(f) of CERCLA, as amended, and
described in Subpart F of proposed 40 CFR Part 300, "National
Oil and Hazardous Substances Pollution Contingency Plan" (53
FR 51394, December 21, 1988) to ensure meaningful and
substantial involvement when the State is the support agency
at a P«deral-or political subdivision-lead site or the
Federally-recognized Indian Tribe is the support agency at a
Federal-lead site. Regions should ensure that activities
under a support agency cooperative agreement are consistent
with the provisions of Section 121(f) of CERCLA, as amended,
before awarding them.
The support agency cooperative agreement is not the
appropriate vehicle for documenting CERCLA section 104
assurances prior to remedial action at a site. As specified
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9375.5-01
earlier, the Superfund State Contract is the required
mechanism, pursuant to 40 CFR 35.6800 and 35.6810, for
documenting assurances prior to the initiation of a Federal-
or political subdivision-lead remedial action. These
assurances may not be provided in a separate cooperative
agreement. For example, if a State enters into a support
agency cooperative agreement to conduct support activities
during remedial action, the cost-share assurance and terms of
payment must be documented in an SSC and not the cooperative
agreement. The SSC should in turn, however, reference the
support agency cooperative agreement which is in place
concurrently with the SSC to facilitate tracking of
expenditures and payments.
(4) Quarterly Reports
In the past Regions may not have required the submittal
of quarterly reports by the States, instead relying on
monthly communication between the Region and State to track
State progress in Superfund. 40 CFR 35.6650 reemphasizes the
requirement that recipients of Superfund cooperative
agreements submit progress reports quarterly and specifies the
minimum information these reports must contain. A recipient's
failure to submit quarterly progress reports to EPA
constitutes noncompliance with the terms of the cooperative
agreement and may result in EPA taking action under 40 CFR
31.43.
In addition to the above requirements, 40 CFR 35.6655
requires recipients to inform EPA as soon as possible of any
developments which significantly impact, either adversely or
favorably, the cooperative agreement supported activity.
Recipients should not wait until the quarterly report period
to inform EPA of such events.
(5) Docuaentation and Record Retention Requirements
Record documentation requirements to support cost
recovery actions are contained in 40 CFR 35.6700. These
docunentation requirements were developed pursuant to the
guidelines in the State Superfund Financial Management and
Recordkeeping Guidance, issued in November 1987, by the Office
of the Comptroller. States should ensure that they comply
with the requirements in 40 CFR 35 Subpart 0 and the
guidelines in the State Financial Management and
Recordkeeping Guidance with respect to documentation
production. The record retention requirements contained in
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9375.5-01
the above guidance, however, have been modified by 40 CFR 35
Subpart 0 as follows.
Although 40 CFR Part 31 provides that records generally
be retained for three years, EPA's new regulation, 40 CFR 35
Subpart 0, instead requires that recipients of Superfund
cooperative agreements and signatories to SSCs retain records
for ten years, or until any litigation, claim, negotiation,
audit, cost recovery, or other action involving the records
has been completed and all issues resolved, whichever is
later. Nonetheless, the recipient must obtain written
approval from the Award Official before disposing of any
CERCLA records.
40 CFR PART 35 SUBPART 0 AND FUTURE SUPERFUND GUIDANCE
Subpart 0 and this directive supersede instructions on State
involvement in the Superfund program contained in 1) State
Participation in the Superfund Program, February 1984, and all
addenda issued through December 1986, 2) Interim Final Guidance on
State Participation in Pre-Remedial and Remedial Response, July 21,
1987,on State involvement under SARA,ITAward of Cooperative
Agreements to Political Subdivisions, February 12, 1987, 4~]iTate
Access to EPA Contractors During Remedial Response, April 27, 1988,
and 5) Guidance on State Core Program Funding Cooperative
Agreements,December 18,1987(information provided in this
guidance regarding allowable activities and functions under a core
program cooperative agreement, however, is still valid). The
Procurement Under Superfund Remedial Cooperative Agreement
Guidance, June 1988, supplements Subpart 0 and will be revised to
incorporate 40 CFR 35 Subpart 0 provisions.
Specifically, Regional and State program staff should no
longer rely on the State Participation manual as the program's
primary source of information on State involvement in Superfund
since much of the information in this manual is now out-dated.
However, the manual should still serve as an excellent historical
reference for State participation in the program.
The Grants Administration Division (GAD) has the primary
responsibility for the implementation of the new Superfund
Assistance Regulation, and any questions concerning the
implementation of 40 CFR 35 Subpart 0 should be directed to your
Regional Grants Administration Office. In support to Superfund
program personnel and the States, however, OERR in conjunction with
GAD and other Headquarters offices, is developing a series of
directives that explains in more detail the principal regulatory
requirements of 40 CFR 35 Subpart 0 and other changes in program
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9375.5-01
operating procedures. This is the first such directive; other
directives on specific topics and program changes will be issued in
the near future.
CONTACTS
Should you have any questions regarding the Superfund
Administrative regulation you may contact Richard Johnson, Grants
Administration Division, at FTS: 382-5296, or Sharon Saile, Grants
Administration Division, at FTS: 382-5268. Program-specific
questions may be directed to Jan Baker Wine, Chief, State
Involvement Section, or John Banks of her staff at FTS: 382-2443.
Attachment
cc: Regional Superfund Branch Chiefs
Regions I - X
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Friday
January 27, 1989
Part II
Environmental
Protection Agency
40 CFR Part 35
Cooperative Agreements and Superfund
State Contracts for Superfund Response
Actions; Interim Final Rule With Request
for Comments
HeinOnline - 54 Fed. Reg. 4131 1989
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4132 Federal Register / Vol. 54, No. 17 / Friday, •January 27, 1989 / Rules and'Regulations
ENVIRONMENTAL PROTECTION
AGENCY
Office of Administration
40 CFR Part 35
[FRL-3428-8J
Cooperative Agreements and
Superfund State Contracts for
Superfund Response Actions
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Interim final rule with request
for comments.
SUMMARY: This rule establishes the
administrative requirements for
CERCLA-funded cooperative
agreements, and Superfund State
Contracts. The rule establishes these
requirements for States, political
subdivisions thereof, and Federally-
recognized Indian tribes. This regulation
sets forth the pre-award, post-award,
and after-the-grant requirements which
are conditions for receiving a Superfund
cooperative agreement or Superfund
State Contract. This regulation is needed
to implement CERCLA cost recovery
requirements and ensure that recipients
carefully track and document all costs.
DATES: Effective Date: This rule
becomes effective January 27,1989.
Compliance Date: This rule is
effective for. all CERCLA-funded
cooperative agreements and Superfund
State Contracts awarded after January
27,1989. This rule also applies to
amendments to existing agreements
where the scope of work starts after the
effective date of this rule.
Comments: Written comments must
be submitted on or before April 27,1989.
ADDRESSES: Written comments must be
submitted to: Superfund Docket Clerk,
Office of Emergency and Remedial
Response (WH-548D), Room LG-100,
U.S. Environmental Protection Agency,
401 M Street SW., Washington, DC
20460. Comments on today's Interim
Final Rule must identify the regulatory
docket as follows: "Docket 104CA."
Docket: Copies of materials relevant to
this rulemaking are contained in the
Superfund docket located in the Lower
Garage (Room LG-100) at the U.S.
Environmental Protection Agency, 401 M
Street SW., Washington DC 20460. The
docket is available for inspection by
appointment only between the hours of
9:00 a.m. and 4:00 p.m. Monday through
Friday, excluding Federal holidays. The
docket phone number is (202) 382-3046.
As provided in 40 CFR Part 2, a
reasonable fee may be charged for
copying services.
FOR FURTHER INFORMATION CONTACT:
Richard A. Johnson. Office of
Administration, PM-216F, U.S.
Environmental Protection Agency, 499
South Capitol Street SW., Washington,
DC 20460 at (202) 382-5296.
SUPPLEMENTARY INFORMATION: The
contents of this preamble are as follows:
I. Background;
II. Description of Major Issues;
HI. Supporting Information; and
IV. Impact Analyses.
I. Background
The Comprehensive Environmental
Response, Compensation and Liability
Act (CERCLA) was enacted in 1980 and
launched the nation's first centralized
and substantial commitment to clean up
hazardous waste sites. CERCLA, or
Superfund, provided Federal authority
and resources to respond directly to
releases (or threatened releases] of
hazardous substances that could
endanger human health or the
environment. The law also authorized
enforcement action and cost recovery
from those responsible for a release. The
Superfund Amendments and
Reauthorization Act (SARA) was
enacted on October 17,1986 and
continued the program initiated by
CERCLA by reauthorizing CERCLA for
an additional five years. SARA
strengthened and expanded the cleanup
program and increased the size of the
Hazardous Substance Superfund by $8.5
billion.
One of the vehicles EPA uses to
conduct Superfund cleanup responses is
a cooperative agreement, through which
EPA authorizes recipients to perform the
lead role for cleanup activities.
Superfund cooperative agreements are
unique among EPA cooperative
agreements; the major difference is the
cost recovery requirement. To expedite
the process of recovering costs from
parties responsible for a release, the
Superfund program mandates site-
specific tracking of costs incurred under
cooperative agreements and
maintenance of site-specific files to
document such costs.
The Office of Management and Budget
(OMB) recently revised OMB Circular
A-102 by establishing a government-
wide "common rule" which prescribes
administrative requirements for Federal
assistance awards to States, political
subdivisions thereof, and Federally-
recognized Indian Tribes. EPA is
implementing the common rule through
40 CFR Part 31. However, as provided in
40 CFR 31.5, Part 31 does not supersede
administrative provisions required by
statute.
Consistent with this Part 31 exception,
EPA is promulgating this interim final
rule as 40 CFR Part 35, Subpart O to
implement the cost recovery program
under section 107 of CERCLA, as
amended. Section 107 of CERCLA makes
'any person responsible for a release or
threatened release of hazardous
substances liable for all costs of
removal or remedial action. EPA
implements this statutory provision
through its cost recovery program. To
ensure an effective cost recovery
program, Subpart O establishes specific
uniform requirements which supplement
those in Part 31 for Superfund
cooperative agreements and Superfund
State contracts (SSC's) in three ways.
The first way in which this subpart
supplements Part 31 is that it provides
requirements specific to CERCLA, as
amended, which were not addressed in
Part 31. For example, the regulation
adds requirements for States to follow
for non- State-lead responses. Second,
this subpart includes requirements
which, although addressed in Part 31, do
not meet the minimum standards
necessary to meet the goal of cost
recovery. These minimum requirements
have been included in this subpart in a
modified form. For example, although
Part 31 does address procurement
procedures, recipients must follow the
procurement requirements in § 35.6550
through § 35.6610 of this subpart when
procuring products or services under
Superfund cooperative agreements.
Finally, this subpart references those
existing 40 CFR Part 31 requirements
which are applicable for recipients of
CERCLA funds. For example, recipients
must follow the allowable cost
requirements contained in 40 CFR 31.22,
which are referenced in § 35.6250(a)(2)
of this subpart.
Those sections of Part 31 that Subpart
O references which are applicable for
CERCLA funded cooperative
agreements and/or Superfund State
Contracts are listed below:
31.3 Definitions.
31.6 Additions and exceptions: selected
sections.
31.13 Principal statutory provisions
applicable to EPA assistance awards.
31.ZO Standards for financial management
systems: source documentation and
awarding agency review.
31.21 Payment: Basic standard,
reimbursement, effect of program income.
refunds, audit recoveries on payment,
withholding payments, and cash
depositories.
31.22 Allowable costs.
31.23 Period of availability of funds.
31.24 Matching or cost sharing:
qualifications and exceptions, and
valuation of donated services.
31.25 Program income.
31.26 Non-Federal audit.
HeinOnline - 54 Fed. Reg. 4132 1989
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Federal Register / Vol. 54, No. 17 / Friday, January 27, 1989 / Rules and Regulations 4133
31.30 Changes.
31.31 Real property.
31.34 Copyrights.
31.35 Subawards to debarred and
suspended parties.
31.36 Procurement: Selected sections from
procurement standards, contracting with
MBE's/WBE's and small businesses,
bonding requirements, and payment to
consultants.
31.40 Monitoring by grantees.
31.41 Financial reporting.
31.42 Starting dates for records retention
period and requirements for records
access.'
31.43 Enforcement.
31.44 Termination for convenience.
31.45 Quality assurance.
31.50 Closeout.
31.51 Labor disallowances and adjustments.
31.52 Collection of amounts due.
31.70 Disputes.
The requirements in this subpart do
not apply to Technical Assistance
Grants or CERCLA research and
development grants, including
Superfund Innovative Technology
Evaluation (SITE) Demonstration
cooperative agreements.
II. Description of Major Issues
A. The National Oil and Hazardous
Substances Pollution Contingency Plan
(NCP)
Although CERCLA, as amended, is the
legislative initiative that provides for the
cleanup of hazardous waste, the
National Oil and Hazardous Substances
Pollution'Contingency Plan (NCP)
describes the guidelines and procedures
for implementing CERCLA. The NCP is
currently being revised to include the
statutory requirements established by
SARA. Subpart O references specific
sections of CERCLA, as amended, in
prescribing requirements. Upon final
promulgation of the revised NCP, any
terms defined in both this regulation and
the NCP will be superseded by the
definition found in the NCP.
B. Records Retention
Length of Retention
40 CFR Part 31 establishes a three-
year records retention requirement for
the recipients of assistance agreements
(40 CFR 31.42). In addition, Part 31
specifies that if any litigation, claim,
negotiation, audit or other action
involving the records has been started
before the expiration of the three-year
period, the records must be retained
until completion of the action and
resolution of all issues which arise from
it, or until the end of the regular three-
year period, whichever is later. Subpart
O requires that recipients retain all
records for ten years after the date of
completion of all response actions at the
site, or until any litigation, claim,
negotiation, audit, cost recovery, or
other action involving the records has
been completed and all issues resolved,
whichever is later. This requirement
ensures that response action
information remains available for a
sufficient period to support government
cost recovery cases. The ten-year
requirement supersedes all Superfund
guidance documents which specify a
three-year retention period, including
State Superfund Financial Management
and Recordkeeping Guidance, dated
January 1988. Subpart O also requires
the recipient to obtain written approval
from its EPA award official before
disposing of any CERCLA records.
Method of Retention
Recipients may substitute microform
copies for original supporting
documentation for removal actions and
remedial investigations, feasibility
studies, designs, and any additional
related activities (including financial
and cost accounting records) undertaken
pursuant to CERCLA. The microform
copying must be performed in
accordance with the technical
regulations concerning micrographics of
Federal Government records (36 CFR
1230 et seq.) and EPA records
management procedures (EPA Order
2160). If the recipient decides to use
microform copies, then the recipient
must also perform microform copying of
original documents periodically in the
regular course of business, and may
dispose of these records only upon EPA
approval. Subpart O requires the
recipient to obtain written approval
from EPA before disposing of the
original records which were used to
make the microform copy. Records
retention requirements specified in this
subpart are applicable to mircoform.
C. Purchase of Property
Although Subpart O provides the
recipient with an option for obtaining
equipment with CERCLA funds, it is not
EPA's intent to use the Hazardous
Substance Superfund to finance large
purchases of equipment
indiscriminantly. Therefore, the
recipient must meet stringent
requirements before EPA will allow the
purchase of equipment with CERCLA
funds. EPA encourages the recipient to
use its own funds to purchase
equipment, and charge the cooperative
agreement for its use. Although EPA
must approve this usage rate, the
recipient does not then have to comply
with the other property standards or
disposition requirements of this
regulation, if the recipient buys the
equipment with its own funds.
D. Superfund State Contracts (SSC's)
There are two types of Superfund
State Contracts (SSC's). The first is a
two-party SSC between EPA and the
State which is required pursuant to
CERCLA section 104 to obtain the
State's CERCLA 104 assurances before a
Federal-lead remedial action can begin.
The second type of SSC is a three-party
SSC between EPA, the State, and a
political subdivision thereof, which is
required before a political subdivision
receives a cooperative agreement for
remedial response at a site. In this
instance, a three-party SSC is required
before a political subdivision takes the
lead for any phase of remedial response
to ensure adequate State involvement
during remedial response pursuant to
section 121(f)(l) of CERCLA. Prior to a
political subdivision taking the lead for
remedial action, the three-party SSC
must be amended to include the State's
CERCLA 104 assurances, if not already
provided in the SSC.
E. Non Site-Specific Cost Accounting
The recipient of CERCLA funds is
required to account for costs on a site-
specific basis by phase of activity. The
recipient is not required to track
expenses by site for pre-remedial or
Core Program cooperative agreement
activities. However, for pre-remcdiul
activities (i.e. Preliminary Assessments
and Site Inspections), the recipient is
required to track expenses by a single
Superfund account number designated
specifically for the pre-remedial activity.
In addition, the recipient is required to
track site-specific technical hours spent
for the pre-remedial activity. For Core
Program activities, the recipient is
required to track expenses by a single
Superfund account number designated
specifically for Core Program activities.
F. Credit for NPL sites
This regulation addresses
requirements for obtaining credit in
§ 35.6270(c), which describes the
requirements for expenditures incurred
before a site is listed on the NPL and for
those incurred after a site is listed on
the NPL. Section 104(c)(5)(A) of
CERCLA, as amended, grants credit for
amounts expended by a State for
remedial action at a NPL site pursuant
to a contract or cooperative agreement.
In addition, section 104(c)(5)(B) allows
credit for expenses for remedial action
at a site incurred before the site is listed
on the NPL if the site is subsequently
listed on the NPL, and the expenses are
determined to be creditable.
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C. Federally-recognized Indian Tribes
CERCLA requires EPA to afford to
Federally-recognized Indian Tribes
substantially the same treatment as it
would to States. However, in order to
clarify the Supefund administrative
requirements, the term "State" in this
regulation does not mean "Federally-
recognized Indian Tribe." Where a
requirement applies only to a State, the
term "State" is used, and where a
requirement applies only to a Federally-
recognized Indian Tribe, the term
"Federally-recognized Indian Tribe" is
used.
A Federally-recognized Indian Tribe •
may be the lead or support agency for a
response and, under the terms of the
statute, need not provide the section
104(c](3) assurances with regard to
remedial actions.
H. Financial Status Report
Although the Financial Status Report
form (SF-269) does not request
information by site and activity, the
recipient must continue to provide
financial information by site and
activity in order to support cost
recovery.
/. Support Agency Cooperative
Agreements
Under the Superfund program, States
and Federally-recognized Indian Tribes
may receive funding to perform site-
specific activities to support a Federal-
lead response. Since the State or
Federally-recognized Indian Tribe
performs these activities as the support
agency, the cooperative agreement
which funds this assistance is termed a
support agency cooperative agreement.
This regulation codifies the
requirements for recipients of support
agency cooperative agreements in
§ 35.6900 through 35.6920 of this subpart.
An example of support agency activities
that may be funded under a cooperative
agreement is the review and comment
on technical data and reports relating to
implementation of the remedy.
/. Non-Time-Critical Removals
Because there must be sufficient time
to complete a cooperative agreement
before a State or Federally-recognized
Indian Tribe may take the lead,
generally only non-time-critical removal
actions will be eligible for cooperative
agreements. Non-time-critical removals
are those where, based on the site
evaluation, the lead agency determines
that a removal action is appropriate and
that there is a planning period of more
than six months available before on-site
activities must begin.
K. Twenty-Year Waste Capacity
The regulation includes the assurance
regarding availability of hazardous
waste treatment and disposal facilities
as required by CERCLA section
104(c)(9). EPA Intends to issue guidance
on this assurance in the near future.
III. Supporting Information
List of Subjects in 40 CFR Part 35
Accounting, Administrative practice
and procedures, Financial
administration, Grant programs
(Cooperative agreements and Superfund
State Contracts), Government
procurement requirements, Property
requirements, Reporting and
recordkeeping requirements, Superfund.
IV. Impact Analyses
A. Federalism
As explained in E.O.12612,
Federalism, States possess unique
constitutional authority, resources, and
competence. Under Federalism, States
should be given the maximum
administrative discretion possible with
respect to national programs they
administer. However, due to statutory
cost recovery requirements and the need
to carefully track all costs, Superfund
recipients must comply with
administrative requirements sufficient to
meet the cost recovery provisions of
CERCLA. Therefore, States must follow
the additional requirements in this rule,
which are absolutely crucial for
effective cost recovery from parties
responsible for release. Nonetheless,
States will be able to follow their own
procedures, such as for procurement, if
they certify that their requirements meet
the intent of our regulation.
B. Executive Order 12291
Executive Order No. 12291 requires
that regulations be classified as "major"
or "non-major" for purposes of review
by the Office of Management and
Budget (OMB). According to Executive
Order No. 12291, "major" rules are
regulations that are likely to result in:
(1) An annual adverse (cost) effect on
the economy of $100 million or more; or
(2) A major increase in costs or prices
for consumers, individual industries,
Federal, State, or local government, or
geographical regions; or
(3) Significant adverse effects on the
competition, employment, investment,
productivity, innovation, or the ability of
United States-based enterprises to
compete with foreign-based enterprises
in domestic or export markets.
This rule does not affect the amount
of funds provided in the Superfund
program, but rather modifies and
updates administrative and procedural
requirements. We do not believe that
the rule will have an annual economic
impact of $100 million or more, will
increase costs or prices, or will
adversely affect competition,
employment, investment, productivity,
innovation, or the ability of United
States-based enterprises to compete
with foreign-based enterprises in
domestic or export markets. For this
reason, we have determined that this is
not a major rule within the meaning of
the Order, and therefore no formal
Regulatory Impact Analysis is
necessary. This interim final rule was
submitted to the Office of Management
and Budget for its review as required by
Executive Order No. 12291.
C. Regulatory Flexibility Act of 1980
The Regulatory Flexibility Act (5
U.S.C. 605(b)) requires that, for each rule
with "significant economic impact on a
substantial number of small entities," an
analysis be prepared describing the
rule's impact on small entities and
identifying any significant alternatives
to the rule that would minimize the
economic impact on small entities. We
certify that this rule will not have a
significant economic impact on a
substantial number of small entities
because the requirements in this
regulation apply only to States, political
subdivisions thereof, and Indian Tribes
for administering Superfund response
actions.
D. Paperwork Reduction Act
Sections 35.6055 (a) (1) through (a) (3)
and (b) (1) through (b) (2); 35.6105 (a) (1)
through (a) (5) and (b); 35.6250 (a) (1)
and (b); 35.6300 (a) (3); 35.6315 (c);
35.6320 (a); 35.6340(a) (3); 35.6550 (b) (1)
through (b) (3); 35.6585 (a) and (b);
35.6650; 35.6655; 35.6660; 35.6665; 35.6670;
35.6700; 35.6705; 35.6710; 35.6805; 35.6810;
35.6815 (d); 35.6860; and 35.6865 of this
rule contain collection-of-information
requirements. The information collection
requirements in this interim final rule
have been approved by the Office of
Management and Budget (OMB) under
the "Paperwork Reduction Act," 44
U.S.C. 3501 et seq. And assigned OMB
control numbers 2010-0020. An
Information Collection Request
document has been prepared by EPA
(ICR No. 1487) and a copy may be
obtained from David Ogden, Information
Policy Branch; EPA: 401 M St., SW. (PM-
223); Washington, DC 20460 or by calling
(202) 475-9498.
Public reporting burden for this
collection of information is estimated to
average 81 hours per response, including
time for reviewing instructions,
searching existing data sources,
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gathering and maintaining the data
needed, and completing and reviewing
the collection of information.
Send comments regarding the burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing this burden to
Chief, Information Policy Branch, EPA,
PM-223.401M St., SW.. Washington,
DC 20460 and to the Office of
Information and Regulatory Affairs,
Office of Management and Budget,
Washington, DC 20503, marked
"Attention: Desk Officer for EPA." The
final rule will respond to any OMB or
public comments on the information
collection requirements contained in this
interim final rule.
Dated: January 9.1989.
Lee M. Thomas,
Administrator.
Accordingly, the Administrator
amends Chapter I, Part 35 of Title 40 of
the Code of Federal Regulations as
follows:
PART 35-STATE AND LOCAL
ASSISTANCE
1. The authority citation for Part 35,
appearing at the end of the table of
contents, is removed.
2. A new Subpart O is added to read
as follows:
Subpart 0—Cooperative Agreements and
Supertund State Contracts for Supertund
Response Actions
General
35.6000 Authority.
35.6005 Purpose and scope.
35.6010 Eligibility.
35.6015 Definitions.
35.6020 Principal statutory provisions.
35.6025 Deviation from this subpart.
Pre-Remedial Response Cooperative
Agreements.
35.6050 Eligibility for pre-remedial
cooperative agreements.
35.0055 State-lead pre-remedial cooperative
agreements.
35.6060 Federally recognized Indian Tribe-
lead preremedial cooperative agreements.
Remedial Response Cooperative Agreements
35.6100 Eligibility for remedial cooperative
agreements.
35.6105 State-lead remedial cooperative
agreements.
35.6110 Federally recognized Indian Tribe-
lead remedial cooperative agreements.
35.6115 Political subdivision-lead remedial
cooperative agreements.
35.6120 Twenty-year waste capacity.
Enforcement Cooperative Agreements
35.6150 Eligibility for enforcement
cooperative agreements.
35.6155 State-lead enforcement cooperative
agreements.
Removal Response Cooperative Agreements
35.6200 Eligibility for removal cooperative
agreements.
35.6205 Removal cooperative agreements.
Financial Administration Requirements
Under a Cooperative Agreement
35.6250 Standards for financial management
systems.
35.6255 Period for availability of funds.
35.6260 Cost sharing.
35.6265 Payments.
35.6270 Recipient payment of response
costs.
35.6275 Program income.
Personal Property Requirements Under a
Cooperative Agreement
35.6300 General personal property
acquisition and use requirements.
35.6305 Obtaining supplies.
35.6310 Obtaining equipment.
35.6315 Alternative methods for obtaining
property.
35.6320 Usage rate.
35.6325 Title and EPA interest in CERCLA-
funded property.
35.6330 Ti.le to Federally-owned property.
35.6335 Property management standards.
35.6340 Disposal of CERCLA-funded
property.
35.6345 Equipment disposal options.
35.6350 Disposal of Federally owned
property.
Real Property Requirements Under a
Cooperative Agreement
35.6400 Acquisition and transfer of interest.
35.6405 Use.
Copyright Requirements Under a Cooperative
Agreement
35.6450 General requirements.
Use of Recipient Employees ("Force
Account") Under a Cooperative Agreement
35.8500 General requirements.
Procurement Requirements Under a
Cooperative Agreement
35.6550 Procurement system standards.
35.6555 Competition.
35.6560 Master list of debarred, suspended,
and voluntarily excluded persons.
35.6565 Procurement methods.
35.6570 Use of the same engineer during
subsequent phases of the project.
35.6575 Restrictions on types of contracts.
35.6560 Contracting with minority and
women's business enterprises (MBE/WBE),
small businesses, and labor surplus area
firms.
35.6585 Cost and price analysis.
35.6590 Bonding and insurance.
35.6595 Contract provisions.
35.6600 Contractor claims.
35.6605 Privity of contrast.
35.6610 Contracts awarded by a contractor.
Reports Required Under a Cooperative
Agreement
35.6650 Quarterly progress reports.
35.6655 Notification of significant
developments.
35.6660 Property inventory reports.
35.6665 Procurement reports.
35.6670 Financial reports.
Records Requirements Under a Cooperative
Agreement
35.6700 Project records.
35.6705 Records retention.
35.6710 Records access.
Other Administrative Requirements for
Cooperative Agreements
35.6750 Modifications.
35.6755 Monitoring program performance.
35.6760 Enforcement and termination for
convenience.
35.6765 Non-Federal audit.
35.6770 Disputes.
35.6775 Exclusion of third-party benefits.
35.6780 Closeout.
35.6785 Collection of amounts due.
35.6790 High risk recipients. .
Requirements for Administering a Superfund
State Contract (SSC)
35.6800 General.
35.6805 Contents of an SSC.
35.6810 Assurances.
35.6815 Administrative requirements.
35.6820 Conclusion of the SSC.
Requirements for Core Program Cooperative
Agreements
35.6850 Eligibility for Core Program
Cooperative Agreements.
35.6855 General.
35.6860 Application requirements.
35.6865 Quarterly progress reports.
35.6870 Cost sharing.
35.6875 Payment to recipient.
Requirements for Support Agency Activities
Under Cooperative Agreements
35.6900 Eligibility for support agency
cooperative agreements.
35.6905 Allowable activities.
35.6910 Support agency cooperative
agreement requirements.
35.6915 Cost sharing.
35.6920 Quarterly progress reports.
Subpart 0—Cooperative Agreements
and Superfund State Contracts tor
Superfund Response Actions
Authority: 42 U.S.C. 9601 et scq.
General
§35.6000 Authority.
This regulation is issued under section
104 CERCLA, 42 U.S.C. 9601 et seq.
§ 35.6005 Purpose and scope.
(a) This regulation codifies recipient
requirements for administering
CEJRCLA-funded cooperative
agreements. This regulation also codifies
requirements for administering
Superfund State Contracts (SSC's) for
non-State-lead remedial responses.
(b) The requirements in this regulation
do not apply to Technical Assistance
Grants (TAG's) or to CERCLA research
and development grants, including the
Superfund Innovative Technology
Evaluation (SITE) Demonstration
Program.
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(c) 40 CFR Part 31. "Uniform
Administrative Requirements for Grants
and Cooperative Agreements to State
and Local Governments," establishes
consistency and uniformity among
Federal agencies in the administration
of grants and cooperative agreements to
State, local, and Federally recognized
Indian tribal governments. For CERCLA-
funded cooperative agreements, this
subpart supplements the requirements
contained in Part 31 for States, political
subdivisions thereof, and Federally
recognized Indian Tribes. This
regulation references those sections of
Part 31 that are applicable to CERCLA-
funded cooperative agreements.
§35.6010 Eligibility.
This regulation applies to States.
political subdivisions thereof, and
Federally recognized Indian Tribes.
Although section 126 of CERCLA
provides that the governing body of a
Federally recognized Indian Tribe shall
be afforded substantially the same
treatment as a State, in this subpart
Federally recognized Indian Tribes are
not included in the definition of State in
order to clarify those requirements with
which Federally recognized Indian
Tribes must comply and those with
which they need not comply.
§35.6015 Definitions.
(a) As used in this subpart, the
following words and terms shall have
the meanings set forth below:
(1) Activity. A set of tasks that
together comprise a segment of the
sequence of events undertaken in
determining, planning, and conducting a
response to a release or potential
release of a hazardous substance. These
include: pre-remedial (i.e. Preliminary
Assessments and Site Inspections],
remedial investigation/feasibility
studies, remedial design, remedial
action, removal, enforcement, and Core
Program activities.
(2) Allowable costs. Those project
costs that are: eligible, reasonable,
necessary, and allocable to the project;
permitted by the appropriate Federal
cost principles; and approved by EPA in
the cooperative agreement and/or
Superfund State Contract.
(3) Architectural or engineering (A/E)
services. Consultation, Investigations,
reports, or services for design-type
projects within the scope of the practice
of architecture or professional
engineering as defined by the laws of
the State or territory in which the
recipient is located.
(4) Award official. The EPA official
with the authority to execute
cooperative agreements and Superfund
State Contracts (SSC's) and take other
actions authorized by EPA Orders.
(5) Budget period. The length of time
EPA specifies in an cooperative
agreement during which the recipient
may expend or obligate Federal funds.
(6) CERCLA. The Comprehensive
Environmental Response,
Compensation, and Liability Act of 1980
as amended by the Superfund
Amendments and Reauthorization Act
of 1986.
(7) Change order. A written order
issued by a recipient, or its designated
agent, to its contractor authorizing an
addition to, deletion from , or revision
of, a contract, usually initiated at the
contractor's request.
(8) Claim. A demand or written
assertion by a contractor seeking, as a
matter of right, changes in contract
duration, costs, or other provisions,
which originally have been rejected by
the recipient.
(9) Closeout. The final EPA or
recipient actions taken to assure
satisfactory completion of project work
and to fulfill administrative
requirements, including financial
settlement, submission of acceptable
required final reports, and resolution of
any outstanding issues under the
cooperative agreement and/or
Superfund State Contract.
(10) Community Relations Plan (CRP).
A management and planning tool
outlining the specific community
relations activities to be undertaken
during the course of a response. It is
designed to provide for two-way
communication between the affected
community and the agencies responsible
for conducting a response action, and to
assure public input into the decision-
making process related to the affected
communities.
(11) Construction. Erection, building,
alteration, repair, remodeling,
improvement, or extension of buildings,
structures or other property.
(12) Contract. A written agreement
between an EPA recipient and another
party (other than another public agency)
or between the recipient's contractor
and the contractor's first tier
subcontractor.
(13) Contractor. Any party to whom a
recipient awards a contract.
(14) Cooperative agreement. A legal
instrument EPA uses to transfer money,
property, services, or anything of value
to a recipient to accomplish a public
purpose in which substantial EPA
involvement is anticipated during the
performance of the project.
(15) Core Program Cooperative
Agreement. A cooperative agreement
that provides funds to a State or
Federally-recognized Indian Tribe to
conduct CERCLA implementation
activities that are not assignable to
specific sites, but are intended to
develop and maintain a State's ability to
participate in the CERCLA response
program.
(16) Cost analysis. The review and
evaluation of each element of contract
cost to determine reasonableness,
allocability, and allowability.
(17) Cost share. The portion of
allowable project costs that a recipient
contributes toward completing its
project (i.e.,. non-Federal share,
matching share).
(18) Equipment, tangible,
nonexpendable, personal property
having a useful life of more than one
year and an acquisition cost of $5,000 or
more per unit.
(19) Excess property. Any property
under the control of a Federal agency
that is not required for immediate or
foreseeable needs and thus is a
candidate for disposal.
(20) Fair market value. The amount at
which property would change hands
between a willing buyer and a willing
seller, neither being under any
compulsion to buy or sell and both
having reasonable knowledge of the
relevant facts. Fair market value is the
price in cash, or its equivalent, for which
the property would have been sold on
the open market.
(21) Health and safety plan. A plan
that specifies the procedures that are
sufficient to protect on-site personnel
and surrounding communities from the
physical, chemical, and/or biological
hazards of the site. The health and
safety plan outlines: (i) Site hazards; (ii)
work areas and site control procedures;
(iii) air surveillance procedures; (iv)
levels of protection; (v) decontamination
and site emergency plans: (vi)
arrangements for weather-related
problems; and (vii) responsibilities for
implementing the health and safety plan.
(22) In-kind contribution. The value of
a non-cash contribution (generally from
third parties) to meet a recipient's cost
sharing requirements in a cooperative
agreement only. An in-kind contribution
may consist of charges for real property
and equipment or the value of goods and
services directly benefiting the
CERCLA-funded project.
(23) Indian Tribe. As defined by
section 101(36) of CERCLA, any Indian
Tribe, band, nation, or other organized
group or community, including any
Alaska Native Village but not including
any Alaska Native regional or village
corporation, which is recognized as
eligible for the special programs and
services provided by the United Stales
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to Indians because of their status as
Indians.
(24) Lead agency. The Federal agency,
State agency, political subdivision, or
Federally recognized Indian Tribe that
has primary responsibility for planning
and implementing a response action
under CERCLA.
(25) Minority Business Enterprise
(MBE). A business which is: (i) Certified
as socially and economically
disadvantaged by the Small Business
Administration, (ii) certified as a
minority business enterprise by a State
or Federal agency, or (iii) an
independent business concern which is
at least 51 percent owned and controlled
by minority group member(s). A
minority group member is an individual
who is a citizen of the United States and
one of the following:
(A) Black American;
(B) Hispanic American (with origins
from Puerto Rico, Mexico, Cuba, South
or Central America);
(C) Native American (American
Indian, Eskimo, Aleut, native Hawaiian),
or
(D) Asian-Pacific American (with
origins from Japan, China, the
Philippines, Vietnam, Korea, Samoa,
Guam, the U.S. Trust Territories of the
Pacific, Northern Marianas, Laos,
Cambodia, Taiwan or the Indian
subcontinent).
(26) National Priorities List (NPLJ.
EPA's list of the most serious
uncontrolled or abandoned hazardous
waste sites identified for possible long-
term remedial action under Superfund.
A site must be on NPL to receive money
from the Trust Fund for remedial action.
The list is based primarily on the score a
site receives from the Hazard Ranking
System.
(27) Operation and maintenance
(O&MJ. Activities required to maintain
the effectiveness of response actions.
O&M is the sole responsibility of the
State.
(28) Personal property. Property other
than real property. It includes both
supplies and equipment.
(29) Political subdivision. The unit of
government that the State determines to
have met the State's legislative
definition of a political subdivision.
(30) Potentially Responsible Party
(PRP). Any individual(s), or
company(ies) identified as potentially
liable under CERCLA for cleanup or
payment for costs of cleanup of
Hazardous Substance sites. PRPs may
include individual(s) or company(ies)
identified as having owned, operated, or
in some other matter contributed wastes
to Hazardous Substance sites.
(31) Price analysis. The process of
evaluating a prospective price without
regard to the contractor's separate cost
elements and proposed profit. Price
analysis determines the reasonableness
of the proposed contract price based on
adequate price competition, previous
experience with similar work,
established catalog or market price, law,
or regulation.
(32) Profit. The net proceeds obtained
by deducting all allowable costs (direct
and indirect) from the price. (Because
this definition of profit is based on
applicable Federal cost principles, it
may vary from many firms' definition of
profit, and may correspond to those
firms' definition of "fee.")
(33) Project. The activities or tasks
EPA identifies in the cooperative
agreement and/or Superfund State
Contract.
(34) Project officer. The EPA official
designated in the cooperative agreement
as EPA's program contact with the
recipient. Project officers are
responsible for monitoring the project.
(35) Project period. The length of time
EPA specifies in the cooperative
agreement and/or Superfund State
Contract for completion of all project
work. It may be composed of more than
one budget period.
(36) Quality Assurance Project Plan.
A written document, associated with
• site sampling activities, which presents
in specific terms the organization (where
applicable), objectives, functional
activities, and specific quality-assurance
and quality control activities designed
to achieve the data quality objectives of
a specific project(s) or continuing
operation(s). The quality assurance
project plan will be prepared by the
responsible program office, regional
office, laboratory, contractor, recipient
of a cooperative agreement, or other
organization. For an enforcement action,
EPA must approve a Potentially
Responsible Party's quality assurance
project plan.
(37) Real property. Land, including
land improvements, structures, and
appurtenances thereto, excluding
movable machinery and equipment.
(38) Recipient. Any State, political
subdivision thereof, or Federally
recognized Indian Tribe which has been
awarded and has accepted an EPA
cooperative agreement.
(39) Services. A recipient's in-kind or
a contractor's labor, time, or efforts
which do not involve the delivery of a
specific end item, other than documents
(e.g., reports, design drawing,
specifications). This term does not
include employment agreements or
collective bargaining agreements. This
term includes dismantling and
demolition of buildings, ground
improvements, and other real property
structures, and the removal of such
structures or portions of them, unless
further work which will result in
construction, alteration, or repair is
contemplated at that location.
(40) Small business. A business as
defined in section 3 of the Small
Business Act, as amended (15 U.S.C.
632).
(41) State. The several States of the
United States, the District of Columbia,
the Commonwealth of Puerto Rico,
Guam, American Samoa, the Virgin
Islands, the Commonwealth of Northern
Marianas, and any territory or
possession over which the United States
has jurisdiction.
(42) Statement of Work (SOW). The
portion of the cooperative agreement
application and/or Superfund State
Contract that describes the purpose and
scope of activities and tasks to be
carried out as a part of the proposed
project.
(43) Subcontractor. Any first tier parly
that has a contract with the recipient's
prime contractor.
(44) Superfund State Contract (SSC).
A joint, legally binding agreement
between EPA and another party to
obtain the necessary assurances before
a Federal-lead remedial action can
begin at a site. In the case of a political
subdivision-lead remedial response, a
three-party SSC between EPA, the State,
and political subdivision thereof, is
required before a political subdivision-
takes the lead for any phase of remedial
response to ensure State involvement
pursuant to section 121(f)(l) of CERCLA,
as amended. The SSC must be amended
to provide the State's CERCLA 104
assurances before a political subdivision
can take the lead for remedial action.
(45) Supplies. All tangible personal
property other than equipment as
defined in this subpart.
(46) Support agency. The State
Agency or Federally recognized Indian
Tribe that furnishes necessary data to
the lead agency, reviews response data
and documents, and provides other
assistance as required by the lead
agency during a response.
(47) Task. An element of a Superfund
response activity.
(48) Title. The valid claim to property
which denotes ownership and the rights
of ownership, including the rights of
possession, control, and disposal of
property.
(49) Unit acquisition cost. The net
invoice unit price of the property
including the cost of modifications,
attachments, accessories, or auxiliary
apparatus necessary to make the
property usable for the purpose for
which it was acquired. Other charges,
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such as the cost of installation,
transportation, taxes, duty, or protective
in-transit insurance, shall be included or
excluded from the unit acquisition cost
in accordance with the recipient's
regular accounting practices.
(50) Value engineering. A systematic
and creative analysis of each contract
term or task to ensure that its essential
function is provided at the overall
lowest cost.
(51) Women's Business Enterprise
(WBE). A business which is certified as
a Women's Business Enterprise by a
State or Federal agency, or which meets
the following definition. A women's
business enterprise is an independent
business concern which is at least 51
percent owned by a woman or women
who also control and operate it.
Determination of whether a business is
at least 51 percent owned by a woman
or women shall be made without regard
to community property laws.
(b) Those words not defined in this
section shall have the meanings set forth
in 40 CFR 31.3.
§ 35.6020 Principal statutory provisions.
The recipient must comply with the
Federal laws described in 40 CFR 31.13,
and with other applicable statutory
provisions.
§ 35.6025 Deviation from this subpart
On a case-by-case basis, EPA will
consider requests for exceptions to the
non-statutory provisions of this
regulation. Refer to the requirements
regarding additions and exceptions
described in 40 CFR 31.6 (b). (c), and (d).
Pro-Remedial Response Cooperative
Agreements
§ 35.6050 Eligibility lor pro-remedial
cooperative agreements.
States and Federally recognized
Indian Tribes may apply for pre-
remedial response cooperative
agreements.
§ 35.6055 State-lead pro-remedial
cooperative agreements.
(a) Pre-remedial application
requirements. To receive a pre-remedial
cooperative agreement, the applicant
must submit the following items to EPA:
(l) Application form. An "Application
for Federal Assistance" (SF-424) for
non-construction programs. Applications
for additional funding need include only
the revised pages. The application must
include the following:
(i) Budget sheets (SF-424(c));
(ii) A Statement of Work (SOW)
which must include a detailed
description, by task, of activities to be
conducted, the projected costs
associated with each task, the number
of products to be completed, and a
quarterly schedule indicating when
these products will be submitted to EPA;
and
(iii) Proposed project and budget
periods.
(2) Evidence of compliance with
intergovernmental review requirements.
The applicant must comply with 40 CFR
Part 29, "Intergovernmental Review of
the EPA Programs and Activities" and
the "Notice of Supplemental Procedures
for Establishing Start Dates of Comment
Period for Activities Subject to
Executive Order 12372" (48 FR 54692).
(3) A list of sites at which the
applicant proposes to undertake pre-
remedial tasks. If the recipient proposes
to revise the list, the recipient may not
incur costs on a new site until the
project officer has approved the site.
(b) Pre-remedial cooperative
agreement requirements. The recipient
must comply with all special conditions
in the cooperative agreement, and with
the following requirements:
(1) Health and safety plan, (i) Before
beginning field work, the recipient must
have a site-specific health and safety
plan in place providing for the
protection of on-site personnel and area
residents. This plan need not be
submitted to EPA, but must be made
available to EPA upon request.
(ii) The recipient's health and safety
plan must comply with Occupational
Safety and Health Administration
(OSHA) 29 CFR 1910.120, entitled
"Hazardous Waste Operations and
Emergency Response," unless the
recipient is a Federally recognized
Indian Tribe which is exempt from
OSHA requirements.
(2) Quality assurance, (i) The
recipient must comply with the quality
assurance requirements described in 40
CFR 31.45.
(ii) The recipient must have an EPA-
approved non-site-specific quality
assurance plan in place before
beginning field work. The recipient must
submit the plan to EPA in adequate time
(generally 45 days) in order for approval
to be granted before beginning field
work.
(iii) The quality assurance plan must
comply with the requirements regarding
split sampling described in section
104(e)(4)(B) of CERCLA. as amended.
§ 35.6060 Federally recognized Indian
Tribe-lead pre-remedial cooperative
agreements.
The Federally recognized Indian Tribe
must comply with all of the
requirements described in § 35.6055 of
this subpart except for the
intergovernmental review requirements
described in § 35.6055(a)(2).
Remedial Response Cooperative
Agreements
§ 35.6100 Eligibility (or remedial
cooperative agreements.
States, Federally recognized Indian
Tribes, and political subdivisions may
apply for remedial response cooperative
agreements.
§ 35.6105 State-lead remedial cooperative
agreements.
(a) Remedial application
requirements. To receive a remedial
cooperative agreement, the applicant
must submit the following items to EPA:
(1) Application form, as described in
§ 35.6055(a)(l) of this subpart,
accompanied by the following:
(i) Budget sheets displaying costs by
site and activity;
(ii) A site-specific Statement of Work
(SOW), including estimated costs per
task; and
(iii) Proposed project and budget
periods.
(2) Evidence of compliance with
intergovernmental review requirements,
as described in § 35.6055(a)(2) of this
subpart.
(3) A site-specific Community
Relations Plan or an assurance that field
work will not begin until one is in place.
The Regional community relations
coordinator must approve the
Community Relations Plan before the
recipient begins field work. The
recipient must comply with the
community relations requirements
described in EPA policy and guidance,
and in the National Contingency Plan
(NCP).
(4) A site-specific health and safety
plan, or an assurance that the applicant
will have an EPA-accepted final plan
before starting field work. Unless
specifically waived by the award
official, the applicant must have a site-
specific health and safety plan in place
providing for the protection of on-site
personnel and area residents. The site-
specific health and safety plan must
comply with Occupational Safety and
Health Administration (OSHA) 29 CFR
1910.120. entitled "Hazardous Waste
Operations and Emergency Response,"
unless the recipient is a Federally
recognized Indian Tribe exempt from
OSHA requirements.
(5) Quality assurance—(i) General. If
the project involves environmentally
related measurements or data
generation, the recipient must comply
with the requirements regarding quality
assurance described in 40 CFR 31.45.
(ii) Quality assurance plan. The
applicant must have a separate quality
assurance project plan/sampling plan
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for each site to be covered by the
cooperative agreement. The applicant
must submit the quality assurance
project plan and sampling plan, which
incorporates results of any site
investigation performed at that site, to
EPA with its cooperative agreement
application. However, at the option of
the EPA award official with program
concurrence, the applicant may submit
with its application a schedule for
developing .the detailed site-specific
quality assurance plan. The recipient
must submit the detailed site-specific
plan to EPA in adequate time (generally
45 days) in order for approval to be
granted before beginning field work. The
recipient may not begin field work until
the EPA approves the quality assurance
plan.
(iii) Split sampling. The quality
assurance plan must comply with the
requirements regarding split sampling
described in section 104(e)(4](B) of
CERCLA, as amended.
(b) Remedial action cooperative
agreement requirements: assurances.
The State must comply with all special
conditions in the cooperative agreement.
In addition, before beginning remedial
action, the State must provide EPA with
written assurances as specified below.
(1) Operation and maintenance. The
State must provide an assurance that it
will assume responsibility for the
operation and maintenance of
implemented remedial actions for the
expected life of each such action.
(2) Cost sharing. The State must
provide assurances for cost sharing as
follows:
(i) Privately-operated. Where a
facility was privately operated, whether
privately or publicly owned, at the time
of disposal, the State must provide 10
percent of the cost of the remedial
action, if CERCLA-funded.
(ii) Publicly-operated. Where a facility
was publicly operated by a State or
political subdivision at the time of
disposal of hazardous substances at the
facility, the State must provide at least
50 percent of the cost of removal,
remedial planning, and remedial action
if the remedial action is CERCLA-
funded.
(3) Off-site storage, treatment, or
disposal. If offsite storage, destruction,
treatment, or disposal is required, the
State must assure the availability of a
hazardous waste disposal facility that is
in compliance with Subtitle C of the
Solid Waste Disposal Act and is
acceptable to EPA.
[4] Property title and interest
acquisition. If appropriate, the State
must assure EPA that it will take title to,
acquire interest in, or accept transfer of
such interest in real property acquired
with CERCLA funds. See § 35.6400 of
this subpart for additional information
on property title and interest
requirements.
§ 35.6110 Federally recognized Indian
Tribe-lead remedial cooperative
agreements.
(a) Application requirements. The
Federally-recognized Indian Tribe must
comply with all of the requirements
described in § 35.6105(a) of this subpart,
except for the intergovernmental review
requirements described in
§ 35.6055(a)(2).
(b) Cooperative agreement
requirements. (1) The Federally
recognized Indian Tribe must comply
with all special conditions in the
cooperative agreement.
(2) If appropriate, the Federally-
recognized Indian Tribe must assure
EPA that it will take title to, acquire
interest in, or accept transfer of such
interest in real property acquired with
CERCLA funds. See § 35.6400 of this
subpart regarding information on
property title and interest requirements.
§ 35.6115 Political subdivision-lead
remedial cooperative agreements.
(a) General. If both the State and EPA
agree, a political subdivision with the
necessary capabilities and jurisdictional
authority may assume lead
responsibility for a site. The State and
political subdivision must enter into a
three-party Superfund State Contract
(SSC) with EPA before a political
subdivision can be awarded a
cooperative agreement.
(b) Three-party Superfund State
Contract requirements. The three-party
SSC must specify the responsibilities of
the signatories. By signing the SSC, the
EPA, the State, and the political
subdivision agree to:
(1) Ensure that the SSC specifies the
substantial and meaningful involvement
of the State as required by section 121
(f)(l) of CERCLA, as amended.
(2) Ensure that the three-party SSC
includes the State's CERCLA 104
assurances at the time of remedial
action, if the political subdivision is
designated the lead for remedial action.
(3) Follow the appropriate
administrative requirements regarding
SSC's described in § 35.6805, 35.6815,
and 35.6820 of this subpart.
(c) Political subdivision cooperative
agreement requirements.—(1)
Application requirements. To receive a
remedial cooperative agreement, the
political subdivision must prepare an
application which includes the
documentation described in
§ 35.6105(a)(l) through (a)(5).
(2) Cooperative agreement
requirements. The political subdivision
must comply with all special conditions
in the cooperative agreement.
§ 35.6120 Twenty-year waste capacity.
After October 17.1989. EPA will not
enter into a cooperative agreement for a
remedial action without an adequate
assurance as required by section
104(c)(9) that there are hazardous waste
treatment or disposal facilities that
comply with Subtitle C of the Solid
Waste Disposal Act that have adequate
capacity for the destruction, treatment,
or secure disposition of all hazardous
wastes that are reasonably expected to
be generated for 20 years after the date
of the cooperative agreement.
Enforcement Cooperative Agreements
§ 35.6150 Eligibility for enforcement
cooperative agreements.
States may apply for enforcement
cooperative agreements.
§35.6155 State-lead enforcement
cooperative agreements.
The State must comply with the
requirements described in § 35.6105(a]
(1) through (5) of this subpart.
Assurances and provisions which apply
to enforcement activities must be
contained in the cooperative agreement.
The CERCLA assurances described in
§ 35.6105(b) are not applicable for
enforcement actions.
Removal Response Cooperative
Agreements
§ 35.6200 Eligibility for removal
cooperative agreements.
States and Federally recognized
Indian Tribes may apply for non-time-
critical removal cooperative agreements.
§ 35.6205 Removal cooperative
agreements.
(a) The State must comply with the
requirements described in § 35.6l05(a)
(1) through (5) of this subpart. Federally
recognized Indian Tribes must comply
with the requirements described in
§ 35.6105 (a)(l), and (a)(3) through (a)(5)
of this subpart.
(b) The State is not required to share
in the cost of a CERCLA-funded removal
action, unless the removal is conducted
at a site that was publicly operated by a
State or political subdivision at the time
of disposal of hazardous substances and
a CERCLA-funded remedial action is
ultimately undertaken at the site. In this
situation, the State must share at least
50 percent in the cost of all removal,
remedial planning, and remedial action
costs at the time of the remedial action
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as described in § 35.6105(b)(2)(ii) of this
subpart.
(c) Federally recognized Indian Tribes
are never required to share in the cost of
a CERCLA-funded removal action.
Financial Administration Requirements
Under a Cooperative Agreement
§ 35.6250 Standards tor financial
management systems.
(a) Accounting system standards.—(1)
General. The recipient's and its
contractor's systems must track
expenses by site and activity, according
to object class. The systems must also
provide control, accountability, and an
assurance that funds, property, and
other assets are used only for their
authorized purposes. The recipient must
allow an EPA review of the adequacy of
the financial management system as
described in 40 CFR 31.20(c).
(2) Allowable costs. The recipient's
and its contractor's systems must
comply with the appropriate allowable
cost principles described in 40 CFR
31.22.
(3) Pre-remedial. The systems need
not track expenses by site. However, all
pre-remedial costs must be documented
under a single Superfund account
number designated specifically for the
pre-remedial activity.
(4) Accounting system control
procedures. Except as provided for in
paragraph (a)(3) of this section,
accounting system control procedures
must ensure that accounting information
is:
(i) Accurate, charging only costs
attributable to the site and activity; and
(ii) Complete, recording and charging
to individual sites and activities all
costs attributable to the recipient's
CERCLA effort.
(5) Financial reporting. The recipient's
accounting system must use actual costs
as the basis for all reports of direct site
charges. The recipient must comply with
the requirements for financial reporting
contained in § 35.6670 of this subpart.
(b) Recordkeeping system standards.
[l] The recipient must maintain a
recordkeeping system that consists of
complete site-specific files containing
documentation of costs incurred.
(2) The recipient must provide this
site-specific documentation to the EPA
Regional Office upon request and within
specified time frames (generally within
30 days of request).
(3) In addition, the recipient and the
recipient's contractors must comply with
the requirements regarding records
described in §§ 35.6700, 35.6705. and
35.6710 of this subpart. The recipient
must comply with the requirements
regarding source documentation
described in 40 CFR 31.20(b){6).
(4) For the pre-remedial activity, the
recordkeeping system must comply with
the requirements described in paragraph
(a)(3) of this section.
§ 35.6255 Period for availability of funds.
The recipient must comply with the
requirements regarding the availability
of funds described in 40 CFR 31.23.
§35.6260 Cost sharing.
The recipient may not use costs
incurred at one site to meet the 'cost
sharing obligation at another site.
However, the recipient may apply
excess credits from one site to the
required cost-share at another site. See
§ 35.6270(c)(3) of this subpart for the
requirements regarding the use of excess
credits. The recipient must comply with
the requirements regarding cost snaring
described in 40 CFR 31.24.
§35.6265 Payments.
(a) General. In addition to the
following requirements, the recipient
must comply with the requirements
regarding payment described in 40 CFR
31.21 (0 through (h).
(1) Assignment of payment. The
recipient cannot assign the right to
receive payments under the recipient's
cooperative agreement. EPA will make
payments only to the payee identified in
the cooperative agreement.
(2) Interest. If the recipient earns
interest on an advance of EPA funds, the
recipient must return the interest unless
the recipient is a State or State agency
as defined under section 203 of the
Intergovernmental Cooperation Act of
1968, or a tribal organization as defined
under section 102. 103. or 104 of the
Indian Self-Determination and
Education Assistance Act of 1975 (Pub.
L. 93-638).
(b) Payment Method— •{!) Letter of
credit. In order to receive payment by
the letter of credit method, the recipient
must comply with the requirements
regarding letter of credit described in 40
CFR 31.20(b)(7) and 31.21(b). The
recipient must attribute costs to specific
sites and activities for drawdown
purposes except for the pre-remedial
activity.
(2) Reimbursement. If the recipient is
unable to meet letter of credit
requirements, EPA will pay the recipient
by reimbursement. The recipient must
comply with the requirements regarding
reimbursement described in 40 CFR
§ 35.6270 Recipient payment of response
costs.
The recipient may pay for its share of
response costs using cash, services,
credits or any combination of these, as
follows:
(a) Cash. The recipient may pay for its
share of response costs in the form of
cash.
(b) Services. The recipient may
provide equipment and services to
satisfy its cost share requirements under
cooperative agreements. The recipient
must comply with the requirements
regarding in-kind and donated services
described in 40 CFR 31.24 (b) and (c).
(c) Credit—(I) General credit
requirements. Credits are limited to
State expenses that EPA determines to
be reasonable, documented, direct, out-
of-pocket expenditures of non-Federal
funds for remedial action. Credits are
established on a site-specific basis. Only
a State may claim credit.
(i) The State may claim credit for
response activity expenditures or
obligations incurred by the State or
political subdivision between January 1,
1978 and December 11,1980.
(ii) The State may claim credit for
remedial action expenditures incurred
by the State after October 17,1986.
(iii) The State may not claim credit for
removal actions taken after December
11,1980.
(2) Credit submission requirements—
(i) Expenditures incurred before a site is
listed on the NPL. Although EPA may
require additional documentation, the
State must submit the following before
EPA will approve the use of the credit:
(A) Specific amounts claimed for
credit, by site (estimated amounts are
unacceptable), based on supporting cost
documentation;
(B) Units of government (State agency,
county, local) that incurred the costs, by
site;
(C) Description of the specific function
performed by each unit of government at
each site;
(D) Certification (signed by the State's
fiscal manager or the financial director
for each unit of government) that credit
costs have not been previously
reimbursed by the Federal government
or any other party, and have not been
used for matching purposes under any
other Federal program or grant; and
(E) Documentation, if requested by
EPA, to ensure the actions undertaken
at the site are cost eligible and
consistent with CERCLA, as amended,
and the NCP requirements. This
requirement does not apply for costs
incurred before December 11,1980.
(ii) Expenditures incurred after a site
is listed on the NPL. A State may
receive credit for remedial action
expenditures after October 17,1986,
only if the State entered into a
cooperative agreement before incurring
costs at the site.
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(3) Use of credit. The State must first
apply credit at the site at which it was
earned. With the approval of EPA, the
State may use excess credit earned at
one site for its cost share at another site.
EPA will not reimburse excess credit.
(4] Credit verification. Credits are
subject to verification by audit and
technical review of actions performed at
sites.
(d) Advance match. (1) A cooperative
agreement entered into after October 17,
1986 cannot authorize a State to
contribute funds during remedial
planning and then apply those
contributions to the remedial action cost
share (advance match).
(2) A State may seek reimbursement
for costs incurred under cooperative
agreements which authorize advance
match.
[3) Reimbursements are subject to the
availability of appropriated funds.
(4) [f the State does not seek
reimbursement, EPA will apply the
advance match to off-set the State's
required cost share for remedial action
at the site. The State may not use
advance match for credit at any other
site nor may the State receive
reimbursement until the conclusion of
CERCLA-funded remedial response
activities.
(5] Claims for advance match are
subject to verification by audit.
§ 35.6275 Program Income.
The recipient must comply with the
requirements regarding program income
described in 40 CFR 31.25.
Personal Property Requirements Under
a Cooperative Agreement
§ 35.6300 General personal property
acquisition and use requirements.
(a) General. (1) Property may be
acquired only when authorized in the
cooperative agreement.
[2] The recipient must acquire the
property during the approved project
period.
(3) The recipient must:
(i) Charge property costs by site and
activity;
(ii) Document the use of the property;
and
(iii) Solicit and follow EPA's
instructions on the disposal of any
property purchased with CERCLA funds
as specified in §§ 35.6340 and 35.6345 of
this subpart.
(b) Exception. The recipient is not
required to charge property costs by site
under a pre-remedial or Core Program
Cooperative Agreement.
§ 35.6305 Obtaining supplies.
To obtain supplies, the recipient must
agree to comply with the requirements
in §§ 35.6300, 35.6315(b), and 35.6325
through 35.6335 of this subpart.
§ 35.6310 Obtaining equipment.
To obtain equipment, the recipient
must agree to comply with the
requirements in § 35.6300 and §§ 35.6315
through 35.6350 of this subpart.
§ 35.6315 Alternative methods for
obtaining property.
(a) Purchase with recipient funds. The
recipient may purchase equipment with
the recipient's own funds and may
charge EPA a fee for using equipment on
a CERCLA-funded project. The fee must
be based on a usage rate, subject to the
usage rate requirements in § 35.6320 of
this subpart.
(b) Borrow Federally owned property.
The recipient may borrow Federally
owned property, with the exception of
motor vehicles, for use on CERCLA-
funded projects. The loan of the
Federally owned property may only
extend through the project period. At the
end of the project period, or when the
Federally owned property is no longer
needed for the project, the recipient
must return the property to the Federal
Government.
(c) Lease, use contractor services, or
purchase with CERCLA funds. To
acquire equipment through lease, use of
contractor services, or purchase with
CERCLA funds, the recipient must
conduct and document a cost
comparison analysis to determine which
of these methods of obtaining equipment
is the most cost effective. In order to
obtain the equipment, the recipient must
submit documentation of the cost
comparison analysis to EPA for
approval. The recipient must obtain the
equipment through the most cost
effective method, subject to the
requirements listed below:
(1) lease or rent equipment. If it is the
most cost effective method of
acquisition, the recipient may lease or
rent equipment, subject only to the
requirements in § 35.6300 of this subpart.
(2) Use contractor services, (i) If it is
the most cost effective method of
acquisition, the recipient may hire the
services of a contractor.
(ii) The recipient must obtain award
official approval before authorizing the
contractor to purchase equipment with
CERCLA funds. (See § 35.6325 of this
subpart regarding the title and vested
interest of equipment purchased with
CERCLA funds.) This does not apply for
recipients who have used the sealed
bids method of procurement.
(iii) The recipient must require the
contractor to allocate the cost of the
contractor services by site and activity.
(3) Purchase equipment with CERCLA
funds. If equipment purchase is the most
cost-effective method of obtaining the
equipment, the recipient may purchase
the equipment with CERCLA funds. To
purchase equipment with CERCLA
funds, the recipient must comply with
the following requirements:
(i) The recipient must include in the
cooperative agreement application a list
of all items of equipment to be
purchased with CERCLA funds, with the
price of each item.
(ii) If the equipment is to be used on
more than one site, the recipient must
allocate the cost of the equipment by
site and activity by applying a usage
rate subject to the usage rate
requirements in § 35.6320 of this subpart.
(iii) The recipient may not use
CERCLA funds to purchase a
transportable or mobile treatment
system.
§35.6320 Usage rate.
(a) Usage rate approval. To charge
EPA a fee for use of equipment
purchased with recipient funds or to
allocate the cost of equipment by site
and activity, the recipient or the
recipient's contractor must apply a
usage rate. The recipient must submit
documentation of the usage rate
computation to EPA. EPA must approve
the usage rate.
(b) Usage rate application. The
recipient or the recipient's contractor
must record the use of the equipment by
site and activity and must apply the
usage rate to calculate equipment
charges by site and activity. For Core
Program and pre-remedial activities, the
recipient is not required to apply a usage
rate.
§ 35.6325 Title and EPA Interest In
CERCLA-funded property.
(a) EPA's interest in CERCLA-funded
property. EPA has an interest (the
percentage of EPA's participation in the
total award) in both equipment and
supplies purchased with CERCLA funds.
(b) Title in CERCLA-funded property.
Title in both equipment and supplies
purchased with CERCLA funds vests in
the recipient.
(1) Right to transfer title. EPA retains
the right to transfer title of all property
purchased with CERCLA funds to the
Federal Government or a third party
within 120 calendar days after project
completion or at the time of disposal.
(2) Equipment used as all or part of
the remedy. The following requirements
apply to equipment used as all or part of
the remedy:
(i) Fixed in-place equipment. EPA will
relinquish its interest in the title to fixed
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in-place equipment after certifying that
the remedy is functional and
operational.
(ii) Equipment that is an integral part
of services to individuals. EPA will
relinquish its interest in equipment that
is an integral part of services to
individuals, such as pipes, lines, or
pumps providing hookups for
homeowners on an existing water
distribution system, when EPA certifies
that the remedy is functional and
operational.
§ 35.6330 Title to Federally owned
property.
Title to all Federally owned property
vests in the Federal Government.
§ 35.6335 Properly management
standards.
The recipient and the recipient's
contractor must comply with the
following property management
standards for property purchased with
CERCLA funds. The recipient may use
its own property management system if
it meets the following standards.
(a) Control. The recipient must
maintain:
(1) Property records for CERCLA-
funded property which include the
contents specified in § 35.6700(c) of this
subpart.
(2] A control system which ensures
adequate safeguards for prevention of
loss, damage, or theft of,the property.
The recipient must make provisions for
the thorough investigation and
documentation of any loss, damage, or
theft;
(3) Procedures to ensure maintenance
of the property in good-condition and
periodic calibration of the instruments
used for precision measurements;
(4) Sales procedures to ensure the
highest possible return, if the recipient is
authorized to sell the property;
(5) Provisions for financial control
and accounting in the financial
management system of all equipment;
and
(6) Identification of all Federally
owned property.
(b) Inventory and reporting for
CERCLA-funded equipment —(1)
Physical inventory. The recipient must
conduct a physical inventory at least
once every two years for all equipment
except that which is part of the in-place
remedy. The recipient must reconcile
physical inventory results with the
equipment records.
(2) Inventory reports. The recipient
must comply with requirements for
inventory reports set forth in § 35.6660
of this subpart.
(c) Inventory and reporting for
Federally owned property—(1) Physical
inventory. The recipient must conduct a
physical inventory:
(i) Annually;
(ii) When the property is no longer
needed; and
(iii) Within 90 days from the end of
the project period.
(2) Inventory reports. The recipient
must comply with requirements for
inventory reports in § 35.6660 of this
subpart.
§ 35.6340 Disposal of CERCLA-funded
property.
(a) Equipment. For equipment which is
no longer needed, or at the end of the
project period, whichever is earlier, the
recipient must:
(1) Analyze two alternatives: the cost
of leaving the equipment in place, and
the cost of removing the equipment and
disposing of it in another manner.
(2) Document the analysis of the two
alternatives in the inventory report. See
§ 35.6660 of this subpart regarding
requirements for the inventory report.
(i) If it is most cost-effective to remove
the equipment and dispose of it in
another manner
(AJ If the equipment has a residual
fair market value of $5,000 or more, the
recipient must request disposition
instructions from EPA in the inventory
report. See 5 35.6345 of this subpart for
equipment disposal options.
(B) If the equipment has a residual fair
market value of less than $5,000, the
recipient may retain the equipment for
the recipient's use on another CERCLA
site. If, however, there is any remaining
residual value at the time of final
disposition, the recipient must reimburse
the Hazardous Substance Superfund for
EPA'a vested interest in the current fair
market value of the equipment at the
time of disposition.
(ii) If it is most cost-effective to leave
the equipment in place, recommend in
the Inventory report that the equipment
be left in place.
(3) Submit the inventory report to
EPA, even if EPA has stopped
supporting the project.
(b) Supplies. (1) If supplies have an
aggregate fair market value of $5,000 or
more at the end of the project period, the
recipient must take one of the following
actions at the direction of EPA:
(i) Use the supplies on another
CERCLA site and reimburse the original
site for the fair market value of the
supplies;
(ii) If both the recipient and EPA
concur, keep the supplies and reimburse
the Hazardous Substance Superfund for
EPA's interest in the current fair market
value of the supplies; or
(iii) Sell the supplies and reimburse
the Hazardous Substance Superfund for
EPA's interest in the current fair market
value of the supplies, less any
reasonable selling expenses.
(2) If the supplies remaining at the end
of the project period have an aggregate
fair market value of less than $5.000, the
recipient may keep the supplies to use
on another CERCLA site. If the recipient •
cannot use the supplies on another
CERCLA site, then the recipient may
keep or sell the supplies without
reimbursing the Hazardous Substance
Superfund.
§ 35.6345 Equipment disposal options.
The following disposal options are
available:
(a) Use the equipment on another
CERCLA site and reimburse the original
site for the fair market value of the
equipment;
(b) If both the recipient and EPA
concur, keep the equipment and
reimburse the Hazardous Substance
Superfund, for EPA's interest in the
current fair market value of the
equipment;
(c) Sell the equipment and reimburse
the Hazardous Substance Superfund for
EPA's interest in the current fair market
value of the equipment, less any
reasonable selling expenses; or
(d) Return the equipment to EPA and,
if applicable, EPA will reimburse the
recipient for the recipient's
proportionate share in the current fair
market value of the equipment.
§ 35.6350 Disposal of Federally owned
property.
When Federally owned property is no
longer needed, or at the end of the
project, the recipient must inform EPA
that the property is available for return
to the Federal Government. EPA will
send disposition instructions to the
recipient.
Real Property Requirements Under a
Cooperative Agreement
§ 35.6400 Acquisition and transfer of
Interest
(a) An interest in real property may be
acquired only with prior approval of
EPA.
(1) If a State or Federally recognized
Indian Tribe acquires real property in
order to conduct the response, the
recipient with jurisdiction over the real
property must agree to acquire and hold
the necessary real property interest.
(2) If it is necessary for the Federal
Government to acquire the interest in
real property to permit conduct of the
response, the State or Federally
recognized Indian Tribe must agree to
accept transfer of the acquired interest
on or before the completion of the
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response action. States and Federally
recognized Indian Tribes must follow
the requirements in 5 35.6105(b}(5) and
35.6110(b)(2) of this subpart. Political
subdivisions must follow the
requirements in § 35.6815(c) of this
subpart.
(b) The State or Federally recognized
Indian Tribe must comply with
applicable Federal regulations for real
property acquisition under assistance
agreements contained in part 4 of this
chapter.
535.6405 Use.
The recipient must comply with the
requirements regarding real property
described in 40 CFR 31.31.
Copyright Requirements Under a
Cooperative Agreement
5 35.6450 General requirements.
The recipient must comply with the
requirements regarding copyrights
described in 40 CFR 31.34. The recipient
must comply with the requirements
regarding contract copyright provisions
described in § 35.6595(b)(3) of this
subpart.
Use of Recipient Employees ("Force
Account") Under a Cooperative
Agreement
§ 35.6500 General requirements.
(a) Force Account work is the use of
the recipient's own employees or
equipment for construction,
construction-related activities (including
architecture and engineering services),
or repair or improvement to a facility.
When using Force Account work, the
recipient must demonstrate that the
employees can complete the work as
competently as, and more economically
than, contractors, or that an emergency
necessitates the use of the Force
Account.
(b) Where the value of Force Account
services exceeds $25,000, the recipient
must receive written authorization for
use from the award official.
Procurement Requirements Under a
Cooperative Agreement
§ 35.6550 Procurement system standards.
(a) Recipient standards —(1)
Procurement system evaluation.
(i) An applicant or recipient must
evaluate its own procurement system to
determine if the system meets the intent
of the requirements of this subpart.
After evaluating its procurement system,
the applicant or recipient must complete
the "Procurement System Certification"
(EPA Form 5700-48) and submit the form
to EPA with its application.
(ii) The certification will be valid for
two years or for the length-of the project
period specified in the cooperative
agreement, whichever is greater, unless
the recipient substantially revises its
procurement system or the award
official determines that the recipient is
not following the intent of the
requirements in this part (see paragraph
(a)(4) of this section regarding EPA right
to review). If the recipient substantially
revises its procurement system, the
recipient must re-evaluate its system
and submit a revised EPA Form 5700-48.
(2) Certified procurement system.
Even if the applicant or recipient has
certified that its procurement system
meets the intent of the requirements of
this subpart, the EPA award official
retains the authority as stated in:
(i) Section 35.6565(d)(l)(iii),
"Noncompetitive proposals," regarding
award official authorization of
noncompetitive proposals;
(ii) Section 35.6565(b), "Sealed bids
(formal advertising)," regarding award
official approval for the use of a
procurement method other than sealed
bidding for a construction award;
(iii) 40 CFR 31.38(b)(12), •"Protests."
regarding EPA review of protests; and
(iv) 40 CFR 31.36(g)(2)(ii), "Awarding
Agency Review," regarding the review
of proposed awards over $25,000 which
are to be awarded to other than the
apparent low bidder under a sealed bid
procurement.
(3) Noncertifiedprocurement system.
If the applicant or recipient has not
certified that its procurement system
meets the intent of the requirements of
this subpart, then the recipient must
follow the requirements of this subpart
and allow EPA preaward review of
proposed procurement actions that will
use EPA funds. In addition, the recipient
with a noncertified procurement system
must comply with the following
requirements:
(i) The recipient's contractors and
subcontractors must submit their cost or
price data on EPA Form 5700-41, "Cost
or Price Summary Format for
Subagreements Under U.S. EPA Grants,"
or in another format which provides
information similar to that required by
EPA Form 5700-41. This specific
requirement is an addition to the
requirements regarding cost and price
analysis described in § 35.6585 of this
subpart
(ii) When soliciting bids or proposals,
the recipient must allow at least 30 days
between public notice of the project and
the deadline for receipt of bids or
proposals. The recipient must publish
the public notice in professional
journals, newspapers, or publications of
general circulation over a reasonable
area.
(4) EPA review. EPA reserves the right
to review any recipient's procurement
system or procurement action under a
cooperative agreement
(5) Code of conduct. The recipient
must comply with the requirements of 40
CFR 31.36(b)(3), which describes
standards of conduct for employees.
officers, and agents of the recipient.
(6) Completion of contractual and
administrative issues. The recipient is
responsible for the settlement and
satisfactory completion in accordance
with sound business judgement and
good administrative practice of all
contractual and administrative issues
arising out of procurements under the
cooperative agreement. EPA will not
substitute its judgement for that of the
recipient unless the matter is primarily a
Federal concern. Violations of law will
be referred to the local. State, tribal, or
Federal authority having proper
jurisdiction.
(7) Selection procedures. The. recipient
must have written selection procedures
for procurement transactions.
(i) EPA may not participate in a
recipient's selection panel except to
provide technical assistance. EPA staff
providing such technical assistance:
(A) Shall constitute a minority of the
selection panel (limited to making
recommendations on qualified offers
and acceptable proposals based on
published evaluation criteria) for the
contractor selection process; and
(B) Are not permitted to participate in
the negotiation and award of contracts.
(ii) When selecting a contractor,
recipients:
(A) May not use EPA contractors to
provide any support related to procuring
a State contractor.
(B) May use the Corps of Engineers for
review of State bidding documents,
requests for proposals and bids and
proposals received.
(8) Award. The recipient may award a
contract only to a responsible
contractor, as described in 40 CFR
31.36(b)[8). and must ensure that each
contractor performs in accordance with
all the provisions of the contract (see
also § 35.6560 of this subpart regarding
debarred and suspended contracts).
(9) Protest procedures. The recipient
must comply with the requirements
described in 40 CFR 31.36(b)(12)
regarding protest procedures.
(10) Reporting. The recipient must
comply with the requirements for
procurement-reporting contained in
§ 35.6665 of this subpart.
(11) Intergovernmental agreements.
To loster greater economy and
efficiency, recipients are encouraged to
enter into State and local
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intergovernmental agreements for
procurement or use of common goods
and services.
(12) Value engineering. The recipient
is encouraged to include value
engineering clauses in contracts for
construction projects of sufficient size to
offer reasonable opportunities for cost
reductions.
(b) Contractor standards—(1)
Disclosure requirements regarding
Potentially Responsible Party
relationships. The recipient must require
each prospective contractor to provide
with its bid or proposal:
(i) Information on its financial and
business relationship with all PRP's at
the site, and with their parent
companies, subsidiaries, affiliates,
subcontractors, and current clients or
attorneys and agents (this disclosure
requirement encompasses past and
anticipated financial and business
relationships, including services related
to any proposed or pending litigation,
with such parties);
(ii) Certification that, to the best of its
knowledge and belief, it has disclosed
such information or no such information
exists; and
(iii) A statement that it shall disclose
immediately any such information
discovered after submission of its bid or
proposal or after award. The recipient
shall evaluate such information and if a
member of the contract team has a
conflict of interest which prevents the
team from serving the best interests of
the recipient, the prospective contractor
may be declared nonresponsible and the
contract awarded to the next eligible
bidder or offerer.
(2) Conflict of interest—(i) Conflict of
interest notification. The contractor
shall notify the recipient of any actual,
apparent, or potential conflict of interest
regarding any individual working on a
contract assignment or having access to
information regarding the contract. This
notification shall include both
organizational conflicts of interest and
personal conflicts of interest. If a
personal conflict of interest exists, the
individual who is affected shall be
disqualified from taking part in any way
in the performance of the assigned work
that created the conflict of interest
situation.
(it) Contract provisions. The recipient
must incorporate the following
provisions of their equivalents into all
contracts:
(A) Contractor data. The contractor
shall not provide data generated or
otherwise obtained in the performance
of contractor responsibilities under a
contract to any party other than the
recipient, EPA, or its authorized agents.
(B) Employment, The contractor shall
not accept employment from any party
other than the recipient or Federal
agencies for work directly related to the
site(s) covered under the contract for
three years after the contract has
terminated, or until any cost recovery
action related to the site(s) is completed,
whichever is longer. The recipient
agency may exempt the contractor from
this requirement through a written
release. This release must include EPA
concurrence.
(C) Activity and cost documentation.
For six years after the contract has
terminated, or until any cost recovery
action related to the site(s) is completed,
whichever is longer, the contractor shall
provide witnesses and documentation of
activities performed and costs incurred
under the contract upon request to the
recipient, EPA, or its authorized agents.
The contractor shall be entitled to
reasonable compensation for any such
activities performed.
(3) Certification of independent price
determination. The recipient must
require that each contractor include in
its bid or proposal a certification of
independent price determination. This
document certifies that no collusion, as
defined by Federal and State antitrust
laws, occurred during bid preparation.
§35.6555 Competition.
The recipient must conduct all
procurement transactions in a manner
providing maximum full and open
competition.
(a) Restrictions on competition.
Inappropriate restrictions on
competition include the following:
(1) Placing unreasonable requirements
on firms in order for them to qualify to
do business;
(2) Requiring unnecessary experience
and excessive bonding requirements;
(3) Noncompetitive pricing practices
between firms or between affiliated
companies;
(4) Noncompetitive awards to
consultants that are on retainer
contracts;
(5) Organizational conflicts of interest;
(6) Specifying only a "brand name"
product, instead of allowing "an equal"
product to be offered and describing the
performance of other relevant
requirements of the procurement; and
(7) Any arbitrary action in the
procurement process.
(b) Geographic and Federally
recognized Indian Tribe preferences—
(1) Geographic. When conducting a
procurement, the recipient must prohibit
the use of statutorily or
admininstratively imposed in-State or
local geographical preferences in
evaluating bids or proposals. However,
nothing in this section preempts State
licensing laws. In addition, when
contracting for architectural and
engineering (A/E) services, the recipient
may use geographic location as a
selection criterion, provided that when
geographic location is used, its
application leaves an appropriate
number of qualified firms, given the
nature and size of the project, to
compete for the contract.
(2) Federally recognized Indian Tribe.
If the project benefits Indians, the
recipient must comply with the Indian
Self-Determination and Education
Assistance Act of 1975 (Pub. L. 93-638).
(c) Written specifications. The
recipient's written specifications must
include a clear and accurate description
of the technical requirements and the
qualitative nature of the material,
product or service to be procured.
(1) This description must not contain
features which unduly restrict
competition, unless the features are
necessary to:
(i) Test or demonstrate a specific
thing;
(ii) Provide for necessary
interchangeability of parts and
equipment; or
(iii) Promote innovative technologies.
(2) The recipient must avoid the use of
detailed product specifications if at all
possible.
(d) Public notice. When soliciting bids
or proposals, the recipient must give
adequate (generally 30 days before
receipt of bids or proposals) public
notice of the proposed project. The
recipient must publish the public notice
in professional journals, newspapers, or
publications of general circulation over
reasonable area. Recipients with a non-
certfified procurement system must
follow the public notice requirements
described in § 35.6550(a)(3)(ii) of this
subpart.
(e) Prequalified lists. Recipients may
use prequalified lists of persons, firms,
or products to acquire goods and
services. The list must be current and
include enough qualified sources to
ensure maximum open and free
competiton. Recipients must not
preclude potential bidders from
qualifying during the solicitation period.
§35.6560 Master list of debarred,
suspended, and voluntarily excluded
persons.
While evaluating bids or proposals,
the recipient and its contractor must
consult the most current "List of Parties
Excluded from Federal Procurement or
Nonprocurement Programs" to ensure
that the firms submitting proposals are
not prohibited from participation in
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assistance programs. The recipient and
its contractor must comply with the
requirements regarding subawards to
debarred and suspended parties
described in 40 CFR 31.35.
§ 35.6565 Procurement methods.
The recipient must comply with the
requirements for payment to consultants
described in 40 CFR 31.36(j). In addition,
the recipient must comply with the
following requirements:
(a) Small purchase procedures. Small
purchase procedures are those relatively
simple and informal procurement
methods for securing services, supplies,
or other property that do not cost more
than $25,000 in the aggregate. If small
purchase procurements are used, the
recipient must obtain and document
price or rate quotations from an
adequate number of qualified sources.
(b) Sealed bids (formal advertising).
[For a construction award, the recipient
must obtain the award official's
approval to use a procurement method
other than the sealed bid method.) Bids
are publicly solicited and a fixed-price
contract (lump sum or unit price) is
awarded to the responsible bidder
whose bid, conforming with all the
material terms and conditions of the
invitation for bids, is the lowest in price.
(1) In order for the recipient to use the
sealed bid method, the following
conditions must be met:
(i) A complete, adequate, and realistic
specification or purchase description is
available;
(ii) Two or more responsible bidders
are willing and able to compete
effectively for the business; and
(iii) The procurement lends itself to a
fixed-price contract and the selection of
the successful bidder can be made
principally on the basis of price.
(2) If the recipient uses the sealed bid
method, the recipient must comply with
the following requirements:
(i) Publicly advertise the invitation for
bids and solicit bids from an adequate
number of known suppliers, providing
them sufficient time prior to the date set
for opening the bids;
(ii) The invitation for bids, which must
include any specifications and pertinent
attachments, must define the items or
services in order for the bidder to
properly respond;
(iii] Publicly open all bids at the time
and place prescribed in the invitation
for bids;
(iv) Award the fixed-price contract in
writing to the lowest responsive and
responsible bidder. Where specified in
bidding documents, the recipient shall
consider factors such as discounts,
transportation cost, and life cycle costs
in determining which bid is lowest. The
recipient may only use payment
discounts to determine the low bid when
prior experience indicates that such
discounts are usually taken advantage
of; and
(v) If there is a sound documented
reason, the recipient may reject any or
all bids.
(c) Competitive proposals. The
technique of competitive proposals is
normally conducted with more than one
source submitting an offer, and either a
fixed-price or cost-reimbursement type
contract is awarded. It is generally used
when conditions are not appropriate for
the use of sealed bids. If the recipient
uses the competitive proposal method,
the following requirements apply:
(1) Recipients must publicize requests
for proposals and all evaluation factors
and must identify their relative
importance. The recipient must honor
any response to publicized requests for
proposals to the maximum extent
practical;
(2) Recipients must solicit proposals
from an adequate number of qualified
sources;
(3) Recipients must have a method for
conducting technical evaluations of the
proposals received and for selecting
awardees;
(4) Recipients must award the
contract to the responsible firm whose
proposal is most advantageous to the
program, with price and other factors
considered; and
(5) Recipients may use competitive
proposal procedures for qualifications-
based procurement of architectural/
engineering (A/E) professional services
whereby competitor's qualifications are
evaluated and the most qualified
competitor is selected, subject-to
negotiation of fair and reasonable
compensation. This method, where price
is not used as a selection factor, may
only be used in the procurement of A/E
professional services. The recipient may
not use this method to purchase other
types of services even though A/E firms
are a potential source to perform the
proposed effort.
(d) Noncompetitive proposals. (1) The
recipient may procure by
noncompetitive proposals only when the
award of a contract is infeasible under
small purchase procedures, sealed bids
or competitive proposals, and one of the
following circumstances applies:
(i) The item is available only from a
single source;
(ii) The public exigency or emergency
for the requirement will not permit a
delay resulting from competitive
solicitation (a declaration of an
emergency under State law does not
necessarily constitute an emergency
under the EPA Superfund program's
criteria);
(iii) The award official authorized
noncompetitive proposals; or
(iv) After solicitation of a number of
sources, competition is determined to be
inadequate.
(2) When using noncompetitive
procurement, the recipient must conduct
a cost analysis in accordance with the
requirements described in § 35.6585 of
this subparl.
§ 35.6570 Use of the same engineer during
subsequent phases of the project
(a) If the public notice clearly stated
the possibility that the firm or individual
selected could be awarded a contract
for follow-on services and initial
procurement complied with the
procurement request of this subpart, the
recipient of a CERCLA remedial
response cooperative agreement may
use the engineer procured to conduct
any or all of the remedial investigation
(RI), the feasibility study (FS), or design
to perform follow-on engineering
activities under the remedial response
without going through the public notice
and evaluation procedures.
(b) The recipient may also use the
same engineer during subsequent phases
of the project in the following cases:
(1) Where the recipient conducted the
RI, FS, or design activities without EPA
assistance but is using EPA funds for
follow-on activities, the recipient may
use the engineer for subsequent work
provided the recipient certifies:
(i) That it complied with the
procurement requirements in § 35.6565
of this subpart when it selected the
engineer and the code of conduct
requirements described in 40 CFR
31.36(b)(3).
(ii) That any EPA-funded contract
between the engineer and the recipient
meets all of the other provisions as
described in the procurement
requirements in this subpart.
(2) Where EPA conducted the RI. FS.
or design activities but the recipient will
assume the responsibility for subsequent
phases of remedial response under a
cooperative agreement, the recipient
may use, with the award official's
approval, EPA's engineer contractor
without further public notice or
evaluation provided the recipient
follows the rest of the procurement
requirements of this subpart to award
the contract.
§ 35.6575 Restrictions on types of
contracts.
(a) Prohibited contracts. The
recipient's procurement system must not
allow cost-plus-percentage-of-cost (e.g..
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a multiplier which includes profit) or
percentage-of-construction-cost types of
contracts.
(b) Removal. Under a removal
cooperative agreement, the recipient
must award a fixed price contract (lump
sum, unit price, or a combination of the
two) when procuring contractor support,
regardless of the procurement method
selected, unless the recipient obtains the
award official's prior written approval.
(c) Time and material contracts. The
recipient may use time and material
contracts only if no other type of
contract is suitable, and if the contract
includes a ceiling price that the
contractor exceeds at its own risk.
§ 35.6580 Contracting with minority and
women's business enterprises (MBE/WBE),
small businesses, and labor surplus area
firms.
(a) Procedures. The recipient must
comply with the six steps described in
40 CFR 31.36(e)(2) to ensure that MBE's,
WBE's and small businesses are used
whenever possible as sources of
supplies, construction, and services.
(b) Labor surplus firms. EPA
encourages recipients to procure
supplies and services from labor surplus
area firms.
(c) "Fair share"objectives. It is EPA's
policy that recipients award a fair share
of contracts to small, minority and
women's businesses. The policy requires
that fair share objectives for minority
and woman-owned business enterprises
be negotiated with the States and/or
recipients, but does not require fair
share objectives be established for small
businesses.
(1) Each recipient must establish an
annual "fair share" objective for MBE
and WBE use. A recipient is not
required to attain a particular statistical
level of participation by race, ethnicity,
or gender of the contractor's owners or
managers.
(2) If the recipient is awarded more
than one cooperative agreement during
the year, the recipient may negotiate an
annual fair share for all cooperative
agreements for that year. It is not
necessary to have a fair share for each
cooperative agreement. When a"
cooperative agreement is awarded to a
recipient with which a "fair share"
agreement has not been negotiated, the
recipient must not award any contracts
under the cooperative agreement until
the recipient has negotiated a fair share
objective with EPA.
§ 35.6585 Cost and price analysis.
(a) General. The recipient must
conduct and document a cost or price
analysis in connection with every
procurement action including contract
modification.
(1) Cost analysis. The recipient must
conduct and document a cost analysis
for all negotiated contracts over $25,000
and for all change orders regardless of
price. A cost analysis is not required
when adequate price competition exists
and the recipient can establish price
reasonableness. The recipient must base
its determination of price
reasonableness on a catalog or market
price of a commercial product sold in
substantial quantities to the general
public, or on prices set by law or
regulation.
(2) Price analysis. In all instances
other than those described in (a](l) of
this section, the recipient must perform
a price analysis to determine the
reasonableness of the proposed contract
price.
(b) Profit analysis. For each contract
in which there is no price competition
and in all cases in which cost analysis is
performed, the recipient must negotiate
profit as a separate element of the price.
To establish a fair and reasonable profit,
consideration will be given to the
complexity of the work to be performed,
the risk borne by the contractor, the
contractor's investment, the amount of
subcontracting, the quality of its record
of past performance, and industry profit
rates in the surrounding geographical
area for similar work.
§ 35.6590 Bonding and Insurance.
(a) General. The recipient must meet
the requirements regarding bonding
described in 40 CFR 31.36(h). The
recipient must clearly and accurately
state in the contract documents the
bonds and insurance requirements,
including the amounts of security
coverage that a bidder or offerer must
provide.
(b) Indemnification. When adequate
pollution liability insurance is not
available to the contractor, EPA may
indemnify response contractors for
liability related to damage from releases
arising out of the contractor's negligent
performance. The recipient must comply
with the requirements regarding
indemnification described in section 119
of CERCLA, as amended.
(c) Accidents and catastrophic loss.
The contractor must provide insurance
against accidents and catastrophic loss
to manage any risk inherent in
completing the project.
§ 35.6595 Contract provisions.
(a) General. Each contract must be a
sound and complete agreement, and
include the following provisions:
(1) Nature, scope, and extent of work
to be performed;
(2) Time frame for performance;
(3) Total cost of the contract; and
(4) Payment provisions.
(b) Other contract provisions.
Recipients' contracts must include the
following provisions:
(1) Energy efficiency. A contract must
comply with mandatory standards and
policies on energy efficiency contained
in the State's energy conservation plan
which is issued in compliance with the
Energy Policy and Conservation Act
(Pub. L. 94-163).
(2) Violating facilities. Contracts in
excess of $100,000 must contain a
provision which requires contractor
compliance with all applicable
standards, orders or requirements
issued under section 306 of the Clean
Air Act (42 U.S.C. 1857(h)), section 508
of the Clean Water Act (33 U.S.C. 1388),
Executive Order 11738, and EPA
regulations (40 CFR Part 15) which
prohibit the use of facilities included on
the EPA List of Violating Facilities under
nonexempt Federal contracts, grants or
loans.
(3) Patents, inventions, and
copyrights. All contracts must include
notice of EPA requirements and
regulations pertaining to reporting and
patent rights under any contract
involving research, developmental,
experimental or demonstration work
with respect to any discovery or
invention which arises or is developed
while conducting work under a contract.
This notice shall also include EPA
requirements and regulations pertaining
to copyrights and rights to data
contained in 40 CFR 31.34.
(4) Labor standards. (i) The recipient
must include a copy of EPA Form 5720-4
("Labor Standards Provisions for
Federally Assisted Construction
Contracts") in each contract for
construction (as defined by the
Secretary of Labor). The form contains
the Davis-Bacon Act requirements (40
U.S.C. 276a-276a-7), the Copeland
Regulations (29 CFR Part 3), the
Contract Work Hours and Safety
Standards Act Overtime Compensation
(940 U.S.C. 327-333), and the
nondiscrimination provisions in
Executive Order 11246, as amended.
(ii) If the contract is solely for
dismantling or demolition of buildings,
ground improvements, and other real
property structures, and the removal of
such structures or portions of them, the
Davis-Bacon Act does not apply unless
further work will result in construction
at that location, even though by separate
contract.
(5) Conflict of interest. The recipient
must include provisions pertaining to
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conflict of interest as described in
§ 35.6550(b)(2)(ii) of this subpart.
(c) Model clauses. The recipient must
comply with the requirements regarding
model contract clauses described in 40
CFR 33.1030.
§ 35.6600 Contractor claims.
(a) General. The recipient must
conduct an administrative and technical
review of each claim before EPA will
consider funding these costs.
(b) Claims settlement. The recipient
may incur costs (including legal,
technical and administrative) to assess
the merits of or to negotiate the
settlement of a claim by or against the
recipient under a contract, provided:
(1) The claim arises from work within
the scope of the cooperative agreement;
(2) A formal cooperative agreement
amendment is executed specifically
covering the costs before they are
incurred;
(3) The costs are not incurred to
prepare documentation that should be
prepared by the contractor to support a
claim against the recipient; and
(4) The award official determines that
there is a significant Federal interest in
the issues involved in the claim.
(c) Claims defense. The recipient may
incur costs (including legal, technical
and administrative] to defend against a
contractor claim for increased costs
under a contract or to prosecute a claim
to enforce a contract provided:
(1) The claim arises from work within
the scope of the cooperative agreement;
(2) A formal cooperative agreement
amendment is executed specifically
covering the costs before they are
incurred;
(3) Settlement of the claim cannot
occur without arbitration or litigation;
(4) The claim does not result from the
recipient's mismanagement;
(5) The award official determines that
there is a significant Federal interest in
the issues involved in the claim; and
(6) In the case of defending against a
contractor claim, the claim does not
result from the recipient's responsibility
for the improper action of others.
§35.6605 Privity of contract
Neither EPA nor the United States
shall be a party to any contract nor to
any solicitation or request for proposals.
§ 35.6610 Contracts awarded by a
contractor.
A contractor must comply with the
following provisions in the award of
contracts [i.e., subcontracts). (This
section does not apply to a supplier's
procurement of materials to produce
equipment, materials and catalog, off-
the-shelf, or manufactured items.)
(a) The requirements regarding
debarred, suspended, and voluntarily
excluded persons in § 35.6560 of this
subpart.
(b) The limitations on contract award
in § 35.6550(a)(8) of this subpart.
(c) The requirements regarding
minority and women's business
enterprises, and small business in
§ 35.6580 of this subpart.
(d) The requirements regarding
specifications in § 35.6555 (a)(6) and (c)
of this subpart.
(e) The Federal cost principles in 40
CFR 31.22.
(f) The prohibited types of contracts in
§ 35.6575(a) of this subpart.
(g) The cost, price analysis, and profit
analysis requirements in § 35.6585 of
this subpart.
(h) The applicable provisions in
§ 35.6595 (b) and (c) of this subpart.
(i) The applicable provisions in
§ 35.6555(b)(2).
Reports Required Under a Cooperative
Agreement
§ 35.6650 Quarterly progress reports.
(a) Reporting frequency. The recipient
must submit progress reports quarterly.
EPA may not require submission of
progress reports more often than
quarterly.
(b) Content for pre-remedial,
remedial, enforcement, and removal
progress reports. The quarterly progress
report must contain the following
information:
(1) An explanation of work
accomplished during the reporting
period, delays or other problems, if any,
and a description of the corrective
measures that are planned. For pre-
remedial cooperative agreements, the
report must include a list of the site-
specific products completed and the
number of technical hours spent to
complete each product.
(2) A comparison of the percentage of
the project completed to the project
schedule, and an explanation of
significant discrepancies.
(3) A comparison of the estimated
funds spent to date to planned .
expenditures and an explanation of
significant discrepancies. For pre-
remedial cooperative agreements, the
report should compare aggregated
expenditures. For remedial,
enforcement, and removal reports, the
comparison must be on a per task basis.
(4) An estimate of the time and funds
needed to complete the work required in
the cooperative agreement, a
comparison of that estimate to the time
and funds remaining, and a justification
for any increase.
§ 35.6655 Notification of significant
developments.
Events may occur between Ihfi
scheduled performance reporting dutes
which have significant impact upon the
cooperative agreement-supported
activity. In such cases, the recipient
must inform the EPA project officer as
soon as the following types of
conditions become known:
(a) Problems, delays, or adverse
conditions which will materially impair
the ability to meet the objective of the
award. This disclosure must include a
statement of the action taken, or
contemplated, and any assistance
needed to resolve the situation.
(b) Favorable developments which
enable meeting time schedules and
objectives sooner or at less cost than
anticipated or producing more beneficial
results than originally planned.
§ 35.6660 Property Inventory reports.
(a) CERCLA-fundedproperty—(!)
Content. The report must contain the
following information:
(1) Classification and value of
remaining supplies;
(ii) Description of all equipment
purchased with CERCLA funds,
including its current condition;
(iii) Verification of the current use and
continued need for the equipment by
site and activity;
(iv) Notification of any property which
has been stolen or vandalized; and
(v) A request for disposition
instructions for any equipment no longer
needed on the project.
(2) Reporting frequency. The recipient
must submit an inventory report to EPA
at the following times:
(i) Within 90 days after completing
any response activity at a site; and
(ii) When the equipment is no longer
needed for any response activity at a
site.
(b) Federally owned property—(\)
Content. The recipient must include the
following information for each
Federally-owned item in the inventory
report:
(i) Description;
(ii) Decal number,
(iii) Current condition; and
(iv) Request for disposition
instructions.
(2) Reporting frequency. The recipient
must submit an inventory report to the
appropriate EPA property accountable
officer at the following times:
(i) Annually, due to EPA on the
anniversary date of the award;
(ii) When the property is no longer
needed; and
(iii) Within 90 days after the end of
the project period.
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§ 35.6665 Procurement reports.
(a) Report for the Department of
Labor (DOL)—(1) Content. The recipient
must notify the DOL Regional Office of
Compliance, in writing, of each
construction contract which has or is
expected to have an aggregate value of
over $10,000 within a 12-month period.
The report must include the following:
(i) Construction contractor's name,
address, telephone number, and
employee identification number;
(ii) Award amount;
(iii) Estimated start and completion
dales; and
(iy) Project number, name, and site
location.
(2) Reporting frequency. The recipient
must notify the DOL Office of
Compliance within 10 calendar days
after the award of each such
construction contract. The recipient
must submit a copy of the report to the
EPA project officer.
(b) Name of contractor.—(1) Content.
For construction contracts over $25,000,
the recipient must submit the name of
the contractor to the project officer.
(2) Reporting frequency. The recipient
must submit the name of the contractor
to the project officer within 10 calendar
days after the award of each such
construction contract.
(c) Minority and women's business
enterprises (MBE/WBE)—(l) Content.
The recipient must report on its use of
MBE and WBE firms by submitting a
completed Minority and Women's
Business Utilization Report (SF-334) to
the award official.
(2) Reporting frequency. The recipient
must submit the MBE/WBE Utilization
Report within 30 days after the end of
each Federal fiscal quarter, regardless of
whether the recipient awards a contract
to an MBE or WBE during that quarter.
Reporting commences with the
recipient's award of its first contract
and continues until they and their
contractors have awarded their last
contract for the activities or tasks
identified In the cooperative agreement.
§35.6670 Financial Reports.
(a) General. The recipient must
comply with the requirements regarding
financial reporting described in 40 CFR
31.41.
(b) Financial Status Report.—(!)
Content, (i) The Financial Status Report
(SF-209) must include site and activity-
specific financial information.
(ii) A final Financial Status Report
(FSR) must have no unliquidated
obligations. If any obligations remain
unliquidated, the FSR is considered an
interim report and the recipient must
submit a final FSR to EPA after
liquidating all obligations.
(2) Reporting frequency. The recipient
must file a Financial Status Report as
follows:
(i) Annually (unless the cooperative
agreement requires quarterly or semi-
annual reports in accordance with 40
CFR 31.41 (b)(3)}, due 90 days after the
cooperative agreement anniversary date
if annual reports are required; due 30
days after the reporting period if
quarterly or semiannual reports are
required;
(ii) Within 90 calendar days after
completing each CERCLA-funded
response activity at a site (submit the
FSR only for each completed activity);
and
(iii) Within 90 calendar days after
termination or closeout of the
cooperative agreement.
Records Requirements Under a
Cooperative Agreement
§ 35.6700 Project records.
The recipient is responsible for
maintaining project files as described
below.
(a) General. The recipient must
maintain project records by site and
activity.
(b) Financial records. The recipient
must maintain records which support
the following items:
(1) Amount of funds received and
expended; and
(2) Direct and indirect project cost.
(c) Property records. The recipient
must maintain records which support
the following items:
(1) Description of the property;
(2) Manufacturer's serial number,
model number, or other identification
number
(3) Source of the property, including
the assistance identification number;
(4) Information regarding whether the
title is vested in the recipient or EPA;
(5) Unit acquisition date and cost;
(6) Percentage of EPA's interest;
(7) Location, use and condition (by
site and by activity) and the date this
information was recorded; and
(8) Ultimate disposition data,
including the sales price or the method
used to determine the price, or the
method used to determine the value of
EPA's interest for which the recipient
compensates EPA in accordance with
5 35.6340, 35.6345, and 35.6350 of this
subpart.
(d) Procurement records—(1) General.
The recipient must maintain records
which support the following items, and
must make them available to the public:
(i) The reasons for rejecting any or all
bids; and
(ii) The justification for a procurement
made on a noncompetitively negotiated
basis.
(2) Procurements in excess of $25,000.
The recipient's records and files for
procurements in excess of $25,000 must
include the following information, in
addition to the information required in
paragraph (d)(l) of this section:
(i) The basis for contractor selection;
(ii) A written justification for selecting
the procurement method;
(iii) A written justification for use of
any specification which does not
provide for maximum free and open
competition;
(iv) A written justification for the
choice of contract type; and
(v) The basis for award cost or price,
including a copy of the cost or price
analysis made in accordance with
§ 35.6585 of this subpart and
documentation of negotiations.
(e) Other records. The recipient must
maintain records which support the
following items:
(1) Time and attendance records and
supporting documentation;
(2) Documentation of compliance with
statutes and regulations that apply to
the project; and
(3) The number of site-specific
technical hours spent to complete each
pre-remedial product.
§ 35.6705 Records retention.
(a) Applicability. This requirement
applies to all financial and
programmatic records, supporting
documents, statistical records, and other
records which are required to be
maintained by the terms of this subpart,
program regulations, or the cooperative
agreement, or are otherwise reasonably
considered as pertinent to program
regulations or the cooperative
agreement.
(b) Length of retention period. The
recipient and the recipient's contractor
must retain all records for ten years
following submission of the final
Financial Status Report for the site, and
must obtain written approval from the
EPA award official before destroying
any records. If any litigation, claim,
negotiation, audit, cost recovery, or
other action involving the records has
been started before the expiration of the
ten-year period, the records must be
retained until completion of the action
and resolution of all issues which arise
from it, or until the end of the regular
ten-year period, whichever is later.
(c) Substitution of microform.
Microform copies may be substituted fur
the original records. The recipient must
have written EPA approval before
destroying original records. The
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microform copying must be performed in
accordance with the technical
regulations concerning micrographics of
Federal Government records (36 CFR
1230 et seq.) and EPA records
management procedures (EPA Order
2160 ').
(d) Starting date of retention period.
The recipient and the recipient's
contractor must comply with the
requirements regarding the starting
dates for records retention described in
40 CFR 31.42(c) (1) and (2).
§ 35.6710 Records access.
(a) Recipient requirements. The
recipient must comply with the
requirements regarding records access
described in 40 CFR 31.42(e).
(b) A vailability of records. The
recipient must, with the exception of
certain policy, deliberative, and
enforcement documents which may be
held confidential, ensure that all files
are available to the public..
(c) Contractor requirements. The
recipient's contractor must comply with
the requirements regarding records
access described in 40 CFR 31.36(i)(10).
Other Administrative Requirements for
Cooperative Agreements
§35.6750 Modifications.
The recipient must comply with the
requirements regarding changes to the
cooperative agreement described in 40
CFR 31.30.
§ 3S.67S5 Monitoring program
performance.
The recipient must comply with the
requirements regarding program
performance monitoring described in 40
CFR 31.40 (a] and (e).
§ 35.6760 Enforcement and termination
for convenience.
The recipient must comply with the
requirements regarding enforcement of
the terms of an award and termination
for convenience described in 40 CFR
31.43 and 31.44.
§ 35.6765 Non-Federal audit.
The recipient must comply with the
requirements regarding non-Federal
audits described in 40 CFR 31.26.
§35.6770 Disputes.
The recipient must comply with the
requirements regarding dispute
resolution procedures described in 40
CFR 31.70.
1 Statement of available.
§ 35.6775 Exclusion of third-party
benefits.
The cooperative agreement benefits
only the signatories to the cooperative
agreement.
§35.6780 Closeout.
(a) Closeout of a cooperative
agreement can take place in the
following situations:
(1) After the completion of all work
for a response activity:
(2) After all activities under a
cooperative agreement have been
completed; or
(3) Upon termination of the
cooperative agreement.
(b) The recipient must comply with
the closeout requirements described in
40 CFR 31.50 and 31.51.
§ 35.6785 Collection of amounts due.
The recipient must comply with the
requirements described in 40 CFR 31.52
regarding collection of amounts due.
§ 35.6790 High risk recipients.
If EPA determines that a recipient is
not responsible, EPA may impose
restrictions on the award as described
in 40 CFR 31.12.
Requirements for Administering a
Superfund State Contract (SSC)
§35.6800 General.
An SSC is required when either EPA
or a political subdivision is the lead
agency for a CERCLA response.
(a) EPA-IeadSSC. (1) An SSC with a
State or Federally recognized Indian
Tribe is required before EPA initiates
remedial action during an EPA-lead
remedial response.
(2) The State or Federally recognized
Indian Tribe must comply with the
requirements decribed in §§ 35.6805,
35.6810, and 35.6815 of this subpart
(b) Three-party SSC (political
subdivision-lead). (I] An SSC is
required before a political subdivision
takes the lead for a remedial response.
(2) Both the State and the political
subdivision must comply with the
requirements described in § § 35.6605,
35.6815, and 35.6620 of this subpart. In
addition, the State must comply with the
requirements described in § 35.6810 of
this subpart.
§35.6805 Contents of an SSC.
The SSC must include the following
provisions:
(a) Purpose of contract, which
describes the activities to be conducted
and the benefits to be derived by the
signatories:
(b) Negation of agency relationship
between the signatories, which states
that no signatories of the SSC can
represent or act on the behalf of any
other signatory in any matter associated
with the SSC;
(c) Amendability of the SSC. which
states that any change in the SSC must
be agreed to, in writing, by the
signatories, except as provided
elsewhere in the SSC;
(d) Litigation, which describes EPA'8
right to bring an action against any
party for liability under sections 106 and
107 of CERCLA, as amended;
(e) Sanctions for failure to comply
with SSC terms; which states that if the
signatories fail to comply with the terms
of the SSC, EPA may proceed under the
provisions of section 104(d)(2) of
CERCLA and may seek in the
appropriate court of competent
jurisdiction to enforce the SSC;
(f) The CERCLA assurances, as
appropriate, as described in § 35.6810 of
this subpart;
(g) Cost share provisions, which
include an estimate of the total project
costs and the basis for arriving at this
figure, and the payment terms as
negotiated by the signatories;
(h) Site access. The Stale is expected,
to the extent of its legal authority, to
secure access to the site and adjacent
properties; as well as all rights-of-way
and easements necessary to complete
the response actions undertaken
pursuant to the SSC;
(i) Exclusion of third-party benefits,
which states that the SSC is intended to
benefit only the signatories of the SSC,
and extends no benefit or right to any
third party not a signatory to the SSC;
and
(j) Any other provision deemed
necessary by all parties to facilitate the
response activities covered by the SSC.
§ 35.6810 Assurances.
The SSC must include the following:
(a) Operation and maintenance. The
State must provide an assurance that it
will assume responsibility for the
operation and maintenance of
implemented remedial actions for the
action's expected life. In addition, even
if the political subdivision is designated
as being responsible for O&M. the State
must guarantee that it will assume any
or all O&M activities in the event of
default by the political subdivision.
(b) Cost sharing. The State must
provide assurances for cost sharing as
provided in paragraphs (b)(l) and (2) of
this section. In addition, even if the
political subdivision is providing the
actual cost share, the State must
guarantee payment of the cost share in
the event of default by the political
subdivision.
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(1) Privately operated. Where a
facility was privately operated, whether
privately or publicly owned, at the time
of disposal, the State must provide 10
percent of the cost of the remedial
action, if CERCLA-funded.
(2) Publicly operated. Where a facility
was publicly operated by a State or
political subdivision at the time of
disposal of hazardous substances at the
facility, the State must provide at least
50 percent of the cost of removal,
remedial planning, and remedial action
if the remedial action is CERCLA-
funded.
(c) Off-site storage, treatment, or
disposal. If offsite storage, destruction,
treatment, or disposal is required, the
State must assure the availability of a
hazardous waste disposal facility that is
in compliance with Subtitle C of the
Solid Waste Disposal Act and is
acceptable to EPA. The political
subdivision may not provide this
assurance.
(d) Twenty-year waste capacity. After
October 17,1989, EPA will not enter into
an SSC for a remedial action without an
adequate assurance as required by
Section 104(c}(9) that there are
hazardous waste treatment or disposal
facilities that comply with Subtitle C of
the Solid Waste Disposal Act that have
adequate capacity for the destruction,
treatment, or secure disposition of all
hazardous wastes that are reasonably
expected to be generated for 20 years
after the date of the SSC.
(e) Property title and interest
acquisition. If appropriate, the State or
Federally-recognized Indian Tribe must
assure EPA that it will take title to,
acquire interest in, or accept transfer of
such interest in real property acquired
with CERCLA funds. The State must
provide this assurance even if it intends
to transfer this title to the political
subdivision. See § 35.6400 of this
subpart for additional information on
property title and interest requirements.
§35.6815 Administrative requirements.
In addition to the requirements
specified in 5 35.6805, the State and/or
political subdivision must comply with
the following:
(a) State review. The State must
review and comment on the response
actions pursuant to the SSC.
(b) Financial administration. The
State and/or political subdivision must
comply with the following requirements
regarding financial administration:
(1) Payment. The State may pay for its
share of the costs of the response
activities in cash or credit If the
political subdivision provides all or part
of the cost share, the political
subdivision may pay for those costs in
cash or in-kind services. The State may
not pay for its cost share using in-kind
services, unless the State has entered
into a support agency cooperative
agreement with EPA. The use of the
support agency cooperative agreement
as a vehicle for providing cost share
must be documented in the SSC. The
payment must be provided during the
course of the project. See S 35.6915 of
this subpart for requirements concerning
cost sharing under a support agency
cooperative agreement.
(2) Collection of amounts due. The
State and/or political subdivision must
comply with the requirements described
in 40 CFR 31.52(a) regarding collection
of amounts due.
(3) Failure to comply with negotiated
payment terms. Failure to comply with
negotiated payment terms may be
construed as default by the State on its
required assurances, even if the political
subdivision is responsible for providing
all or part of the cost share (see
§ 35.6805(e) of this subpart).
(c) Property. If the State or Federally-
recognized Indian Tribe is required to
accept title, the following requirements
concerning property must be met:
(1) Equipment used as all or part of
the remedy. The following requirements
apply to title and vested interest in
equipment used as all or part of the
remedy:
(i) Fixed in-place equipment. EPA will
relinquish its vested interest in the title
to fixed in-place equipment after
certifying that the remedy Is functional
and operational.
(ii) Equipment that is an integral part
of services to individuals. EPA will
relinquish its vested interest in
equipment that is an integral part of
services to individuals, such as pipes,
lines, or pumps providing hookups for
homeowners on an existing water
distribution system, when EPA certifies
that the remedy is functional and
operational.
(2) Real property. If it is necessary for
the Federal Government to acquire the
interest in real property to permit
conduct of the response, the State or
Federally recognized Indian Tribe must
agree to accept transfer of the acquired
interest on or before the completion of
the response action even if the State
intends to transfer title to the political
subdivision. See the requirements in
§ 35.6810(e) of this subpart regarding the
assurance for property title and interest
acquisition.
(d) Reports. The State and/or political
subdivision or Federally recognized
Indian Tribe must comply with the
following requirements regarding
reports:
(1) EPA-lead. The nature and
frequency of reports between EPA and
the State or Federally recognized Indian
Tribe will be specified in the SSC.
(2) Political subdivision-lead. The
political subdivision must submit to the
State a copy of the quarterly progress
report which the political subdivision is
required to submit to EPA in accordance
with the requirements of its cooperative
agreement. (See S 35.6650 for
requirements regarding quarterly
progress reports.)
(e) Records. The State and political
subdivision or Federally recognized
Indian Tribe must maintain records on a
site-specific basis. The State and
political subdivision must comply with
the requirements regarding record
retention described in § 35.6705 and the
requirements regarding record access
described in § 35.6710.
§35.6820 Conclusion of the SSC.
(a) The SSC remains in effect until
either one of the following occurs:
(1) SSC conclusion. In order to
conclude the SSC, the signatories must:
(i) Satisfactorily complete the
response activities at the site;
(ii) Produce a final accounting of all
project costs, including change orders
and outstanding contractor claims; and
(iii) Submit all State cost share
payments to EPA (see S 35.6810(b)
regarding cost share assurances).
(2) Termination of the SSC. The State
and political subdivision or Federally
recognized Indian Tribe must comply
with the requirements regarding
enforcement of the terms of an award
and termination for convenience
described in 40 CFR 31.43 and 31.44.
(b) For remedial action, the SSC
remains in effect until the final
reconciliation of response costs ensures
that both EPA and the State have
satisfied the cost share requirement
contained in section 104 of CERCLA, as
amended. Overpayments in an SSC may
not be used to meet the cost-sharing
obligation at another site.
Reimbursements for any overpayment
made after reconciliation will be made
to the payee identified in the SSC.
Requirements for Cora Program
Cooperative Agreements
§ 35.6850 Eligibility for Core Program
Cooperative Agreements.
States and Federally recognized
Indian Tribes may apply for Core
Program cooperative agreements in
order to conduct CERCLA
implementation activities that are not
assignable to specific sites, but are
intended to develop and maintain a
State's or Federally recognized Indian
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Tribe's ability to participate in the
CERCLA response program.
§35.6855 General.
The recipient of a Core Program
cooperative agreement must comply
with the requirements regarding
financial administration (§§ 35.6250
through 35.6275 of this subpart), property
(§§ 35.6300 through 35.6450),
procurement (§§ 35.6550 through
35.6610), reporting (§§ 35.6655 through
35.6670), records (§§ 35.6700 through
35.6710), and other administrative
requirements under a cooperative
agreement (§§ 35.6750 through 35.6780),
described in this subpart. Recipients
may not incur site-specific costs. Where
these sections entail site-specific
requirements, the recipient is not
required to comply on a site-specific
basis.
§ 35.6860 Application requirements.
To receive a Core Program
cooperative agreement the applicant
must submit an application form
("Application for Federal Assistance,"
SF-424, for non-construction programs)
to EPA. Applications for additional
funding need include only the revised
pages. The application must include the
following:
(a) A project workplan—(b)
Intergovernmental review comments, in
accordance with §35.6055(a)(2) of this
subpart (Federally recognized Indian
Tribes need not comply with this
requirement); and
(c) Project and budget periods. The
budget period is one year, and may be
extended incrementally, up to 12 months
at a time, based on EPA approval of an
amended workplan and budget. The
project period will be determined in the
cooperative agreement.
§ 3S.6B65 Quarterly progress reports.
(a) Reporting frequency. The recipient
must submit progress reports quarterly
on the activities delineated in the work
plan. EPA may not require submission of
progress reports more often than
quarterly.
(b) Content. The quarterly progress
report must contain the following
information:
(1) An explanation of work
accomplished during the reporting
period, a description of problems, if any,
and the corrective measures that are
planned;
(2) A comparison of the estimate of
funds spent to date to planned
expenditures; and
(3) An estimate of the funds needed to
complete the work required in the
cooperative agreement, and a
justification for any increase.
§35.6870 Cost sharing.
The recipient of a Core Program
cooperative agreement must provide at
least five percent of the direct and
indirect costs of all activities covered by
the Core Program cooperative
agreement. The recipient must provide
its cost share with non-Federal funds
not used for matching purposes under
any other cooperative agreement The
recipient may provide its share using in-
kind contributions. The recipient may
not use CERCLA State credits to offset
any part of the recipient's required
match for Core Program cooperative
agreements. See § 35.6270 (c) and (d)
regarding credit and advance match,
respectively.
§ 35.6875 Payment to recipient.
The State or Federally-recognized
Indian Tribe is not required to attribute
costs to specific sites and activities for
drawdown purposes for Core Program
cooperative agreement costs.
Requirements for Support Agency
Activities Under Cooperative
Agreements
§ 35.6900 Eligibility for support agency
cooperative agreements.
States and Federally-recognized
Indian Tribes may apply for support
agency cooperative agreements to
ensure their meaningful and substantial
involvement when EPA or a political
subdivision has the lead for response
activities, as specified in section
121(f)(l) of CERCLA.
§ 35.6905 Allowable activities.
Support agency activities are those
activities conducted by a State or
Federally-recognized Indian Tribe to
ensure the State's or Federally-
recognized Indian Tribe to ensure the
State's or Federally-recognized Indian
Tribe's meaningful and substantial
involvement when it is the support
agency at a Federal-lead site. The
activities described in section 121(f)(l)
of CERCLA, as amended, are eligible for
funding under a support agency
cooperative agreement.
§ 35.6910 Support agency cooperative
agreement requirements.
(a) Application requirements. The
applicant must comply with the
requirements described in § 35.6105(a)
(1), (2), (3), and (5) of this subpart.
(b) Cooperative agreement
requirements. The recipient must
comply with the requirements regarding
financial administration 35.6250 through
35.6275 of this subpart), property 35.6300
through 35.6450), procurement 35.6550
through 35.6610), reporting 35.6655
through 35.6670). records 35.6700 through
35.6710), and other administrative
requirements under a cooperative
agreement 35.6750 through 35.6780)
described in this subpart.
§35.6915 Cost sharing.
The requirements for cost sharing
under a support agency cooperative
agreement are the same as the cost
sharing requirements of § 35.6105(b)(2)
and § 35.6110(a) of this subpart. The
State may use in-kind services as part of
its cost share, as long as it is
documented in the SSC (see 5 35.6815(b)
for SSC payment requirements).
§ 35.6920 Quarterly progress reports.
(a) Reporting frequency. The recipient
must submit progress reports quarterly.
EPA may not require submission of
progress reports more often than
quarterly.
(b) Content. The quarterly progress
report must contain the following
information:
(1) An explanation of work
accomplished during the reporting
period, a discription of problems, if any.
and the corrective measures that are
planned;
(2) A comparison of the estimate of
funds spent to date to planned
expenditures; and
[3) An estimate of the funds needed to
complete the work required in the
cooperative agreement, and a
justification for any increase.
[FR Doc. 89-1132 Filed 1-26-69; 8:45 am]
BILLING CODE 6560-50-M
HeinOnline --54 Fed. Reg. 4151 1989
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