§ 1284. — Limitations and conditions.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 33USC1284]
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
CHAPTER 26--WATER POLLUTION PREVENTION AND CONTROL
SUBCHAPTER II--GRANTS FOR CONSTRUCTION OF TREATMENT WORKS
Sec. 1284. Limitations and conditions
(a) Determinations by Administrator
Before approving grants for any project for any treatment works
under section 1281(g)(1) of this title the Administrator shall
determine--
(1) that any required areawide waste treatment management plan
under section 1288 of this title (A) is being implemented for such
area and the proposed treatment works are included in such plan, or
(B) is being developed for such area and reasonable progress is
being made toward its implementation and the proposed treatment
works will be included in such plan;
(2) that (A) the State in which the project is to be located (i)
is implementing any required plan under section 1313(e) of this
title and the proposed treatment works are in conformity with such
plan, or (ii) is developing such a plan and the proposed treatment
works will be in conformity with such plan, and (B) such State is in
compliance with section 1315(b) of this title;
(3) that such works have been certified by the appropriate State
water pollution control agency as entitled to priority over such
other works in the State in accordance with any applicable State
plan under section 1313(e) of this title, except that any priority
list developed pursuant to section 1313(e)(3)(H) of this title may
be modified by such State in accordance with regulations promulgated
by the Administrator to give higher priority for grants for the
Federal share of the cost of preparing construction drawings and
specifications for any treatment works utilizing processes and
techniques meeting the guidelines promulgated under section
1314(d)(3) of this title and for grants for the combined Federal
share of the cost of preparing construction drawings and
specifications and the building and erection of any treatment works
meeting the requirements of the next to the last sentence of section
1283(a) of this title which utilizes processes and techniques
meeting the guidelines promulgated under section 1314(d)(3) of this
title.\1\
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\1\ So in original. The period probably should be a semicolon.
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(4) that the applicant proposing to construct such works agrees
to pay the non-Federal costs of such works and has made adequate
provisions satisfactory to the Administrator for assuring proper and
efficient operation, including the employment of trained management
and operations personnel, and the maintenance of such works in
accordance with a plan of operation approved by the State water
pollution control agency or, as appropriate, the interstate agency,
after construction thereof;
(5) that the size and capacity of such works relate directly to
the needs to be served by such works, including sufficient reserve
capacity. The amount of reserve capacity provided shall be approved
by the Administrator on the basis of a comparison of the cost of
constructing such reserves as a part of the works to be funded and
the anticipated cost of providing expanded capacity at a date when
such capacity will be required, after taking into account, in
accordance with regulations promulgated by the Administrator,
efforts to reduce total flow of sewage and unnecessary water
consumption. The amount of reserve capacity eligible for a grant
under this subchapter shall be determined by the Administrator
taking into account the projected population and associated
commercial and industrial establishments within the jurisdiction of
the applicant to be served by such treatment works as identified in
an approved facilities plan, an areawide plan under section 1288 of
this title, or an applicable municipal master plan of development.
For the purpose of this paragraph, section 1288 of this title, and
any such plan, projected population shall be determined on the basis
of the latest information available from the United States
Department of Commerce or from the States as the Administrator, by
regulation, determines appropriate. Beginning October 1, 1984, no
grant shall be made under this subchapter to construct that portion
of any treatment works providing reserve capacity in excess of
existing needs (including existing needs of residential, commercial,
industrial, and other users) on the date of approval of a grant for
the erection, building, acquisition, alteration, remodeling,
improvement, or extension of a project for secondary treatment or
more stringent treatment or new interceptors and appurtenances,
except that in no event shall reserve capacity of a facility and its
related interceptors to which this subsection applies be in excess
of existing needs on October 1, 1990. In any case in which an
applicant proposes to provide reserve capacity greater than that
eligible for Federal financial assistance under this subchapter, the
incremental costs of the additional reserve capacity shall be paid
by the applicant;
(6) that no specification for bids in connection with such works
shall be written in such a manner as to contain proprietary,
exclusionary, or discriminatory requirements other than those based
upon performance, unless such requirements are necessary to test or
demonstrate a specific thing or to provide for necessary
interchangeability of parts and equipment. When in the judgment of
the grantee, it is impractical or uneconomical to make a clear and
accurate description of the technical requirements, a ``brand name
or equal'' description may be used as a means to define the
performance or other salient requirements of a procurement, and in
doing so the grantee need not establish the existence of any source
other than the brand or source so named.
(b) Additional determinations; issuance of guidelines; approval by
Administrator; system of charges
(1) Notwithstanding any other provision of this subchapter, the
Administrator shall not approve any grant for any treatment works under
section 1281(g)(1) of this title after March 1, 1973, unless he shall
first have determined that the applicant (A) has adopted or will adopt a
system of charges to assure that each recipient of waste treatment
services within the applicant's jurisdiction, as determined by the
Administrator, will pay its proportionate share (except as otherwise
provided in this paragraph) of the costs of operation and maintenance
(including replacement) of any waste treatment services provided by the
applicant; and (B) has legal, institutional, managerial, and financial
capability to insure adequate construction, operation, and maintenance
of treatment works throughout the applicant's jurisdiction, as
determined by the Administrator. In any case where an applicant which,
as of December 27, 1977, uses a system of dedicated ad valorem taxes and
the Administrator determines that the applicant has a system of charges
which results in the distribution of operation and maintenance costs for
treatment works within the applicant's jurisdiction, to each user class,
in proportion to the contribution to the total cost of operation and
maintenance of such works by each user class (taking into account total
waste water loading of such works, the constituent elements of the
wastes, and other appropriate factors), and such applicant is otherwise
in compliance with clause (A) of this paragraph with respect to each
industrial user, then such dedicated ad valorem tax system shall be
deemed to be the user charge system meeting the requirements of clause
(A) of this paragraph for the residential user class and such small non-
residential user classes as defined by the Administrator. In defining
small non-residential users, the Administrator shall consider the volume
of wastes discharged into the treatment works by such users and the
constituent elements of such wastes as well as such other factors as he
deems appropriate. A system of user charges which imposes a lower charge
for low-income residential users (as defined by the Administrator) shall
be deemed to be a user charge system meeting the requirements of clause
(A) of this paragraph if the Administrator determines that such system
was adopted after public notice and hearing.
(2) The Administrator shall, within one hundred and eighty days
after October 18, 1972, and after consultation with appropriate State,
interstate, municipal, and intermunicipal agencies, issue guidelines
applicable to payment of waste treatment costs by industrial and
nonindustrial recipients of waste treatment services which shall
establish (A) classes of users of such services, including categories of
industrial users; (B) criteria against which to determine the adequacy
of charges imposed on classes and categories of users reflecting all
factors that influence the cost of waste treatment, including strength,
volume, and delivery flow rate characteristics of waste; and (C) model
systems and rates of user charges typical of various treatment works
serving municipal-industrial communities.
(3) Approval by the Administrator of a grant to an interstate agency
established by interstate compact for any treatment works shall satisfy
any other requirement that such works be authorized by Act of Congress.
(4) A system of charges which meets the requirement of clause (A) of
paragraph (1) of this subsection may be based on something other than
metering the sewage or water supply flow of residential recipients of
waste treatment services, including ad valorem taxes. If the system of
charges is based on something other than metering the Administrator
shall require (A) the applicant to establish a system by which the
necessary funds will be available for the proper operation and
maintenance of the treatment works; and (B) the applicant to establish a
procedure under which the residential user will be notified as to that
portion of his total payment which will be allocated to the cost of the
waste treatment services.
(c) Applicability of reserve capacity restrictions to primary,
secondary, or advanced waste treatment facilities or related
interceptors
The next to the last sentence of paragraph (5) of subsection (a) of
this section shall not apply in any case where a primary, secondary, or
advanced waste treatment facility or its related interceptors has
received a grant for erection, building, acquisition, alteration,
remodeling, improvement, or extension before October 1, 1984, and all
segments and phases of such facility and interceptors shall be funded
based on a 20-year reserve capacity in the case of such facility and a
20-year reserve capacity in the case of such interceptors, except that,
if a grant for such interceptors has been approved prior to December 29,
1981, such interceptors shall be funded based on the approved reserve
capacity not to exceed 40 years.
(d) Engineering requirements; certification by owner and operator;
contractual assurances, etc.
(1) A grant for the construction of treatment works under this
subchapter shall provide that the engineer or engineering firm
supervising construction or providing architect engineering services
during construction shall continue its relationship to the grant
applicant for a period of one year after the completion of construction
and initial operation of such treatment works. During such period such
engineer or engineering firm shall supervise operation of the treatment
works, train operating personnel, and prepare curricula and training
material for operating personnel. Costs associated with the
implementation of this paragraph shall be eligible for Federal
assistance in accordance with this subchapter.
(2) On the date one year after the completion of construction and
initial operation of such treatment works, the owner and operator of
such treatment works shall certify to the Administrator whether or not
such treatment works meet the design specifications and effluent
limitations contained in the grant agreement and permit pursuant to
section 1342 of this title for such works. If the owner and operator of
such treatment works cannot certify that such treatment works meet such
design specifications and effluent limitations, any failure to meet such
design specifications and effluent limitations shall be corrected in a
timely manner, to allow such affirmative certification, at other than
Federal expense.
(3) Nothing in this section shall be construed to prohibit a grantee
under this subchapter from requiring more assurances, guarantees, or
indemnity or other contractual requirements from any party to a contract
pertaining to a project assisted under this subchapter, than those
provided under this subsection.
(June 30, 1948, ch. 758, title II, Sec. 204, as added Pub. L. 92-500,
Sec. 2, Oct. 18, 1972, 86 Stat. 835; amended Pub. L. 95-217, Secs. 20-
24, Dec. 27, 1977, 91 Stat. 1572, 1573; Pub. L. 96-483, Sec. 2(a), (b),
Oct. 21, 1980, 94 Stat. 2360, 2361; Pub. L. 97-117, Secs. 10(a), (b),
11, 12, Dec. 29, 1981, 95 Stat. 1626, 1627; Pub. L. 100-4, title II,
Sec. 205(a)-(c), Feb. 4, 1987, 101 Stat. 18.)
Amendments
1987--Subsec. (a)(1). Pub. L. 100-4, Sec. 205(a), amended par. (1)
generally. Prior to amendment, par. (1) read as follows: ``that such
works are included in any applicable areawide waste treatment management
plan developed under section 1288 of this title;''.
Subsec. (a)(2). Pub. L. 100-4, Sec. 205(b), amended par. (2)
generally. Prior to amendment, par. (2) read as follows: ``that such
works are in conformity with any applicable State plan under section
1313(e) of this title;''.
Subsec. (b)(1). Pub. L. 100-4, Sec. 205(c), inserted at end ``A
system of user charges which imposes a lower charge for low-income
residential users (as defined by the Administrator) shall be deemed to
be a user charge system meeting the requirements of clause (A) of this
paragraph if the Administrator determines that such system was adopted
after public notice and hearing.''
1981--Subsec. (a)(5). Pub. L. 97-117, Sec. 10(a), inserted provision
that beginning Oct. 1, 1984, no grant be made under this subchapter to
construct that portion of any treatment works providing reserve capacity
in excess of existing needs on the date of approval of a grant for the
erection, building, etc., of a project for secondary treatment or more
stringent treatment or new interceptors and appurtenances, except that
in no event shall reserve capacity of a facility and its related
interceptors to which this subsection applies be in excess of existing
needs on Oct. 1, 1990, and that in any case in which an applicant
proposes to provide reserve capacity greater than that eligible for
Federal financial assistance under this subchapter, the incremental
costs of the additional reserve capacity be paid by the applicant.
Subsec. (a)(6). Pub. L. 97-117, Sec. 11, struck out ``, or at least
two brand names or trade names of comparable quality or utility are
listed and are followed by the words `or equal' '' after ``parts and
equipment'' and inserted provision that when in the judgment of the
grantee, it is impractical or uneconomical to make a clear and accurate
description of the technical requirements, a ``brand name or equal''
description be used as a means to define performance or other salient
requirements of a procurement, and in doing so the grantee need not
establish the existence of any source other than the brand or source so
named.
Subsec. (c). Pub. L. 97-117, Sec. 10(b), added subsec. (c).
Subsec. (d). Pub. L. 97-117, Sec. 12, added subsec. (d).
1980--Subsec. (b)(1). Pub. L. 96-483, Sec. 2(a), redesignated cl.
(C) as (B). Former cl. (B) relating to payment, as a condition of
approval of a grant, to an applicant by industrial users of that portion
of cost of construction allocable to the treatment of such industrial
waste to the extent attributable to the Federal share of the cost of
construction, was struck out.
Subsec. (b)(3) to (6). Pub. L. 96-483, Sec. 2(b), redesignated pars.
(4) and (5) as (3) and (4), respectively. Former par. (3) relating to a
formula determining the amount the grantee shall retain of the revenues
derived from the payment of costs by industrial users of waste treatment
services, to the extent costs are attributable to the Federal share of
eligible project costs, and former par. (6) relating to the exemption
from the requirements of par. (1)(B) of industrial users with a flow of
twenty-five thousand gallons or less per day, were struck out.
1977--Subsec. (a)(3). Pub. L. 95-217, Sec. 20, provided that any
priority list developed pursuant to section 1313(e)(3)(H) of this title
may be modified by such State in accordance with regulations promulgated
by the Administrator to give higher priority for grants for the Federal
share of the cost of preparing construction drawings and specifications
for any treatment works utilizing processes and techniques meeting the
guidelines promulgated under section 1314(d)(3) of this title and for
grants for the combined Federal share of the cost of preparing
construction drawings and specifications and the building and erection
of any treatment works meeting the requirements of the next to the last
sentence of section 1283(a) of this title which utilizes processes and
techniques meeting the guidelines promulgated under section 1314(d)(3)
of this title.
Subsec. (a)(5). Pub. L. 95-217, Sec. 21, provided that efforts to
reduce total flow of sewage and unnecessary water consumption be taken
into account, in accordance with regulations promulgated by the
Administrator, that the amount of reserve capacity eligible for a grant
under this subchapter be determined by the Administrator taking into
account the projected population and associated commercial and
industrial establishments within the jurisdiction of the applicant to be
served by such treatment works as identified in an approved facilities
plan, an areawide plan under section 1288 of this title, or an
applicable municipal master plan of development, and that, for the
purpose of this paragraph, section 1288 of this title, and any such
plan, projected population be determined on the basis of the latest
information available from the United States Department of Commerce or
from the States as the Administrator, by regulation, determines
appropriate.
Subsec. (b)(1). Pub. L. 95-217, Secs. 22(a)(1), (2), 24(c), inserted
``(except as otherwise provided in this paragraph)'' after
``proportionate share'' in cl. (A) and ``(which such portion, in the
discretion of the applicant, may be recovered from industrial users of
the total waste treatment system as distinguished from the treatment
works for which the grant is made)'' in cl. (B) and, at end of existing
provisions, inserted sentences under which a dedicated ad valorem tax
system is to be deemed the user charge system meeting the requirements
of cl. (A) for the residential user class and such small non-residential
user classes as defined by the Administrator in cases where an
applicant, as of Dec. 27, 1977, uses a system of dedicated ad valorem
taxes and the Administrator determines that the applicant has a system
of charges which results in the distribution of operation and
maintenance costs for treatment works within the applicant's
jurisdiction, to each user class, in proportion to the contribution to
the total cost of operation and maintenance of such works by each user
class (taking into account total waste water loading of such works, the
constituent elements of the wastes, and other appropriate factors), and
such applicant is otherwise in compliance with cl. (A) of this paragraph
with respect to each industrial user.
Subsec. (b)(3). Pub. L. 95-217, Secs. 23, 24(a), substituted
``necessary for the administrative costs associated with the requirement
of paragraph (1)(B) of this subsection and future expansion'' for
``necessary for future expansion'' in cl. (B) and, at end of existing
provisions, inserted sentence under which, subject to the approval of
the Administrator, the following: ``Not a grantee that received a grant
prior to Dec. 27, 1977, may reduce the amounts required to be paid to
such grantee by any industrial user of waste treatment services under
such paragraph, if such grantee requires such industrial user to adopt
other means of reducing the demand for waste treatment services through
reduction in the total flow of sewage or unnecessary water consumption,
in proportion to such reduction as determined in accordance with
regulations promulgated by the Administrator''.
Subsec. (b)(5), (6). Pub. L. 95-217, Secs. 22(b), 24(b), added pars.
(5) and (6).
Effective Date of 1987 Amendment
Section 205(d) of Pub. L. 100-4 provided that: ``This section
[amending this section] shall take effect on the date of the enactment
of this Act [Feb. 4, 1987], except that the amendments made by
subsections (a) and (b) [amending this section] shall take effect on the
last day of the two-year period beginning on such date of enactment.''
Effective Date of 1980 Amendment
Amendment by Pub. L. 96-483 effective Dec. 27, 1977, see section
2(g) of Pub. L. 96-483, set out as a note under section 1281 of this
title.
Elimination of Inapplicable Conditions or Requirements From Certain
Grants
Section 2(c) of Pub. L. 96-483 provided that: ``The Administrator of
the Environmental Protection Agency shall take such action as may be
necessary to remove from any grant made under section 201(g)(1) of the
Federal Water Pollution Control Act [section 1281(g)(1) of this title]
after March 1, 1973, and prior to the date of enactment of this Act
[Oct. 21, 1980], any condition or requirement no longer applicable as a
result of the repeals made by subsections (a) and (b) of this section
[amending subsec. (b) of this section] or release any grant recipient of
the obligations established by such conditions or other requirement.''
Section 2(c) of Pub. L. 96-483, set out above, effective Dec. 27,
1977, see section 2(g) of Pub. L. 96-483, set out as an Effective Date
of 1980 Amendment note under section 1281 of this title.
Cost Recovery; Suspension of Grant Requirements That Industrial Users
Make Payments
Section 75 of Pub. L. 95-217, as amended by Pub. L. 96-148, Sec. 1,
Dec. 16, 1979, 93 Stat. 1088; Pub. L. 96-483, Sec. 2(f), Oct. 21, 1980,
94 Stat. 2361, directed Administrator of Environmental Protection Agency
to study and report to Congress not later than last day of twelfth month
which begins after Dec. 27, 1977, cost recovery procedures from
industrial users of treatment works to the extent construction costs are
attributable to the Federal share of the cost of construction.
Section Referred to in Other Sections
This section is referred to in sections 1259, 1281, 1285, 1311,
1342, 1382 of this title.
