Sec. 202. Qualified projects
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The Administrator, acting through the Director of the Program, may carry out qualified projects in accordance with priorities set by the Administrator in accordance with this Act. In selecting qualified projects to carry out under this Act, the Administrator shall give priority to a qualified project that— addresses pollution problems that pose a potentially high level of risk to human health in the judgment of the Administrator; has been identified in the Plan and is ready to be implemented; or will use an innovative approach, technology, or technique that may provide greater environmental benefit or equivalent environmental benefit at reduced cost.
The Administrator may not carry out a project under this section if— an evaluation of alternatives for the area of concern has not been conducted, including a review of the short-term and long-term effects of the alternatives on human health and the environment; or the Administrator determines that the area of concern is likely to suffer increased contamination from existing sources of pollutants following the completion of the project. The non-Federal share of the cost of a qualified project carried out under this section shall be not less than 45 percent.
Notwithstanding paragraph (1), the Administrator may reduce the non-Federal share of the cost of a qualified project carried out under this section to not less than 35 percent based on a determination by the Administrator that a non-Federal interest is unable to pay. The determination of inability to pay shall not affect the requirements of paragraph (4). In making such a determination, the Administrator— shall consider— per capita income data for the appropriate political division or divisions in which the project is to be located; and the per capita non-Federal cost of construction of the project for the appropriate political division or divisions in which the project is to be located; and may consider additional criteria relating to the non-Federal interest’s financial ability to carry out its cost-sharing responsibilities, to the extent that the application of such criteria does not eliminate areas from eligibility for a reduction in the non-Federal share.
The non-Federal share of the cost of a qualified project carried out under this section may include the value of in-kind services contributed at any time after January 1, 2001, by a non-Federal sponsor, including any in-kind service performed under an administrative order on consent or judicial consent decree, but not including any in-kind services performed under a unilateral administrative order or court order. The non-Federal share of the cost of the operation and maintenance of a qualified project carried out under this section shall be 100 percent.
The Administrator may require the appropriate non-Federal interests to enter into such agreements as the Administrator deems necessary to ensure the proper operation and maintenance of any qualified project, and the Administrator may not carry out any qualified project for which the appropriate non-Federal interests have not demonstrated to the satisfaction of the Administrator that they possess the resources for proper operation and maintenance of the qualified project. The Administrator may not carry out a qualified project under this section unless the non-Federal sponsor enters into such agreements with the Administrator as the Administrator may require to ensure that the non-Federal sponsor will maintain its aggregate expenditures from all other sources for programs that will help achieve the goals of this Act in the area of concern in which the qualified project is located at or above the average level of such expenditures in its 2 fiscal years preceding the date on which the project is initiated.
In carrying out a qualified project under this section, the Administrator shall coordinate with the Secretary of the Interior, the Secretary of the Army, and with the Governors of States in which projects are located to ensure that Federal and State assistance for the prevention, reduction, and elimination of pollution in areas of concern is used as efficiently as possible.