Contractor listing of
violating facilities.
EPA contractor listing
protocols.
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Contractor
Listing
Protocols
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** A \
s -, | UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OFFICE Of
ENFORCEMENT AND
II II O T IrtrtT ENFORCEMENT AND
JUL °£ 7 1987 COMPllANCt MONITORING
MEMORANDUM
SUBJECT: Draft Contractor— Liair .Protocols
FROM: Gerald A. Bryan ,HT3i*e4tor
Office of Compliance Analysis and
Program Operations
TO: Regional Enforcement Contacts
Regional Counsels, Regions I-X
Enforcement Policy V?Drkgroup
Attached is a copy of the draft Protocols intended to govern
the Agency's administration of the Contractor Listing Program.
The Protocols were developed by staff of the Legal Enforcement
Policy Branch (LEPB) to assist new listing staff in meeting the
requirements of 40 CFR Part 15. The Protocols will also serve as
guidance for other EPA employees who may become involved in
processing a listing or removal action.
The current draft ot the Protocols reflects changes suggested
by the Contractor Listing Policy Work Group. The substance of
the Protocols is contained in the narrative portion (the first 25
pages) and three draft policy documents, attachments WW, XX, and
YY. The remainder of the document is devoted to presenting
models to be used as guidance when drafting the letters and memo-
randa called for in the Protocols.
I expect contractor listing to be used more extensively in
the future as a means of ensuring that the government does not
contract with facilities that are the source of continuing or
recurring violations of the Clean Air Act or Clean Water Act.
I would like you to review the attached Protocols, concentrating
your attention on the narrative portion of the document and the
three policies rather than the attachments. Please provide your
written comments by Wednesday, August 12, 1987, to Horace Sneed
of my staff, LE-130A, 475-8777, E-Mail 2261, so that your sug-
gestions can be considered before the Protocols are issued in
final form.
Attachment
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DRAFT
CONTRACTOR LIST LNG PROTOCOLS
(Draft of July 24, 1987)
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LIST OF ABBREVIATIONS
The following abbreviations are used in the Contractor
Listing Protocols.
AA Assistant Administrator for Enforcement
and Compliance Monitoring
AEC(s) Associate Enforcement Counsel for
Air or Water, or Both
CAA Clean Air Act
CE Case Examiner
CFR Code of Federal Regulations
CWA Clean Water Act
ECU—DOJ Environmental Crimes Unit of the Department
of Justice
EPA Environmental Protection Agency
GSA General Services Administration
LEPB Legal Enforcement Policy Branch
List The EPA List of Violating Facilities
LO Listing Official
NEIC National Enforcement Investigations Center
OCAPO Office of Compliance Analysis and Program
Operations
OCEC Office of Criminal Enforcement Counsel
OGC Office of General Counsel
OPA Office of Public Affairs
ORC Office of Regional Counsel
RA Regional Administrator
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CONTRACTOR LISTING PROTOCOLS*
I. INTRODUCTION
This document, the Contractor Listing Protocols, sets forth
the procedures that the Listing Official (LO), or his or her
designee, will follow in carrying out the contractor listing
regulations, 40 CFR Part 15. It addresses both listing and
removal procedures and identifies the nature of the assistance
that will be required from all EPA offices supporting the listing
effort.
The protocols are divided into five major sections. This
section, the Introduction, explains the format of the Proto-
cols and describes how to use them. Section II describes the
statutory and regulatory authorities governing the contractor
listing program. Section III contains a detailed description of
the procedures followed by the LO in processing mandatory listing
actions and discretionary recommendations to list. Similarly,
Section IV provides a detailed description of the procedures
the LO follows when processing automatic removals and requests
for removal from the EPA List of Violating Facilities (the List).
Sections III and IV also describe the essential roles of EPA
staff in the Region and at Headquarters in carrying out the
listing program. Finally, Section V sets forth the requirement
that the LO publish the List in the Federal Register.
In addition to describing in detail the procedures to be fol-
lowed when processing listing and removal actions, the Protocols
contain over 45 model letters and memoranda which can be used as
guidance when drafting the documents called for under the proto-
cols. The attachments also include the federal regulations
governing the listing program ( Attachment VV ) and four policy
documents for the listing program ( Attachments WW-ZZ) .
Although this document provides detailed procedures for pro-
cessing listing and removal actions, it does not attempt to pre-
scribe the circumstances under which listing should be used as an
enforcement tool.
* The policies and procedures established in this document are
intended solely as guidance for government personnel. They
are not intended, and cannot be relied upon, to create any
rights, substantive or procedural, enforceable by any party in
litigation with the United States. EPA reserves the right to
act at variance with these policies and procedures and to
change them at any time without public notice.
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II. BACKGROUND
The Clean Air Act (CAA), Section 306, and the Clean Water
Act (CWA), Section 508, as implemented by Executive Order 11738
and 40 CFR Part 15 (Attachment yy). authorize EPA to prohibit
facilities from obtaining federal government contracts, grants
or loans (including subcontracts, subgrants and subloans), as a
consequence of certain criminal or civil violations of the CAA
or CWA. Facilities prohibited from receiving federal contracts
under this authority are placed on the Environmental Protection
Agency's (EPA) List of Violating Facilities (the List).
Facilities owned, leased or operated by persons1, including
corporations, found guilty of certain criminal violations are
subject to automatic (i.e., mandatory) listing upon conviction.
Facilities are subject to discretionary listing as a result of
certain civil and criminal violations of the CAA or CWA after
following procedures contained in the regulations. Although CAA
and CWA violations which have been the subject of criminal or
civil enforcement actions are the basis for the listing of a
facility, listing is an administrative function which is inde-
pendent of the underlying enforcement action. ' ' '
The Contractor Listing Program provides EPA with an effec-
tive administrative tool to obtain compliance with the CAA and
CWA where previous administrative or judicial action against a
facility has failed to do so.
III. LISTING PROCEDURES
At Mandatory Listing. A facility that is the subject of a
criminal prosecution is listed automatically if it is
owned, leased or supervised by a person convicted under
§113(c)(l) of CAA or §309(c) of CWA, §15.102. The LO
follows the steps listed below to process a mandatory
listing action.
*• Maintain File of Pending Criminal Cases. The Legal
Enforcement Policy Branch (LEPB), with assistance
from the Office of Criminal Enforcement Counsel (OCEC),
Throughout this document references to "persons" are understood
to include corporations as well as natural persons.
*\
Throughout this document references to the regulations are
to 40 CFR Part 15 unless otherwise indicated. Thus 40 CFR
§15.10 will appear as §15.10.
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develops and maintains a compilation of the indictments,
informations and other charging documents that may lead
to mandatory listing of a facility.
2. Obtain Notice of Convictions . It is the responsi-
bility of OCEC to notify the LO of criminal convic-
tions, §15.13(a), and supply copies of the iriforma—
tions, indictments, or other charging documents arid
judgments of conviction to the LO. Notice of the
conviction should be sent to the LO prior to sentenc-
ing, even though the judgment of conviction may not be
filed until some time later.
3. Review the Convictions . The LO determines whether
listing is warranted under the regulations by review-
ing the documents associated with the conviction to
ensure that: (a) the conviction occurred under
§113(c)(1) of the CAA or §309(c) of the CWA, §15.10;
and (b) the facility to be listed was owned, leased
or supervised by the person convicted under §ll3(c)(1)
of the CAA or §309(c) of the CWA, §15.10.
These determinations may require the LO to review
the following documentation, obtained with the assis-
tance of OCEC: (1) documentation of the charges filed
against the defendant, as evidenced by the signed and
dated indictment, information, or other charging docu-
ment (original and as finally amended); (2) documenta-
tion of the circumstances of the conviction, as evidenced
by court-filed documents such as the signed and dated
final plea agreements, dismissals of counts, and sen-
tencing reports and memoranda; (3) documentation that
the final conviction or guilty plea has been entered
by the court; (4) documentation that the sentence has
been imposed, as evidenced by such court documents as
the signed and dated final Judgment and Commitment/Pro-
bation Order; and (5) documentation evidencing the
underlying technical data, evidence of violation or
corrective action, or other relevant information.
4. Notify Facility and Public of Listing . Once the LO
determines that a facility meets the criteria for man-
datory listing, the LO:
a. Places the facility on the List;
b. Assigns a docket number to the facility and places
the case on the lLsting docket;
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c. Notifies : the Assistant Administrator for Enforce-
ment and Compliance Monitoring (AA); the Director,
OCAPO; the Senior Enforcement Counsel—Civil;
the Senior Enforcement Counsel-Criminal; the
owner, operator or supervisor of the facility;
OCEC; the Associate Enforcement Counsel (AEC) for
Air, or Water (or both); the Regional Administrator,
Office of Regional Counsel and regional program
office; the Chief Counsel, Environmental Crimes
Unit of the Department of Justice (ECU-DOJ); the
Director, Investigative Unit, Office of Criminal
Investigations, National Enforcement Investiga-
tions Center (NEIC); the Assistant United States
Attorney in the criminal action; and the district
court clerk for the district in which the convic-
tion occurred ( Attachment A) , §15.16(a);
d. Publishes a notice in the Federal Register ( Attach-
ment B) , §15.16(c);
e. Notifies the General Services Administration (GSA)
that the facility is to be added to GSASs Consol-
idated List of Debarred, Suspended, and Ineligible
Contractors ( Attachment C) ;
f. Notifies all federal agencies with major assistance
responsibilities, identified on the Assistance
Agencies List ( Attachment D) , that the facility
is ineligible for assistance programs ( Attach-
ment E) ; and
g. Provides the EPA Office of Public Affairs (OPA)
with the information necessary to prepare a press
release or press advisory 3 ( Attachment F) .
B. Discretionary Listing . The discretionary listing process
begins with the filing of a recommendation to list. A
facility will be listed under the discretionary listing
process if it is determined that the facility has a
record of continuing or recurring noncompliance with
clean air or clean water standards despite a previous
enforcement action against the facility.
Use of Press Releases . The LO works with the regional press
office and EPA Office of Public Affairs to see that press
releases concerning listing actions are issued, as appropriate,
to the national press, local media in the area where the viola-
tions occurred, and the trade press of the affected industry.
(See Attachment ZZ, §vi.)
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A recommendation to list may be submitted by a "rec-
ommending person," defined in §15.4 as the "Regional
Administrator, the Associate Enforcement Counsel for Air
or the Associate Enforcement Counsel for Water or their
successors, the Assistant Administrator for Air and
Radiation or the Assistant Administrator for Water or
their successors, a Governor, or a member of the public."
The Regions will have primary responsibility for selecting
cases for EPA-initiated listing actions. The Associate
Enforcement Counsels for Air and Water (AEC(s)) and the
Assistant Administrators for Air and Water will rarely
initiate listing recommendations.
Each recommendation to list will be processed by a
team composed of representatives from the Office of
Regional Counsel, the regional program office, the Associ-
ate Enforcement Counsel (AEC) for Air or Water or both,
and the LO. The regional representatives to the team
will act as advocates for the Region's position on the
recommendation to list. The representative(s) of the
AEC(s) will act as counsel to both the Region and the LO.
The adjudicative function will be represented by the LO's
designee to the team. Each team member will be responsi-
ble for ensuring that his or her office completes its
assignments under the Protocols in a timely fashion and
that all necessary reviews by policy level officials
within his or her office are obtained.
Under the regulations, a recommending person may
withdraw a recommendation to list at any time before the
conclusion of the listing proceeding. A recommending
person is obligated to withdraw the recommendation to
list if he or she determines that the conditions which gave
rise to the recommendation to list have been corrected or
the facility is on an EPA-approved plan for compliance
which will ensure that the conditions that gave rise to
the recommendation to list will be corrected, §15.11(d)
(see also paragraph III.B.7, page 12). Thus, as a practi-
cal matter, if the facility fully corrects the condition
which is the basis for the listing action and the recom-
mending person withdraws the recommendation to list, the
listing process is terminated. The steps for processing a
discretionary listing action are set forth below.
!• LO Receives Recommendation to List. The discretionary
listing process begins when the LO receives a recom-
mendation to list, §15.ll(b). It is anticipated that
most recommendations will be prepared by the Regions
and they will have lead responsibility for preparing
EPA-initiated recommendations. The November 26, 1986,
Guidance on Implementing the Discretionary Contractor
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Listing Program ( Attachment ZZ ) includes model discre-
tionary listing recommendations based on both adminis-
trative and judicial enforcement actions. The Regions
will also act as the Agency’s primary contact for pro-
cessing State or citizen initiated listing recommendations.
2. Review Recommendation . As soon as a recommendation
to list is received, the LcD transmits a copy to the
appropriate AEC(s), Regional Administrator (RA),
Office of Regional Counsel (ORC), and regional program
office to review and submit comments on the recommen-
dation to the LO within 10 days ( Attachment G) .
During the same period, the LO reviews the recom-
mendation to list, §15.11(c), to ensure that it
contains: (a) the name, address and telephone number
of the person filing the recommendation, §15.1l(b)(1);
(b) a description of the facility, including its name
and address, §l5.li(b)(2) 7 Cc) a description of the
alleged continuing or recurring noncompliance and
supporting data, §15.ll(b)(3); and (d) a description
of the criminal, civil or administrative action or
conviction which is pertinent to the facility and the
alleged continuing or recurring violations, §l5.ii(b)(4).
If, after reviewing the recommendation to list
and the comments on the recommendation to list, the
LcD determines that additional documentation is needed,
the LcD returns the recommendation to the recommending
person identifying in writing the specific information
required ( Attachment H) . Resubmitted recommendations
must be processed according to the procedures for
processing an original recommendation as set forth in
paragraph III.B.
3. LO Briefs AA on Listing Recommendation . When the LO
is satisfied that the recommendation to list meets the
requirements of the regulations, the LO does the
following:
a. The LO Dockets the Case . The LO assigns a docket
number to the facility and places the case on the
listing docket.
b. The LO Prepares a Briefing Memorandum . The LO
prepares a briefing memorandum ( Attachment H—i )
and transmits it to the AA. The briefing inemoran—
dum should: (i) summarize the status of the list-
ing recommendation; (ii) advise the hA whether
the recommendation to list should be declined at
this point based on the comments received from
the Region and the AEC(s); and (iii) offer the AA
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the opportunity to have an oral briefing on the
listing recommendation. If an oral briefing is
requested, the LO schedules the briefing and
arranges for representatives of the AEC(s) and
OCAPO to be present. At the briefing, staff will
advise the AA of the basis for the recommendation
to list.
4. AA Declines to List . If, after being briefed on the
listing recommendation, the AA decides to decline the
recommendation to list, the LO does the following:
a. The LO Prepares a Statement of Reasons . The LO
prepares a brief statement ( Attachment H—2 ) for
the AA’s signature explaining the reasons for the
decision not to proceed with the listing action.
This statement will be included in the record of
the listing action.
b. The LO Submits the Statement for Headquarters
Review . The LO submits the draft statement for
review by (1) the AEC(s) for Air, Water or both;
(2) the Director, OCAPO; and (3) the Senior
Enforcement Counsel-Civil arid, to prevent con-
flict with potential criminal actions, the Senior
Enforcement Counsel—Criminal.
c. The LO Transmits the Statement to the AA to Sign.
At the conclusion of the review by appropriate
headquarters staff, the LO transmits the statement
to the AA for his signature.
d. The LO Notifies Owner . Once the AA has signed the
draft statement of reasons, the LO notifies the
owner, operator or supervisor of the facility that
a recommendation to list the facility has been
filed ( Attachment H—2 ) and encloses a copy of the
recommendation to list and the statement of the
reasons for not proceeding with the recommendation
to list ( Attachment H—3 ) with the notice letter.
The LO also sends a copy of the notice letter and
enclosures to recommending person.
5. Notify Facility of Proposed Listing and Prepare Draft
Determination . After the LO has briefed the AA on the
recommendation to list and the AA has not declined to
proceed with the recommendation to list, the LO does
the following:
a. The LO Notifies Owner . The LO notifies the owner,
operator or supervisor of the facility that a
recommendation to list the facility has been
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filed and encloses a copy of the recommendation
to list with the notice letter. The notice will
also advise the owner, operator or supervisor that
he or she may request a listing proceeding before
a Case Examiner (CE) to determine the propriety
of the proposed listing ( Attachment J) , §15.12(a).
A copy of this notice is sent to the Listing Case
Team and the recommending person.
b. The LO Transmits the Recommendation to the Region.
The LO prepares a transmittal memorandum (Attach-
ment K) , and transmits the recommendation to list
and the staff comments to the regional office
requesting that the regional office prepare and
return to the LO within 15 days a detailed summary
of the documentation regarding the recommendation
to list ( Attachment L) . When the summary of
documentation is sent to the LO, the Regional
Administrator or Deputy Regional Administrator
must acknowledge in writing that he or she has re-
viewed the recommendation to list and has included
any comments on it with the recommendation.
c. The LO Drafts the Determination . Upon receipt of
the recommendation to list and summary of documen-
tation regarding the recommendation to list from
the Region, the LO drafts a determination’ for the
AA’s signature ( Attachment MY , and revises the
summary of documentation ( Attachment L ) to include
any materials available at Headquarters.
d. The LO Submits the Draft Determination for
Headquarters Review and Comment . Once the draft
determination to list has been prepared, the LO
acknowledges that he or she has reviewed the
draft determination. The draft determination
( Attachment M ) is then transmitted for review and
comment, along with the summary of documentation
( Attachment L) , to: (1.) the AEC(s) for Air, Water
or both; (2) the Director, OCAPO; and (3) the
Senior Enforcement Counsel-Civil and the Senior
Enforcement Counsel-Criminal.
6. Final Agency Action Taken on the Recommendation
to List . After the LO has notified the facility that
a recommendation to list has been filed and forwarded
to the AA for decision, final Agency action on, the
recommendation to list will occur as a result of one
of the following processes.
a. AA Decides (Listing Proceeding Not Held) . At any
point before a listing proceeding is held, the AA
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may, in his or her discretion, decline to list the
facility, §15.11(c). If a facility does not
request a listing proceeding within 30 days of
receiving notice that a recommendation to list
has been filed, the determination of the AA on
the recommendation to list is final Agency action,
§15.12(d).
After all of the EPA personnel identified in
paragraph Ill.S.e have reviewed the draft deter-
mination and commented on it, the LO prepares a
transmittal memorandum (Attachment N), and sends
the draft determination (Attachment M) plus any
comments, and the summary of supporting documen-
tation (Attachment L) to the AA. If a briefing is
requested, the LO schedules the briefing, arranges
for representatives of the AEC(s) and OCAPO to be
present, and prepares a one-page briefing memorandum
(Attachment O) that summarizes: (i) the history of
the case;fTI) the status of the case; (iii) the
reasons for the recommended determination, and
(iv) special problems or considerations. Based
on the decision of the AA, the LO does the follow-
ing:
(1) AA Decides to List. If the AA decides to
list, the LO follows the steps set forth
in the Listing Official's Discretionary
Listing Checklist found in Table One on page 26.
(2) AA Declines to List. If the AA decides
not to list, the LO notifies the recommend-
ing person, the owner, operator or supervisor
of the facility, the AEC(s) and the RA, ORC
and regional program office that the recom-
mendation to list has been declined (Attach-
ment R). The AA's decision not to list is
final Agency action on the listing recommenda-
tion.
Listing Proceeding Requested. If the owner,
operator or supervisor of the facility requests
a listing proceeding within 30 days of receiving
notice that a recommendation to list has been
filed, the LO does the following:
(1) LO Obtains Case Examiner. The LO obtains a
Case Examiner for the listing proceeding
(Attachment S), §15.12(a). The Case Exami-
ner may be any EPA employee who has subject-
matter expertise and who is not involved in
the underlying enforcement action or listing
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action. The LO will consult with the AEC(s)
to determine an appropriate person to act
as Case Examiner.
(2) LO Schedules Listing Proceeding . The LO
schedules the listing proceeding and noti-
fies the recommending person, the owner,
operator or supervisor of the facility, the
Case Examiner, and the Listing Case Team
(see paragraph §III.B above) of the date,
time and place of the listing proceeding
( Attachment T) , §15.12(b). That notice
letter also informs all parties of their
obligation to provide all other parties
any papers which they intend to submit at
the listing proceeding at least 7 days
prior to the listing proceeding.
It is the responsibility of the LO to
attempt to arrange the timing and location
of the listing proceeding so that it is
convenient for all parties to attend. The
LO determines whether the listing proceeding
should be adjourned for good cause shown.
(3) LO Obtains Court Reporter . The LO retains
the services of a court reporter, §15.13(b)(2),
paid for by EPA.
(4) Listing Proceeding Held . The listing
proceeding is conducted in accordance with
§15.13(b). Regardless of who files the
recommendation to list, EPA will be repre-
sented at the listing proceeding by the EPA
regional or Headquarters attorney responsi-
ble for the underlying enforcement action.
(5) LO Obtains Decision of CE . The Case Ex-
aminer issues his or her written decision
on whether to list the facility and files
it with the LO within 30 days of the con-
clusion of the listing proceeding, and any
supplementation of record allowed by the
Case Examiner, §15.13(c).
c. LO Sends Notice of CE’s Decision and Opportunity
for OGC Review . After the CE files his or her
decision with the LO, the LO is responsible for
notifying the appropriate parties of the CE’s
decision as follows:
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(1) CE Decides to List . The LO notifies the
owner, operator or supervisor of the facility,
the recommending person, the AEC(s), and
the RA, ORC, and the regional program office,
and the Director, OCAPQ of the CE’s decision
to list the facility and of the facility’s
opportunity to have OGC review that decision
if such review is requested within 30 days
( Attachment U) , §15.13(d).
(2) CE Decides Not to List . The LO notifies the
owner, operator or supervisor of the facility,
the RA, ORC, and the regional program office,
and the Director, OCAPO of the Case Examiner’s
decision denying the recommendation to list
the facility. The Case Examiner’s decision
not to list is final Agency action on the
recommendation to list ( Attachment U) ,
§15.14(d).
d. OGC Review Not Requested . If the CE decides to
list the facility, the facility may request that
OGC review the CE’s decision. The request for
review must be made in writing and must be re-
ceived by the LO within 30 days of the date on
which notice of the CE’s decision was received by
the facility.
If the LO does not receive a timely written
request for 0CC review, then the CE’s decision
granting the recommending to list stands as final
Agency action, §15.14(d), and the LO follows the
steps set forth in the Listing Official’s Discre-
tionary Listing Checklist found in Table One on
page 26.
e. OGC Review Requested . If the facility files a
timely request with the LO for OGC review, the
LO does the following:
(1) The LO Transmits the Request for Comments.
The LO transmits a copy of the request to
the recommending person and AEC(s) asking them
to prepare and return to the LO within 7
days their comments on the request for OGC
review ( Attachment V) ;
(2) ORC Drafts Agency Response . After the time
for filing comments has passed, the LO
transmits the responses to ORC asking that
office to prepare the Agency’s response to the
request for OGC review and submit it to the
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LO within 7 days ( Attachment W) . Generally,
the attorney who represented EPA at the
listing proceeding should prepare EPA’s
response to the request for OGC review.
(3) LO Transmits Request to OGC . When the LO
receives the Agency’s response to the request
for OGC review, the LO transmits to OGC;
(1) the Case Examiner’s decision; (ii) the
request for review; (iii) the Agency’s
response to the request for review; (iv) the
comments of the AEC(s) and recommending person;
and (v) the transcript of the listing proceed-
ing ( Attachment X) .
(4) OGC Reviews CE’s Decision . OGC reviews the
Case Examiner’s decision based on the record
of the listing proceeding considered as a
whole, and issues a final decision within 30
days or as soon as practicable, §15.14(c).
f. The LO Obtains OGC’s Decision . When OGC files
its decision with the LO, it becomes final Agency
action on the recommendation to list, §15.14(c).
The LO then does the following:
(1) OGC Affirms the Case Examiner . If OGC affirms
the Case Examiner’s decision to list, listing
is effective when OGC’s decision is filed
with the LO. The LO follows the steps in
the Listing Official’s Discretionary Listing
Checklist found in Table One on page 26.
(2) OGC Reverses the Case Examiner . If OGC
reverses the Case Examiner, the LO notifies
the owner, operator, or supervisor of the
facility, the recommending person, the AA,
the Director, OCAPO, the AEC(s) and the RA,
ORC and regional program office that the
recommendation to list has been denied on
the basis of OGC’s decision on review ( Attach-
ment Y) .
7. Withdrawal of a Recommendation to List . The recom-
mending person may withdraw his or her recommendation
to list under the following circumstances:
a. Prior to the Conclusion of the Listing Proceeding .
At any time before the Case Examiner (CE) issues
his or her written decision concluding the listing
proceeding, the recommending person may withdraw
the recommendation to list for any reason. How-
ever, a request to withdraw the recommendation to
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list must be made in writing and must state the
reason for withdrawing the request. A recommend-
ing person must withdraw a recommendation to list
if the facility has corrected the condition which
gave rise to the recommendation to list, §15.11(d).
b. After the Conclusion of the Listing Proceeding.
After the Case Examiner (CE) has issued his or
her decision at the conclusion of the listing
proceeding, a recommendation to list may only be
withdrawn if the recommending person determines
that the facility has corrected the condition
which gave rise to the recommendation to list,
§15.11(d). The request to withdraw the recom-
mendation to list must be made in writing and
must state the reason for withdrawing the re-
quest. A recommending person must withdraw a
recommendation to list if the facility has cor-
rected the condition which gave rise to the recom-
mendation to list, §15.11(d).
S. Stays of a Discretionary Listing Action . A stay of a
discretionary listing action will be granted under
the following circumstances:
a. Prior to the Listing Proceeding . The LO may grant
a stay of the discretionary listing action (1) for
a period not to exceed 60 days, (2) upon timely
notice, (3) for good cause shown, (4) on the
record, and (5) after consideration of the prej-
udice to the parties or the proceeding.
b. During the Listing Proceeding . The Case Examiner
may grant a stay of the listing proceeding for a
period not to exceed 60 days to permit any party
to obtain evidence or for any other reason that
will advance the proceedings giving due considera-
tion to any prejudice to the parties.
c. After the Listing Proceeding . The LO may grant a
stay of the discretionary listing action (1) for
a period not to exceed 60 days, (2) upon timely
notice, (3) for good cause shown, (4) on the
record, and (5) after consideration of the preju-
dice to the parties. Any stay shall not extend
the time in which a party must request EPA General
Counsel review of a Case Examiner’s decision in
a listing proceeding.
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IV. PROCEDURES FOR REMOVAL FROM THE LIST
A facility may be removed from the List in one of four ways.
A facility may be removed automatically if the Conviction which
was the basis for mandatory listing or the decision in the under-
lying enforcement action that was the basis for discretionary
listing is reversed, or after one—year on the List in some dis-
cretionary listing cases. A facility may also be removed from the
List following final Agency action as a result of: a favorable
decision by the AA on the facility’s request for removal; a
favorable decision by a CE following the AA’s denial of the
request to remove the facility from the List; or a favorable
decision by the Administrator if the CE denies the removal request.
Requests for removal will be processed by a removal case
team composed of staff representatives of the AEC(s), the ORC,
the regional program office and the LO. The regional repre-
sentatives to the team will act as advocates for the Region’s
position on the removal request. The representative(s) of the
AEC(s) will act as counsel to both the Region and the LO. The
adjudicative function will be represented by the LO’s designee to
the team. Each team member will be responsible for ensuring that
his or her office completes its assignments under the Protocols
in a timely fashion and that all necessary reviews and acknowledge-
ments from policy level officials within his or her office are
obtained.
A. Automatic Removal
1. Mandatory Listing
a. Reversal of Conviction . The owner, operator or
supervisor of the facility is responsible for
informing the LO if any criminal Conviction which
resulted in listing is overturned and must provide
a certified copy of the judicial order reversing
the conviction.
Upon receipt of that order and confirmation
that a legal basis for mandatory listing no
longer exists, the LO follows the steps set forth
in the Listing Official’s Removal Checklist found
in Table Two on page 27. If there is a dispute
concerning the effect of a court order purportedly
reversing a conviction, the dispute shall be re-
solved by processing the request as a request for
removal based on correcting the condition that
gave rise to listing. The procedures set forth
at paragraph IV.B.4 (page 18) are used in process-
ing that request.
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2. Discretionary Listing
a. Reversal of Underlying Order . The owner, operator
or supervisor of the facility is responsible for
informing the LO if any order which was the basis
for a determination to list has been reversed and
must provide a certified copy of the document
evidencing the reversal of the prior order.
Upon confirmation that a legal basis for
discretionary listing no longer exists, the LO
follows the steps set forth in the Listing Offi-
cial’s Removal Checklist found in Table Two on
page 27. If there is a dispute concerning the
effect of an order purportedly reversing a prior
order which was the sole basis for a discretionary
listing determination, the dispute shall be
resolved by processing the request as a request for
removal based on correcting the condition that
gave rise to listing. The procedures set forth
at paragraph IV.B.4 (page 18) are used in pro-
cessing that request.
b. Expiration of One Year . A facility listed under
§ l5.ll(a)(4), (a)(5), or (a)(6), is eligible to
be removed from the List after one year, unless ,
within that one year period, the LO is informed
that: (1) a basis for mandatory listing exists as
a result of the conviction of the owner, operator
or supervisor of the facility for a violation of
§l].3(c)(l) of the CAA or §309(c) of the CWA; or
(2) a basis for discretionary listing exists as a
result of the facility’s continuing or recurring
noncompliance with clean air or clean water standards
and: (a) a federal court has convicted any person
who owns, operates or supervises the facility of
a violation of §1l3(c)(2) of the CAA, §l5.ll(a)(]j;
or (b) a state or local court has convicted any
person who owns, operates or supervises the
facility of a criminal offense on the basis of
noncompliance with clean air or clean water
standards, §15.l].(a)(2); or (c) a federal, state,
or local court has issued an order or civil
ruling as a result of noncompliance with clean
air or clean water standards, §l5.1l(a)(3).
If, after a facility has remained on the
List for one year, the LO determines that the
facility is entitled to removal from the List,
the LO follows the steps set forth in the
Listing Official’s Removal Checklist found in
Table Two on page 27.
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B. Requests for Removal . Regardless of the underlying basis
for removal and regardless of whether listing was the re—
suit of the mandatory or discretionary listing process,
the removal process can be initiated by filing a request
for removal with the LO. The original recommending person
or any person who owns, operates or supervises a listed
facility may file a request for removal with the LO,
§15.22(a).
45—DAY PERIOD . As soon as the request is received,
the LO: Ci) notes on the listing docket the date on which
the request for removal was filed; (ii) reviews the request
j to determine the basis upon which removal is sought; and
(iii) sends a letter to the person requesting removal that
acknowledges receipt of the request and notifies him or her
that the failure of EPA to respond to the request for
removal within 45 days of the date of the notice letter
constitutes a denial of the request for removal at which
point a removal hearing before a Case Examiner may be
requested ( Attachment AA) . The Agency’s goal is to process
each request for removal before this 45—day period expires.
1. Reversal of Underlying Court Order . If the request
for removal is founded on the reversal of the court
order which was the basis for listing, then the LO
follows the procedures in paragraphs IV.A.l (page 14)
or IV.A.2.a (page 15) above.
2. Expiration of One Year (Discretionary Listing Only) .
If the request for removal is founded on the expira-
tion of one year in a discretionary listing case
under § 15.11(a)(4), (a)(5) or (a)(6), then the LO
follows the procedures in paragraphs IV.A.2.b (page
15) above.
3. Plan for Compliance (Discretionary Listing Only) . If
the request for removal is founded on the facility’s
establishing a plan for compliance which is acceptable
to the AA, then the LO follows the procedures described
below.
[ Day 1—103 a. Requests Filed by the Regional Office . If the
request for removal was filed by the regional of-
fice, the LO transmits the request to the AEC(s),
the owner, operator or supervisor of the listed
facility, and the original recommending person in
the discretionary listing case, asking them to sub-
mit their comments on the request for removal and
plan for compliance to the LO within 10 days
( Attachment BB) .
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—17—
[ Day 1—10] b. Requests Filed by Others . If the request for
removal was filed by some person other than the
staff of an EPA regional office, the LO transmits
a copy of the request for removal to the AEC(s),
the PA, ORC and regional program office, the
owner, operator or supervisor of the listed
facility, and the original recommending person in
the discretionary listing case, asking them to
submit their comments on the request for removal
and plan for compliance to the LO within 10 days
( Attachment BB) .
[ Day 11—25] C. Regional Office Prepares Formal Recommendation .
At the end of 10 calendar days, the LO reviews
all comments that have been received, forwards
copies of them to the regional office in which
the listed facility is located and asks the
regional office to prepare and return to the LO
within 15 days ( Attachment CC) :
(1) a formal recommendation based on the regional
office’s assessment of whether the request
for removal should be granted or denied in
light of the facility’s proposed plan for
compliance ( Attachment DD) ;
(2) a memorandum summarizing the supporting docu-
mentation for the formal recommendation
( Attachment EE) ; and
(3) the written acknowledgement of the Regional
Administrator or Deputy Regional Administra-
tor indicating that he or she has reviewed the
formal recommendation and submitted any com-
ments on it to the LO.
[ Day 26-38] d. LO Drafts Determination . At the end of the
15-day period, the LO receives the Region’s formal
recommendation on the request for removal and
plan for compliance ( Attachment DD) , and the
summary of supporting documentation ( Attach-
ment_EE), confirms that the recommendation has
been reviewed by the Regional Administrator or
Deputy Regional Administrator, and drafts a
determination for the AA’s signature ( Attach-
ment FF) .
[ Day 38-42J e. Headquarters Review and Comment . After the draft
determination has been prepared ( Attachment FF) ,
the LO sends it for review and comment, along
with the summary of supporting documentation
( Attachment EE) , to: (1) the Associate Enforcement
Counsel (AEC) for Air or Water or both; (2) the
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Director, OCAPO; and (3) the Senior Enforcement
Counsel—Civil, or the Senior Enforcement Counsel—
Criminal, or both. Each office must acknowledge
that it has reviewed the document and made any
necessary comments before returning the draft
determination to the LO.
[ Day 43—45] f. Decision by AA . After the appropriate offices
have reviewed the draft determination, the LO
makes any necessary changes and indicates that he
or she has reviewed and commented on the document.
The LO then prepares a transmittal memorandum
( Attachment GG ) and sends the recommended deter-
mination and summary of supporting documentation
( Attachments FF & EE) , to the AA for his or her
decision .
If a briefing is requested, the LO schedules
it, arranges for representatives of the AEC(s)
and OCAPO to be present, and prepares a one-page
briefing memorandum that summarizes; (i) the
history of the case; (ii) the status of the case;
(iii) the reasons for the recommended determination;
and (iv) special problems or considerations
( Attachment 1*1) .
(1) AA Grants Removal Based on Plan for Com-
pliance . If the AA approves the plan for
compliance, the LO follows the steps set
forth in the Listing Official’s Removal
Checklist found in Table Two on page 27.
(2) AA Denies Removal . If the AA does not
approve the plan for compliance and denies
the request for removal, the LO notifies the
owner, operator or supervisor of the facility,
the recommending person, AEC(s) and RA, ORC
and regional program office, the Director,
OCAPO, and the Senior Enforcement Coun-
sel—Civil and Senior Enforcement Counsel—
Criminal, that the request for removal has
been denied and notifies the facility of the
opportunity to request, within 30 days, a
hearing before a Case Examiner ( Attach-
ment JJ) , § l5.22(c) and 15.23(a).
4. The Condition Giving Rise to Listing Has Been Corrected .
If the request for removal is based on the facility hav-
ing corrected the condition that gave rise to listing,
the LO follows the procedures described below.
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[ Day 1—10] a. Requests Filed by the Regional Office . If the
request for removal was filed by the regional
office, the LO transmits the request to the
AEC(s), the owner, operator or supervisor of the
listed facility, and the original recommending
person in discretionary listing cases, asking them
to submit their comments on the request for
removal to the LO within 10 days ( Attachment KK) .
[ Day 1—10] b. Requests Filed by Others . If the request for
removal was filed by some person other than EPA
regional office staff, the LO transmits a copy of
the request for removal to the AEC(s), the RA,
ORC and regional program office, the owner, oper-
ator or supervisor of the listed facility, and
the original recommending person in discretionary
listing cases, asking them to submit their comments
on the request for removal to the LO within 10
days ( Attachment KK) .
[ Day 11-25] c. Region Prepares Formal Recommendation . At the
end of 10 calendar days, the LO reviews all com-
ments that have been received, forwards copies of
them to the RA, ORC and program office for the
Region in which the listed facility is located and
asks the regional office to prepare and return to
the LO within 15 days ( Attachment CC) :
(1) A formal recommendation ( Attachment DD) ,
based on the regional office’s assessment of
whether the request for removal should be
granted or denied under the policy defining
what constitutes correcting the condition
giving rise to listing ( Attachment WW) . The
formal recommendation must contain: (i) a
background section that summarizes the his-
tory and proposed resolution of the case;
(ii) specific factual findings covering all
major events in the case and technical tests
that support the determination from the date
of the original violation to the present
time, and all expected events and test re-
sults, including any enyironmental cleanup
under a compliance plan approved by EPA (any
consent decree, probation order, administra-
tive order, performance guarantee, or permit
evidencing the compliance schedule should be
attached to the recommendation); and (iii) a
conclusion setting forth the recommendation.
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(2) A document summarizing the supporting docu-
mentation for the recommendation ( Attach-
ment EE) . The summary of supporting docu-
mentation must: (i) identify the source of
all information available for making the
determination; (ii) identify all inspections
made and state whether they satisfy the pol-
icy on independent verification ( Attach-
ment XX) ; (iii) identify, in accordance with
the policy defining condition, the specific
condition that gave rise to listing ( Attach-
ment YY ) and the manner in which the condi-
tion has been or is being corrected;
(iv) describe the status of the facility’s
efforts to correct the condition; and (v)
ensure that any comments by state or local
authorities are reflected; and
(3) The acknowledgement of the Regional Admini-
strator or Deputy Regional Administrator that
he or she has reviewed the formal recommenda-
tion and summary of documentation and made
any necessary comments.
[ Day 26-38] d. LO Drafts Determination . At the end of 15 days,
the LO receives the formal recommendation on the
request for removal ( Attachment DD ) and the
summary of supporting documentation ( Attach-
ment EE) , confirms that the recommendation has been
reviewed by the Regional Administrator or Deputy
Regional Administrator, notes on the summary of
supporting documentation any materials available
at Headquarters, and prepares a draft determina-
tion for the AA’s signature.
[ Day 39-42] e. Headquarters Review . Once the draft determina-
tion ( Attachment FF ) has been prepared, it is
transmitted, along with the summary of support-
ing documentation ( Attachment EE) , for review
and comment to: (1) the Associate Enforcement
Counsel (AEC) for Air, Water or both; (2) the
Director, OCAPO; and (3) the Senior Enforcement
Counsel—Civil and Senior Enforcement Counsel-Crim-
inal. After each of these individuals has
acknowledged reviewing and commenting on the
draft determination and summary of supporting
documentation, those documents are returned to
the LO to make any revisions the LO deems
necessary.
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[ Day 42-45] e. Decision by AA . After the appropriate Headquar-
ters staff have reviewed and commented on the
draft determintion, and any necessary revisions
have been made, the LO prepares a transmittal
memorandum ( Attachment GG) , and sends the draft
determination ( Attachment FF) , and the summary of
supporting documentation ( Attachment EE) , to the
AA for his or her decision.
If a briefing is requested, the LO schedules
the briefing, arranges for representatives of the
AEC(s) and OCAPO to be present, and prepares a
one—page briefing memorandum that summarizes:
(i) the history of the case; (ii) the status of
the case; (iii) the reasons for the recommended
determination; and (iv) problems or special
considerations ( Attachment HH) .
(1) AA Grants Removal . If the AA approves the
request for removal, the LO follows the
steps set forth in the Listing Officials s
Removal Checklist found in Table Two on page
28.
(2) AA Denies Removal . If the AA denies the
request for removal, the LO notifies the
owner, operator or supervisor of the facility,
recommending person, AEC(s) and RA, ORC and
regional program office, the Director, OCAPO,
and the Senior Enforcement Counsel-Civil and
Senior Enforcement Counsel-Criminal, that
the request for removal has been denied.
The LO also notifies the facility of the
opportunity to request, within 30 days, a
hearing before a CE ( Attachment JJ) , § l5.22(c)
and 15.23(a).
5. Removal Hearing . The owner, operator or supervisor
of a listed facility, or the original recommending
person in the case of a facility listed under the
discretionary listing process, may file with the La,
within 30 calendar days after the decision of the AA
denying removal, a written request for a removal hear-
ing, §15.23(a).
a. Removal Hearing Not Requested . If the LO does
not receive a request for a removal hearing with-
in 30 calendar days after the decision of the AA,
the LO notifies: the owner, operator, or supervisor
of the facility; the original recommending person;
the AA; the Director, OCAPO; the AEC(s); and the
RA, ORC and regional program office that the
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decision of the ? is final Agency action on the
request for removal and that any person who may
make a request for removal may file a new request
for removal based on new information ( Attach-
ment LL) , §15.23(b).
b. Removal Hearing Requested . If the LO receives a
request for a removal hearing within 30 days
after the decision of the AA, the LO does
the following:
(1) LO Obtains Case Examiner . The LO obtains a
Case Examiner for the removal hearing
( Attachment MM) , §15.24. The Case Examiner
may be any EPA employee who has subject-matter
expertise and who was not involved in the
underlying enforcement action or listing
action (except that the Case Examiner
who served in the listing proceeding involv-
ing the facility may serve as Case Examiner
in the removal hearing). The LO will
consult with the AEC(s) to determine an
appropriate person to act as Case Examiner.
(2) LO Schedules Removal Hearing . The LO sched-
ules the removal hearing and notifies the
owner, operator or supervisor of the facil-
ity, the original recommending person, the
federal, state or local authority responsi-
ble for enforcement of clean air or clean
water standards, the Case Examiner, and the
removal case team (see §iv, page 14) of the
date, time and place of the removal hearing
( Attachment NN) .
That notice letter also informs all
parties of their obligation to serve on all
other parties copies of all documents which
they intend to submit at the removal hearing
at least one week prior to the removal hear-
ing. It is the responsibility of the LO to
attempt to arrange the timing and location of
the listing proceeding so that it is conven-
ient for all parties to attend.
(3) LO Obtains Court Reporter . The LO retains
the services of a court reporter, §15.24(a)(2),
paid for by EPA.
(4) Removal Hearing Held . The removal hearing
is conducted in accordance with § 15.24(a—c).
EPA will be represented at the removal
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hearing by the EPA regional or Headquarters
attorney responsible for the underlying
enforcement action.
(5) LO Obtains Decision of CE . The Case Examiner
issues his or her written decision on whether
to grant the request for removal and files
it with the LO as soon as practicable with a
target of filing the decision no later than
30 days after the conclusion of the removal
hearing, and any supplementation of the
record allowed by the Case Examiner, §15.24(c).
C. LO Sends Notice of CE’s Decision . The LO is
responsible for sending written notice of the
Case Examiner’s decision to the owner, operator,
or supervisor of the facility, the original
recommending person, the AEC(s), the RA, ORC and
regional program office and the federal, state or
local authority responsible for enforcement of
clean air or clean water standards.
(1) If the Case Examiner grants removal, the
LO shall follow the steps set forth in
the Listing Official’s Removal Checklist
found in Table Two on page 27.
(2) If the Case Examiner denies removal, the
LO notifies the owner, operator or super-
visor of the facility, the original
recommending person, the AEC(s), the RA,
ORC and regional program office and the
federal, state or local authority respon-.
sible for the enforcement of clean air
or clean water standards of the decision
and advises the facility of the opportunity
to request the Administrator to review the
Case Examiner’s decision ( Attachment 00) ,
§15.24(d), if a written request for such
review is filed with the LO within 30 days
after the date of the Case Examiner’s
decision, §15.25(a).
d. Administrator’s Review Not Requested . If the LO
does not receive a written request for review
within 30 days after the date of the Case Examiner’s
decision, the LO sends a notice to the owner,
operator, or supervisor of the facility, the
original recommending person, the Senior Enforce-
ment Counsel—Civil and Senior Enforcement
Counsel-Criminal, the Director, OCAPO, the AEC(s),
the RA, ORC and regional program office,
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and the federal, state or local authority responsi-
ble for the enforcement of clean air or clean water
standards, informing them that the Case Examiner’s
decision stands as final Agency action on the
request for removal, §15.25(c), and that any
person who may file a request for removal may
file a new request for removal based on new
information ( Attachment PP) .
e. Administrator’s Review Requested . If the LO
receives a timely written request to have the
decision of the Case Examiner reviewed by the
Administrator:
(1) The LO Transmits the Request for Comments .
The LO transmits a copy of the request to:
the original recommending person; the AEC(s),
the ORC and regional program office; and
federal, state, or local authority with
responsibility for the enforcement of clean
air or clean water standards, inviting them
to review and comment on the request within
7 days ( Attachment 00) .
(2) ORC Drafts Agency Response . After the time
for filing comments has passed, the LO
transmits the responses to ORC asking that
office to prepare the Agency’s response to the
request to have the Administrator review
the Case Examiner’s decision. The response
must be submitted to the LO within 7 days
( Attachment RR) . Generally, the attorney who
represented EPA at the removal hearing
should prepare EPA’s response to the request
for OGC review.
(3) LO Transmits Request to the Administrator .
After the Agency’s response has been re-
ceived, the LO transmits to the Administrator:
(i) the Case Examiner’s decision; (ii) the
request for review; (iii) the response to the
request for review; (iv) the comments received;
and (v) the transcript of the removal hearing
( Attachment SS) .
(4) The Administrator Reviews the CE’s Decision .
The Administrator reviews the Case Examiner’s
decision based on the record of the removal
hearing considered as a whole, and issues a
final decision as soon as practicable ,
§15.25(b). The Administrator’s decision is
final Agency action, §15.25(b).
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f. The LO Obtains the Administrator’s Decision . The
Administrator files his decision with the LO
following review of the Case Examiner’s decision.
Once filed with the LO, the Administrator’s
decision is final Agency action on the request
for removal and the LO does the following:
(1) If the Administrator affirms the Case Exami-
ner’s decision denying removal, the LO
notifies the owner, operator, or supervisor
of the facility, the original recommending
person, the AEC(s), the PA, ORC and regional
program office, and the federal, state or
local authority responsible for the enforce-
ment of clean air or clean water standards, that
the Administrator’s decision affirming the
Case Examiner stands as final Agency action
denying the request for removal, §15.25(b),
and that any person who may file a request
for removal may file a new request for removal
based on new information ( Attachment TT) ,
§15.25(d).
(2) If the Administrator reverses the Case
Examiner and grants the request for removal,
the LO follows the steps set forth in the
Listing Official’s Removal Checklist found
in Table Two on page 27.
IV. DISTRIBUTION OF THE LIST .
On or about February 1 and August 1 of each year, the LO
publishes an updated List in the Federal Register ( Attachment UU) ,
§ 15.40.
Attachments (I)
NSto loff/HSneed/LE—l3QA/ ll2NEMail/475_8777/7/24/87/DIsK:SNEED_15/#l
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—26—
TABLE ONE
LISTING OFFICIALSS DISCRETIONARY LISTING CUECKLIST
The Listing Official must perform the following tasks once
final Agency action on a recommendation for discretionary listing
has resulted in the decision to place a facility on the List of
Violating Facilities (the List):
1. Place the facility on the List, §15.12(d);
2. Notify the owner, operator, or supervisor of the facility,
and the recommending person that the facility has been listed and
of the effective date of listing ( Attachment P) , §15.16(b);
3. Notify the AEC(s) and the PA, ORC and regional program
office of the listing and its effective date and that the facility
will automatically be removed from the List after one year if it
was listed under § l5.ll(a)(4),(a)(5) or (a)(6) unless within
that period the LO is notified that a basis for listing under
§ 15. ll(a)(1), (a)(2), or (a)(3) has occurred ( Attachment 0) ;
4. Publish a notice in the Federal Register ( Attachment B) ,
§15.16(c);
5. Notify GSA to add the facility to GSA ’s Consolidated List
of Debarred, Suspended, and Ineligible Contractors ( Attach-
ment C) ;
6. Notify all federal agencies with major assistance respon-
sibilities, identified on the Assistance Agencies List ( Attach-
ment D) , that the facility is no longer eligible for federal
assistance programs ( Attachment E ) ; and
7. Provide OPA with the information necessary to prepare a
press release or press advisory on the listing action ( Attach-
ment F) .
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TABLE TWO
LISTING OFFICIAL’S REMOVAL CHECKLIST
The Listing Official must perform the following tasks once
final Agency action has resulted in a decision to remove a
facility from the List of Violating Facilities (the List):
1. Remove the facility from the List, §15.21(b);
2. Notify the owner, operator or supervisor of the facility,
recommending person, AEC(s) and the RA, ORC and regional program
office of the effective date of removal ( Attachment Z) , §15.27;
3. Publish in the Federal Register a notice that the facility
has been removed from the List ( Attachment B) , §15.27;
4. Notify the General Services Administration (GSA) to
remove the facility from GSA’s Consolidated List of Debarred,
Suspended, and Ineligible Contractors ( Attachment C) ;
5. Remove the case from the listing docket; and
6. Notify all federal agencies with major assistance respon-
sibilities, identified on the Assistance Agencies List ( Attach-
ment D) , that the facility is once again eligible to receive
federal assistance ( Attachment E) .
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LIST OF ATTACHMENTS
# Title
A Model Notice Letter to a Facility Listed Under Mandatory Listing
B Sample Federal Register Notice Publishing Changes to the List
As They Occur
C Model Letter to GSA Advising of Changes to the List
D List of Federal Agencies With Major Assistance Responsibilities
E Model Letter to Federal Agencies With Assistance Responsibilites
Advising of Changes to the List
F Model Memorandum Providing Information for Press Office
Preparation of a Press Release on a Listing Action
G Model Memorandum Asking for Comments on Recommendation to List
H Model Request for Additional Information from Recommending Person
H—i Model Memorandum Briefing the Assistant Administrator on
the Basis for Recommendation to List
H—2 Model Notice Letter That a Recommendation to List Has Been
Filed and Declined.
H-3 Model Statement by Assistant Administrator Declining to
Proceed With Listing Action
J Model Letter Notifying Facility of Proposed Listing and
Opportunity to Request Listing Proceeding
K Model Memorandum Transmitting Listing Recommendation to the
Region Requesting Documentation
L Sample Summary of Supporting Doci imentation for Recommendation
to List
M Sample Discretionary Determination to List
N Model Memorandum Transmitting Draft Determination to List
from Listing Official to Assistant Administrator
0 Sample Briefing Document on Recommendation to List Under
the Discretionary Listing Process
P Model Notice Letter of Discretionary Listing and Final
Agency Action
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List of Attachments p. 2
# Title
0 Model Memorandum Notifying Case Removal Team of Discretionary
Listing
R Model Notice Letter that Recommendation to List Has Been
Denied
S Model Designation of Case Examiner for Listing Proceeding
T Model Notice Letter of Date, Time and Location of Listing Proceeding
U Model Notice Letter of Case Examiner’s Decision in a Listing
Proceeding
V Model Memorandum Requesting Comments on a Request for OGC Review
W Model Memorandum Asking the Region to Draft the Agency’s Response
to a Request for Review
X Model Memorandum Transmitting to the General Counsel a Request
for Review of the Case Examiner’s Decision in a Listing Proceeding
Y Model Notice Letter of General Counsel’s Decision Reviewing
the Case Examiner’s Decision to List
Z Model Notice Letter of Effective Date of Removal
AA Model Letter Acknowledging Receipt of Removal Request
BB Model Memorandum Requesting Comments on Request for Removal
CC Model Request to Region to Prepare Formal Recommendation on
Request for Removal
DD Sample Formal Recommendation from Region on Request to Remove
a Facility from the List of Violating Facilities
EE Sample Summary of Supporting Documentation for Removal Request
FE’ Sample Determination to Remove a Facility from the List
GG Model Memorandum Transmitting Removal Request and Proposed Deter-
mination from the Listing Official to the Assistant Administrator
HH Model Briefing Outline on Request for Removal
JJ Model Notice of Assistant Administrator’s Decision Denying
Removal Request
KK Model Memorandum Asking for Comments on Request for Removal
LL Model Notice Letter of Assistant Administrator’s Decision
Denying Removal
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List of Attachments p. 3
Title
MM Model Designation of Case Examiner for Removal Hearing
NN Model Notice Letter of Date, Time and Location of Removal Hearing
00 Model Notice Letter of Case Examiner’s Decision in Removal Hearing
PP Model Notice That the Decision of the Case Examiner is Final
Agency Action
QQ Model Memorandum Asking for Comments on the Request for
Review of the Case Examiner’s Decision by the Administrator
RR Model Memorandum Asking the Regional Office to Draft Agency
Response to Request for Review of Case Examiner’s Decision
SS Model Memorandum Transmitting to the Administrator a Request
for Review of the Case Examiner’s Decision on a Removal Request
TT Model Notice of Determination of Administrator on Review of
the Case Examiner’s Decision on Removal Request
UU Sample Federal Register Notice Published Twice Yearly
VV 40 CFR Part 15 (50 Fed. Reg. 36188, September 5, 1985)
WW Draft Policy on Correcting the Condition Giving Rise to
Listing Under the Contractor Listing Program
XX Draft Policy on Independent Verification that Requirements
for Removal Have Been Met in Mandatory Listing Cases
YY Draft Definition, for purposes of removal, of the “condition”
that gives rise to mandatory listing.
ZZ Guidance on Implementing the Discretionary Contractor Listing
Program
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A
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Attachment A
MODEL NOTICE LETTER TO A FACILITY LISTED UNDER MANDATORY LISTING
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[ NAME AND ADDRESS OF OWNER, OPERATOR
OR SUPERVISOR OF FACILITY INVOLVED
IN THE CONVICTION]
Re: Notice of Listing
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
Dear [ NAME]:
This notice is to inform you that, pursuant to 40 CFR §15.10,
the above-named facility has been placed on the Environmental
Protection Agency’s List of Violating Facilities (the List) as of
[ DATE OF CONVICTION], as a result of a conviction obtained under
[ Section 309(c) of the Clean Water Act and/or Section 113(c)(1)
of the Clean Air Act.]
The effect of such a listing is that this facility shall
not be utilized in any new, renewed, or extended federal contract,
subcontract, grant, subgrant, loan, or subloan. Pursuant to the
various federal agency contract, grant, and loan regulations, you
will be required, in pre—award stipulations or certifications, to
represent that this facility has been placed on the List.
Please be advised that pursuant to 40 CFR §15.20, you may
request consideration for removal of your facility from the List.
Such a request must be in writing, addressed to me, the EPA
Listing Official, and must contain a certified statement incorpor-
ating appropriate evidence that the condition which gave rise to
the listing has been corrected. Enclosed is a more detailed
description of the requirements that a request for removal must
meet.
Sincerely yours,
[ NAME]
Listing Official
enclosure -
cc: Assistant Administrator for
Enforcement and Compliance Monitoring
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Attachment A, p. 2
—2—
Director,
Office of Compliance Analysis and Program Operations
Office of Criminal Enforcement Counsel
Environmental Crimes Unit,
Department of Justice
National Enforcement Investigations
Center
Associate Enforcement Counsel
[ air, water or both]
[ NAMEJ
Regional Administrator
Region [ NUMBER]
Office of Regional Counsel
Region [ NUMBER]
[ REGIONAL PROGRAM OFFICE]
Region [ NUMBER]
Attorney for Defendant (if known)
Office of the United States Attorney
District Court Clerk
[ Djsk:Srieed 8/#1]
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Attachment A, p. 3
REQUEST FOR REMOVAL FROM TE-IE LIST OF VIOLATING FACILITIES
Section 15.20 of the regulations governing the Contractor
Listing Program (40 CFR Part 15) provides that, once listed, a
facility “shall remain on the List of Violating Facilities until
the [ EPA] Assistant Administrator [ for Enforcement and Compliance
Monitoring] certifies that the condition giving rise to mandatory
listing has been corrected.” Section 15.22 of the regulations
provides that a request for removal must set forth, with speci-
ficity, the proposed basis for removal from the List under Section
15.20.
A request for removal from the List of Violating Facilities
should specifically address each matter identified below:
I. Name and address of person requesting removal
Name and location of facility
Crminal Docket Number, District Court, Date of Judgment
Status: (conviction, appeal, reversal, etc.)
II. The technical circumstances at the facility that constituted
the “Condition” which gave rise to the listing under the
Clean Air Act or Clean Water Act (or both), including any
environmental consequences of those circumstances.
III. All actions that the facility has taken to correct the
condition which gave rise to the listing. Identify all
permits, standards, SIPs, tests, waivers, exemptions, etc.,
that are necessary to effect such correction. Describe,
with supporting documentation, any modifications to plant,
equipment or procedures that have been undertaken to correct
the condition which gave rise to the listing, including
evidence demonstrating that the facility can operate and is
operating in accordance with the requirements of the statutory
provisions under which the conviction occurred and EPA
regulations promulgated thereunder. Please identify the
evidence which supports such a conclusion and any state or
EPA approval required.
IV. Identify what actions, if any, remain to be taken that are
necessary to correct the condition(s) which gave rise to
the listing. Please identify the schedule for such actions
and whether such a schedule has been approved by the State
or EPA.
V. Please describe in detail the current status of the facility’s
compliance with the Clean Air Act or Clean Water Act
requirements which the facility was found to be violating.
Please identify and supply documentation or other evidence
which supports each assertion made above.
vi. Information submitted must be signed and sworn by arespon—
sible company official. The declaration also must include
an acknowledgment that the statement and supporting informa-
tion is being submitted in regard to a matter within the
jurisdiction of this Agency and is subject to the sanctions
of 18 U.S.C. §1001 for false statement.
[ Disk:Sneed 8/fl]
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B
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Attachment B
SAMPLE FEDERAL REGISTER NOTICE PUBLISHI JG CHANGES TO THE LIST
AS THEY OCCUR
ENVIRONMENTAL PROTECTION AGENCY
EPA LIST OF FACILITY PROHIBITYED FROM RECEIVING GOVERNMENT
CONTRACTS UNDER 40 CFR PART 15
AGENCY: ENVIRONMENTAL PROTECTION AGENCY
ACTION: NOTICE OF PLACEMENT OF FACILITY ON THE EPA LIST OF
VIOLATING FACILITIES
SUMMARY: The EPA Assistant Administrator for Enforcement and
Compliance Monitoring decided on June 31, 1985, to add to
Sublist 2 of the EPA’s List of Violating Facilities the XYZ
Company, Eastern States facility based U Ofl continual or
recurring violations of an administrative order issued under
Section 113 of the Clean Air Act.
Accordingly, no Agency shall enter into, renew, or ex-
tend any nonexempt contract, subcontract, grant, subgrant,
loan or subloan where the facility listed would be utilized
for the contract, subcontract, grant, subgrarit, loan or
subloan.
FOR FURTHER INFORMATION CONTACT: [ NAME , Listing Official,
Legal Enforcement Policy Branch, Environmental Protection
Agency, Rm. 112NE, 401 M Street, S.W., Washington, D.C.
20460. Telephone: (202) 475—8777.
SUPPLEMENTARY INFORMATION: Pursuant to Section 306 of the Clean
Air Act E42 U.S.C. 1857 et seq., as amended by Public Law 91—
-------
—2— Attachment B, P. 2
6043, Section 508 of the Federal Water Pollution Control Act
[ 33 U.S.c. 1251 et seq., as amended by Public Law 92—500J,
and Executive Order 11738, EPA has been authorized to provide
certain prohibitions and requirements concerning the adminis-
tration of the Clean Air Act and the Clean Water Act with
respect to federal contracts, grants, or loans. On April
16, 1975, regulations implementing the requirements of the
statutes and the Executive Order were promulgated in the
Federal Register [ see 40 C.F.R. Part 15, 40 FR 17124, April
16, 1975, as amended at 44 FR 6911, February 5, 1979].
Section 15.20 of the regulations provides for the establish-
ment of a List of Violating Facilities which will reflect
those facilities ineligible for use in nonexempt federal
contract, grants or Loans.
The List of Violating Facilities is contained in two
subljsts. Subljst 1 includes those facilities listed on the
basis of a conviction under Section ll3(c)(l) of the Clean
Air Act or Section 3 O9(c) of the Federal Water Pollution
Control Act. Subljst 2 includes those facilities listed on
the basis of: Any injunction, order, judgment, decree or
other form of civil ruling by a federal, state or local
court issued as a result of noncompliance with clean air or
water standards 7 a conviction in a state or local court for
noncompliance with clean air or water standards 7 noncompliance
with an order under Section 113(a) of the Clean Air Act or
Section 3 09(a) of the Federal Water Pollution Control Act;
or equivalent state or local proceedings to enforce clean
air or water standards.
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-3— Attachment B, P. 3
No agency shall enter into, renew, or extend any nonexernpt
contract, subcontract, grant, subgrarit, loan or sub].oan where a
facility listed would be utilized for the contract, subcontract,
grant, subgrant, loan or subloan.
The purpose of this notice is to add to Sublist 2 the XYZ
Company, Inc., Eastern States facility based U Ofl Continual
or recurring violations of an administrative order issued
under Section 113 of the Clean Air Act.
Pursuant to the above—referenced authority, the Assistant
Administrator for Enforcement and Compliance Monitoring, u.s.
Environmental Protection Agency, certifies that the following
facility is on the List of Violating Facilities as of June 31,
1985. The List of Violating Facilities will be revised periodi-
cally as any listings or delistings occur.
Sublist 2: Sierra Transit Mix Company, Las Vegas, New Mexico
Facility
Dated:
[ NAI’4E ]
Assistant Administrator for Enforcement
and Compliance Monitoring
[ Disk;Sneecj 8/#2]
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C
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Attachment C
MODEL LETTER TO GSA ADVISING OF CHANGES TO THE LIST
Juan Smith
Office of Acquisitions Policy
General Services Administration
Washington, D.C. 20405
Dear Ms. Smith:
On [ DATE] [ NAME OF FACILITY AND LOCATION] was [ placed on!
removed from] the EPA List of Violating Facilities pursuant
to 40 CFR Part 15. Please [ add/remove] this facility [ to/from]
to the GSA Consolidated List of Debarred, Suspended, and Ineli-
gible Contractors.
Sincerely yours,
[ NAME]
Listing Official
[ Disk:Sneed 8/#3]
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D
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LIST OF FEDERAL AGEt CIES WITH
MAJOR ASSISTkNCE RESPONSIBILITIES
[ Sneed/Djsjc 8/#5]
Attachraent D
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E
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Attachment E
MODEL LETTER TO FEDERAL AGENCIES WITH MAJOR ASSISTANCE
RESPONSIBILITIES ADVISING OF CHANGES TO THE LIST
[ NAME
AGENCY NAME
AND ADDRESS]
Re: Changes to the EPA List
of Violating Facilities
Dear [ NAME]:
On [ DATE], [ NAME OF FACILITY AND LOCATION] was [ placed on!
removed from] the EPA List of Violating Facilities pursuant
to 40 CFR Part 15. This means the the above—named facility
is [ no longer/now] eligible to receive Federal grants, loans,
subgrants or subloans pursuant to §306 of the Clean Air Act,
§508 of the Clean Water Act, and Executive Order 11738.
Please note this change in the facility’s eligibility for
Federal assistance.
Sincerely yours,
[ NAME]
Listing Official
[ Disk:Sneed 9/#15]
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F.
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Attachment F
MODEL MEMORANDUM PROVIDING INFORMATION FOR PRESS OFFICE
PREPARATION OF PRESS RELEASE ON LISTING ACTION
MEMORANDUM
SUBJECT Information for Preparing a Press Release on the
Listing of [ NAME AND LOCATION OF FACILITY]
FROM: [ NAME]
Listing Official
TO: [ APPROPRIATE EPA PRESS OFFICES]
On [ DATE], EPA rendered an administrative decision to
place [ NAME AND LOCATION OF FACILITY] on EPA’s List of
Violating Facilities (the List). As a “listed” facility,
[ NAME AND LOCATION OF FACILITY] is prohibited from receiving
any nonexempt federal government contracts, loans or grants
(including subcontracts, subloans or subgrants). The effective
date of the listing is [ DATE].
The administrative decision to place [ NAME AND LOCATiON
OF FACILITY] on the List was based on [ DESCRIBE whether the
listing was a mandatory listing under Section 113(c)(l) of
the Clean Air Act and/or Section 309(c) of the Clean Water
Act, or a discretionary listing for continuing or recurring
violations of Clean Air Act or Clean Water Act standards
despite previous enforcement actions.] [ DESCRIBE specific
nature of the violations by the facility.]
The decision to “List” [ NAME AND LOCATION OF FACILITY]
was the result of [ DESCRIBE whether listing decision was
automatic under the mandatory listing regulation, or based on
a. determination by the Assistant Administrator for Enforcement
and Compliance Monitoring, a case examiner, or the Office of
General Counsel.]
EPA’s authority to list facilities for failure to comply
with the Clean Air Act and Clean Water Act is found in Section
306 of the Clean Air Act (42 U.S.C. §7606), Section 508 of
the Clean Water Act (33 U.S.C. §1368), Executive Order 11738
(38 Fed. Reg. 25161, September 12, 1973), and 40 CFR Part 15.
Please contact [ NAME, TITLE, OFFICE AND FTS NUMBER] to
obtain additional information.
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Attachment F, p. 2
SAMPLE FACT SHEET AND CHRONOLOGY
Fact Sheet and Chronology of the Listing of
XYZ Company, Inc., [ NAME AND LOCATION OF FACILITY]
I. The Facility: x z Company operates a biturna asphalt plant
located in [ LOCATION].
II. The Violation: The facility was subject to the new source
performance standards (NSPS) for Asphalt Concrete Plants,
40 CFR Part 60, Subpart I (1984) and failed to meet the
standard for particulate emissions, 40 CFR §60.92(a)(]j,
even though EPA had issued an administrative order
directing the facility to come into compliance in Septem-
ber of 1984.
III. Chronology :
January—June 1984 - State attempts to have the facility
come into compliance with the NSPS particulate standard.
September 14, 1984 - [ NAME], the Regional Administrator
for Region XII issued an administrative order under
§113(a) of the Clean Air Act for the facility’s violations
of the particulate standard of 90 milligrams per dry
standard cubic meter (0.04 grain per dry standard cubic
foot), 40 CFR §60.92(a)(1), directing the facility to
comply with that standard. The violation was determined
by performance tests conducted on November 19, 1983 at
which time the Eacility was discharging gases containing
256.5 miligrams of particulate matter per dry standard
cubic meter (0.114 grain per dry standard cubic foot).
The administrative order also directed the facility to
conduct performance tests for emissions of particulates
within sixty days following the effective date of the
order.
September 30, 1984 - ABC, a contractor hired by XYZ Com-
pany conducted performance tests which showed that
particulate emissjoners were 373.5 milligrams per dry
standard cubic meter (0.166 grain per dry standard cubic
foot), and thus in violation of the administrative
order.
August 9, 1985 - [ NAME], the EPA Listing Official,
sent XYZ Company a Notice of Proposed Listing for
violations of the administrative order and offered XYZ
an opportunity to request a listing proceeding.
August 14-15, 1985 — DEF, a contractor hired by XYZ Com-
pany conducted source sampling for particulate emissions
-------
Attaci-unent F, p. 3
at the facility. DEF concluded that the tests showed emissions
of 0.0378 grain per dry standard cubic foot, and thus emissions
were below the standard of .04 grain per dry standard Cubic foot.
August 20, 1985 — Staff of the Region XII Air and Waste
Management Dj j j 0 reviewed the test results and found that
they were based on an inaccurate measurement of barometric
pressure for the date and time of the tests. Calculations
using the proper barometric pressure showed the particulate
emission level from the facility to be above the allowable
particulate emission standard.
September 9, 1985 — [ NAME], the EPA Listing Official, notes
that the facility has not requested a hearing before a Case
Examiner and prepares to process the recomrnenciatjon to list.
September 31, 1985 — [ NAME], Assistant Administrator for the
Office of Enforcement and Compliance Monitoring, issues a
determination placing the XYZ Company, [ NAME AND LOCATION OF
FACILITY] on the EPA List of Violating Facilities.
[ DISK:Sneed 8/#24]
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G
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Attachment G
MODEL MEMORANDUM ASKING FOR COMMENTS ON
RECOMMENDATION TO LIST
MEMORANDUM
SUBJECT: Request For Comments on
Recommendation to List
FROM: [ NAME]
Listing Official
TO: Addressees
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
I have received a recommendation to place the above—named
facility on the EPA List of Violating Facilities. Your comments
on the attached recommendation to List are needed to prepare the
Agency’s response. Consequently, please examine the recommendation
and forward any comments to me within 10 days.
Thank you for your assistance in this effort.
Attachment
Addressees:
Regional Administrator
Region [ NUMBER]
Office of Regional Counsel
(REGIONAL PROGRAM OFFICE]
Associate Enforcement Counsel [ Air/Water]
[ Disk:$need 9/fiB]
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H
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AttachB ent H
MODEL REQUEST FOR ADDITIONP L INFORMATION
FROM RECOMMENDING PERSON
[ NAME AND ADDRESS
OF RECOMMENDING
PERSON]
Dear [ NAME]:
You recently sent the Environmental Protection Agency (EPA)
a recommendation to place [ NAME AND LOCATION OF FACILITY] on
the EPA List of Violating Facilities (the List). In my
capacity as the EPA Listing Official, I have reviewed that
recommendation and find that it lacks sufficient information to
satisfy the requirements for a recommendation to list under
the regulations in 40 CFR Part 15. Consequently, the recommend-
ation to list is being returned to you with this letter.
Pursuant to 40 CFR §15.11(b), each recommendation to
list must contain: (1) the name, address and telephone number
of the person filing the recommendation; (2) a description of
the facility alleged to be in noncompliance with clean air or
clean water standards, including the name and address of the
facility; and (3) a description of the criminal, civil or
administrative action or conviction which is pertinent to the
alleged continuing or recurring noncompliance. [ DESCRIBE THE
SPECIFIC INFORMATION NEEDED TO SATISFY THE REQUIREMENTS OF 40
CFR §15.11(b).]
If you are still interested in recommending that (NAME AND
LOCATION OF FACILITY] be placed on the List, please submit a
new recommendation to list that satisfies the requirements of
40 CRF Part 15. Your interest in and support of the contractor
listing program is appreciated. Should you have any additional
questions on the listing program, please contact this office
at (202) 475—8777.
Sincerely,
[ NAMEJ
Listing Official
enc losure
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I
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Attachment 9—l
MEMORANDUM BRIEFING THE ASSISTANT ADMnJISrRATOR ON
THE BASIS FOR RECOMMENDATION TO LIST
MEMORANDUM
SUBJECT: Recommendation to List XYZ Company 1
Eastern States Facility
FROM: [ NAME]
Listing Official
TO: [ NAME]
Assistant Administrator for Enforcement
and Compliance Monitoring
Doccet N. [ NUMBER ]
F tcility: tNAME AND LOCATION OF FACILITY)
3n [ DATE], ABC Company. Inc., a competitor o XYZ Company,
FLied -i recommendation to list XYZ for violations of its dis—
charge permit un 1er the National Pofl.utarit Discharge Eliiairiatiort
System. The recommendation to list appears to contain all oF
the information required 1 y 40 CPR §15.11( h). Consequently,
I am providing you with a brief preview of this potential list-
ing action prior to submitting it to you for your consideration.
The recommendation to list is based on information con-
tained in Discharge Monitoring Reports (DMRs) filed by XYZ.
The DMRs show that XYZ violated its permit requirements on
three consecutive day 5 in July. The previous enforcement
action consists of an administrative order issued to XYZ as a
result oF chronic discharges exceeding the limits For total
soLids allowed by its JPDES permit. Under the terms of the
administrative order, XYZ was to install additional wastewater
treatment equipment to eliminate the excessive discharge of
total suspended solids.
3: -i [ T)ATE], XYZ completemi the iisbailatior oF that equip—
uncut and had been in compliance with its perr it for a year
until the episode in July. Current OMRs supplied by the
Region show that XYZ has been operating in compliance with
its permit since the July incident which appears to have been
the resuLt of equipment failure at the facility.
Based on the information supplied by the Region 1 the -
current violations do not appear to be a problem for which
li tin -j is an appropriate response. CorisejuentLy, I o’ild
-------
7. 7
recommend that the Agency decline to proceed with the llstir-ij
.-lc jon in this case. If you would 1.ik n oral briefing on
this matter, please let me know.
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2
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tac n n H—2
MODEL NOTICE LETTER THAT A RECOMMENDATION TO
LISP HAS SEEN FLL D AND DECLINED
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[ NAME AND ADDRESS OF
OWNER, OPERATOR OR SUPERVISOR
OF FACILITY]
Re: Notice of Recommendation to List
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
Dear [ NAME]:
In accordance with 40 CFR §15.12(a), this Letter is being
sent to notify you that [ NAME AND TITLE OF RECOMMENDING
PERSON] has filed a recommendation to place the above—named
facility on the Environmental Protection Agency’s (E?k) r i.3t
of Violating Facilities established pursuant to [ Section 306
of the Clean Air Act (42 U.S.C. §7606), Section 508 of the
Clean Water Act (33 tJ..S.C. §1368)] and Executive Order 11738.
The effect of such listing would be that no federal agency
will enter into, renew, or extend any nonexempt contract, subcon—
tract, grant, subyrant, loan, or subloan where the listed facility
would be utilized in any way in such contract, subcontract:,
grant, subgrant, loan, or subloan. The prohibition continues
until the appropriate grounds for removal specified in 40 CFR
§15.21 are met.
[ NAME OF RECOMMENDING PERSON) has recommended that [ NAME
& IJOCATIONJ OF FACILITY] be placed on the EPA List of Violating
Facilities iinc5er 40 CFR § 15.11(a) because the facility s
experienced continuing or recurring violations of [ clean
air/clean water) standards despite previous enforcement activ-
ities involving this facility. A copy of that document is
enclosed. However, after evaluating the recommendation to
list, the Assistant Administrator for Enforcement and Compli-
ance Monitoring has decided to decline to proceed with the
listing action for the reasons set forth in the enclosed
statement.
I you have any questions regarding this natter, you may
contact me by telephone at (202) 475—8777.
Sincerely yours,
[ NAME]
Listing Official
Enclosures
cc: [ RECOMMENDING PERSON]
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3
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Attac wtent - --3
MODEL STATEMENT BY ASSISTANT ADMINISTRATOR
DECLLNtNG TO PROCEED LTF LISTING ACTION
List of Violating Facilities
Stement_Declining to Proceed With Listing Action
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
On [ DATE], ABC Company, Inc., a competitor of XYZ Company,
filed a recommendation to List XYZ for violations of its dis—
charge permit under the National Pollutant Discharge Elimination
System. Although the reconrner 1ation to list contains all of
the information required by 40 CFR §15.11(b) to initiate the
Listing process, I decline to proceed with this listing action.
The recommendation to list is based on information con-
tained in Discharge Monitoring Reports (DMRs) filed by XYZ.
The DMRs show that. XYZ violated its permit requirements on
three consecutive -lays in July. The previous enforcement
action consists of an administrative order issued to XYZ as a
result of chronic discharges exceeding the limits for total
solids allowed by its NPDES permit. Under the terms of the
administrative order, XYZ was to install additional wastewater
treatment equipment to eliminate the excessive discharge of
total suspended solids.
On [ DATE], XYZ completed the installation of that e 1 uip—
rnent and had been in compliance with its permit for approxi—
rnately one year until the episode in July. Current DMRs
supplied by Region XII show that XYZ has been operating in
compliance with its permit since the July incident which
appears to have been the result of equipment failure at the
facility.
Based on the information supplied by the Region, the
current violations do not appear to be a problem for which
listing is an appropriate response. Consequently, t decLine
to proceed with the listing action.
[ NAMEJ - -. - - - -
Assistant Administrator for
Enforcement and Compliance Monitoring
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J
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Attachment J
MODEL NOTICE LETTER OF PROPOSED LISTING AND OPPORTUNITY TO
REQUEST LISTING PROCEEDING
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[ NAME AND ADDRESS OF
OWNER, OPERATOR OR SUPERVISOR
OF FACILITY]
Re: Notice of Proposed Listing
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
Dear [ NAME]:
In accordance with 40 CFR §15.12(a), this letter is being
sent to notify you that the above—named facility is under con-
sideration for placement on the Environmental Protection Agency
(EPA) List of Violating FaciLities established pursuant to [ Section
306 of the Clean Air Act (42 U.S.C. §7606), Section 508 of the
Clean Water Act (33 U.S.C. §1368)] and Executive Order 11738.
The effect of such listing would be that no federal agency
will enter into, renew, or extend any rionexernpt contract, subcon-
tract, grant, subgrant, loan, or sub].oan where the Listed facility
would be uti1i ed in any way in such contract, subcontract,
grant, subgrant, loan, or subloan. The prohibition continues
until the appropriate grounds for removal specified in 40 CFR
§15.21 are met.
[ NAME AND TITLE OF RECOMMENDING PERSON] has recommended
that f:NAME & LOCATION OF FACILITY) be placed on the EPA List of
Violating Facilities under 40 CFR §15.11(a) because the facility
has experienced continuing or recurring violations of [ clean
air/clean water] standards despite previous enforcement activities
involving this facility. A copy of that document is enclosed.
Please be advised that pursuant to 40 C±FR §15.12, you may
request a listing proceeding before a Case Examiner for the
purpose of determining the propriety of the proposed listing.
Any request for a listing proceeding must be received within
30 days of the date you received this letter. Your request
shouLd be addressed to me, the Listing Official, LE—130A, 401 M
Street, Washington, D.C. 20460. Though the listing proceeding
is informal without formal rules of evidence, the parties may be
-------
—2— Attachment J, P. 2
represented by counsel and may present oral and written evidence
relevant to the proposed listing. I direct your attention to the
regu1atjo set forth at 40 CFR Part 15 for a fuller explanation of
the listing proceeding.
Sincerely yours,
C AME]
Listing Official
enclosure
cc: [ RECOMMENDING PERSON]
bcc: [ LISTING CASE TEAM]
[ Disk:Sneed 8/*15]
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K
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Attachment K
MODEL MEMORANDUM TRANSMITTING LISTING RECOMMENDATION
TO REGION REQUESTING DOCUMENTATION
ME MORANDUM
SUBJECT: Request to Prepare a Summary of Documentation
Bearing on a Recommendation to List
FROM: [ NAME]
Listing Official
TO: [ NAMEJ
Regional Administrator
Region [ NUMBER]
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITYJ
The attached recommendation to place the above—named facility
located in your region on the EPA List of Violating Facilities
(the List) is being sent to you to prepare a summary of documenta-
tion bearing on that request. This information is required so
that I can prepare a proposed determination regarding the recom-
mendation to list for the Assistant Administrator of Enforcement
and Compliance Monitoring.
To assist you in preparing the summary, I am also sending
you copies of all comments made by staff concerning the recorn—
mendatjon to list as well as a model document showing what the
summary should contain. In general, the summary should describe
the facility, the violation which is alleged to give rise to
listing, any test results, the underlying enforcement action
necessary for discretionary listing, and should list all documents
which bear upon the determination whether the facility should be
listed. Please send the summary to me within 15 days of the date
you receive this memorandum.
Thank you for your assistance with this listing action.
Attachments
cc: Office of Regional Counsel
[ REGIONAL PROGRAM OFFICE]
[ Disk:Sneed 9/#17]
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L
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Attachment L
SAMPLE SUMMARY OF DOCUMENTATION REGARDING
RECOMMENDATION TO LIST
Summary of Documentation Regarding Recommendation to List
Docket No. 00000000
Facility: XYZ Company, Inc., [ FACILITY NAME, LOCATION]
I. THE FACILITY
A. Type :
This listing action involves a bituma asphalt plant within
Region XII located in City/County, State. The plant was built in
1982 and is subject to Clean Air Act new source performance
standards for Asphalt Concrete Plants, 40 CFR Part 60, Subpart I.
The plant is located jr-i an attainment area for particulates.
B. Ownership :
The facility is owned by XYZ Company, incorporated. The
president of XYZ is [ NAME] and the plant manager, [ NAME], has
responsibility for environmental matters concerning the facility.
II. DOCUMENTATION OF VIOLATION
The facility has been in violation of the NSPS standard for
particulate emissions from Asphalt Concrete Plants since November
19, 1983.
A. The Standard :
Under the regulations, the maximum the allowable discharge of
particulate matter is 90 milligrams per dry standard cubic meter
(0.04 grain per dry standard cubic foot).
B. Test Results :
1. The plant was initially found to be jr-i violation of
the standard as a result of performance tests conducted on Novem-
ber 19, 1983. At that time, the plant was discharging gases
which contained 256.5 milligrams of particulate matter per dry
standard cubic meter (0.114 grain per dry standard cubic foot).
2. Or-i September 30, 1984, ABC, a contractor hired by XYZ
Company, conducted performance tests at the facility. Those tests
were submitted by XYZ Company to EPA and showed that particulate
emissions were 373.5 milligrams per dry standard cubic meter
(0.166 grain per dry standard cubic foot). These levels violated
the standard and also violated an administrative order which had
been issued by EPA.
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—2— Attachment L, p. 2
3. On August 4 and 5, 1985, DEF, a contractor hired by
XYZ Company conducted source sampling for particulate emissions
from the facility. DEF concluded that the average grain loading
for the three test runs was 0.378 grains per dry standard cubic
foot, a level of particulate emissions which was below the stand-
ard of 0.4 grains per dry standard cubic foot. However, the
sampling results were sent to EPA and reviewed by staff. That
review showed that XYZ Company had used incorrect figures for
actual barometric pressure. When the test results were recalculated
using the correct barometric pressure, the facility was found to
be in violation of the particulate emission standard.
LII. ENFORCEMENT ACTION
When the facility was initially found to be in violation of
the standard for particulate emissions in September, 1983, the
State began informal negotiations with the facility in an attempt
to obtain compliance with the standard. These negotiations,
conducted during the first six months of 1984, did not bring
about compliance. On September 14, 1984, the Regional Administra-
tor, Region XII, issued an administrative order pursuant to
Section 113(a) of the Clean Air Act for violations of the parti-
culate standard, 40 CFR §60.92(a)(1).
The administrative order required XYZ Company to operate
its plant in compliance with 40 CFR Part 60, Subpart I, and to
conduct performance tests for emissions of particulate matter
within sixty days following the effective date of the administra-
tive order. Performance tests conducted on August 4 and 5, 1985
showed that the facility was still in violation of the particulate
standard.
EPA has not filed a judicial action to enforce the order nor
has it referred the case to the Department of Justice. The
Regional Counsel staff is preparing a referral.
III. DOCUMENTS
The following documents were used in preparing the recommend-
ation to List.
November, 1983 Report on Plant Emissions by HIJ & Associates
February 21, 1984 Memorandum from the State Environmental
Enforcement Unit
July 11, 1984 Stack Test Report filed by KLM Engineering
for November 19, 1983 test.
July 20, 1984 Source Test Report Evaluation for XYZ Company
August 14, 1984 Administrative Order by Region XII
September 30, 1984 Report of Test Results from ABC
October 24, 1984 Note from Listing Official to File Re:
Telephone Call
November 26, 1984 Memorandum on Evaluation of Test Report
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—3— Attachment L, p. 3
January 16, 1985 Note to File from Listing Official Re:
Telephone Call
January 17, 1985 Memorandum from Region XII, Regional Counsel
February 18, 1985 Memorandum from Region XII, Regional Counsel
March 4, 1985 Recommendation to List XYZ Company, Inc.
April 31, 1.985 Note from Listing Official to File Re:
Telephone Call
June 30, 1985 EPA EvaLuation of Test Report
June 6, 1985 RecommendatiOn to List (Supplemental)
August 1, 1985 Supplemental Information on Recommendation
to List
August 9, 1985 Notice of Consideration for Listing
August 12, 1985 Report on Test Results from DEF
August 15, 1985 EPA Evaluation of Test Results from DEF
I have reviewed the recommendation to list in this case and
I have attached to this documentation summary my comments on the
recommendation to list.
[ NAME]
Deputey RegLonal Administrator
Region [ NUMBER]
[ Disk:Srieed 8/*12]
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M
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Attachment M
SAMPLE DISCRETIONARY DETERMINATION TO LIST
List of ViolatLng Faci.lities
Determination to List
Docket No. 00000000
Facility: XYZ Company, Inc., [ FACILITY NAME, LOCATION]
BACKGROUND
On August 9, 1985, the Agency Listing Official, Environmental
Protection Agency (EPA), informed XYZ Company that because of
violations of an administrative order issued under Section 113
of the Clean Air Act by the Regional Administrator of Region XII
the XYZ Company’s facility was under consideration for placement
on the EPA List of Violating Facilities. In the notice, XYZ
was afforded the opportunity to participate in a listing proceed-
ing pursuant to 40 CFR 15.12. XYZ did not request a listing
proceeding.
FINDINGS
XYZ Company owns and operates a bituma asphalt plant which
is subject to new source performance standards for Asphalt
Concrete Plants (40 CFR Part 60, Subpart I (1984)). The allowable
discharge of particulate matter is 90 milligrams per dry standard
cubic meter (0.04 grain per dry standard cubic foot).
On September 14, 1984, the Regional Administrator, Region
XII, issued an administrative order pursuant to Section 113(a)
of the Clean Air Act for violations of the particulate standard
(40 CFR Section 60.92(a)(l)). The plant was discharging gases
which contained 256.5 milligrams of particulate matter per dry
standard cubic meter (0.114 grain per dry standard cubic foot).
This violation was determined by performance tests conducted
November 19, 1983. The administrative order required XYZ to
operate its plant in compliance with 40 CFR Part 60, Subpart I,
and to conduct performance tests for emissions of particulate
matter within sixty days following the effective date of the
administrative order.
On September 30, 1984, ABC, a contractor hired by XYZ, con-
ducted performance tests at the company facility, the results of
which were submitted by XYZ to EPA. The particulate emissions
were 373.5 milligrams per dry standard cubic meter (0.166 grain
per dry standard cubic foot), and thus in violation of the admin-
istrative order.
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—2- Attachment M, P. 2
On August 9, 1985, the Agency Listing Official informed XYZ
that because of violations of an administrative order issued
under Section 113 of the Clean Air Act, its facility was under
consideration for placement on the EPA List of Violating Facili-
ties- This notice provided XYZ with an opportunity to request
a listing proceeding, to present information relating to the
proposed placement of the facility on the List. XYZ did not
request a listing proceeding.
DEF, a contractor to XYZ Company, conducted source sampling
for particulate emissions on August 4 and 5, 1985 at the XYZ
facility. The sampling results were sent to the EPA Agency
Listing Official. DEF concluded that the average grain loading
of the three test runs was 0.0378 gr/dscf, below the .04 gr/dscf
limit set by EPA. The Region XII Air and Waste Management Divi-
sion reviewed the results and determined that XYZ Company used
incorrect figures for actual barometric pressure and remained
in noncompliance. Calculations using the correct barometric
pressure showed the particulate emission level to be above the
allowable particulate emission standard.
I have reviewed the results of the DEF testing and have
determined that XYZ continues to violate the Standards of Per-
formance for Asphalt Concrete Plants, 40 CFR Part 60, Subpart I,
and the requirements of the Administrative Order issued on
September 14, 1984. The particulate emission levels submitted
by DEF based on their tests on August 4 and 5 are inaccurate due
to miscalculation of barometric pressure.
P s required by 40 CFR §60.8(f), each performance test must
consist of three separate runs using the applicable test method,
although in certain circumstances two runs are adequate. Pursuant
to 40 CFR §60.93(a)(l) , Test Method 5 — Determination of Particu-
late Emissions from Stationary Sources , 40 CFR Part 60, Appendix
A, is used to calculate particulate emissions for asphalt concrete
plants.
Determination of the particulate emission level is based,
in part, on calculation of barometric pressure. See Test Method
Five Section 6.3, Equation 5—1. In preparing its test results,
DEF used barometric pressures of 29.90 inches of mercury (in. Hg)
(Run #1), 28.50 in. Hg (Run #2), and 28.50 in. Hg (Run #3). A
flight service station specialist with the Federal Aviation
Administration (FAA), stated in a conversation with Environmental
Services Division, EPA Region XII, that the aptual barometric
pressure at the nearby airfield for the three runs was actually
23.32 in. Hg, 23.08 in. Hg, and 22.98 in. Hg respectively based
on FAA measurements, taken during the time of the three test
runs. The DEF figures for barometric pressure reflect barometric
pressure at sea—level, which has an approximate barometric pres-
sure of 30, and were not adjusted for the site which has n
elevation of 6400 feet.
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-3- Attachment M, P. 3
Applying the actual barometric pressure, the particulate
emission Level for the three test runs is 0.049, which exceeds
the emission limit of 0.04 grairis/scf. The particulate concen—
tratioris for the individual runs were 0.054 gr/dscf (Run #1),
0.050 gr/dscf (Run #2), and 0.043 gr/dscf (Run #3). The
enclosed Source Sampling Calculation sheet contains a calcula-
tion of particulate emissions applying Test Method 5 with the
correct figures for barometric pressure.
Barometric pressure also affects the calculation of the
Lsokinetic range. The allowable isokinetic range for particulate
emission tests is 90-110%, although EPA may accept a test result
run at an isokinetic vaLue less than 90%. See 40 CFR Part 60,
Appendix A, Method 5, Section 6.12. DEF concluded that the
isokinetic range was 98% (Run #1), 109% (Run #2), and 115% (Run
#3), based on the same incorrect calculation of barometric pres-
sure referenced above.
Application of the actual barometric pressure figures
results in an isokirietic range of 86.3% (Run #1), 96.9% (Run #2)
and 102.4% (Run #3). The enclosed Source Sampling Calculation
Sheet contains a calculation of the isokinetic rates for the
three runs. The isokirietic range of the first run is outside
the allowable isokinetic range. The actual particulate emission
level using the two valid test runs would be 0.047 grains/scf,
which still exceeds the emission limit of 0.04 grains/scf.
The findings satisfy the criteria for listing provided by
40 CFR Section 15.11, and constitute a continuing violation of
Clean Air Act standards.
CONCLUSION
Pursuant to 40 CFR Sections 15.11 and 15.12 and based on the
findings delineated above, it is hereby determined that there is
adequate evidence of continuing or recurring noncompliance with
Clean Air Act standards at the XYZ facility and the requisite
enforcement action has been taken. Therefore, the XYZ facility
is hereby placed on the EPA List Of Violating Facilities.
[ NAME]
Assistant Administrator for
Enforcement and Compliance Monitoring
Dated: ___________
[ Disk:Sneed 8/#l0]
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N
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Attachment N
MODEL MEMORANDUM TRANSMITING DRAFT DETERMINATION TO LIST FROM
LISTING OFFICIAL TO ASSISTANT ADMINISTRATOR
MEMORANDUM
SUBJECT: Determination to List [ NAME OF FACILITY]
FROM: [ NAME]
Listing Official
TO; [ NAME]
Assistant Administrator for Enforcement
and Compliance Monitoring
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
The attached recommendation to list the above—named faci-
lity pursuant to 40 CFR Part 15, is being sent to you for your
consideration. In addition to the recommendation to list, I am
transmitting to you a draft determination which has been reviewed
by the staff identified on the concurrence copy of the document.
A summary of documentation supporting the draft determination
also is attached. If the determination meets with your approval,
please sign it and return it to me for distribution.
Attachments
[ Disk:SrieecI 8/ i3]
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0
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Attachment 0
SAMPLE BRIEFING DOCUMENT ON RECOMMENDATION TO LIST
UNDER THE DISCRETIONARY LISTING PROCESS
Outline for Briefing the Assistant Administrator
On Recommendation to List XYZ Company, Inc., [ LOCATION]
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
I. Background
A. Type of Facility:
B. Ownership:
C. Standard for Listing:
1. Continuing or Recurring Violation; arid
2. Previous Enforcement Action.
II. Violation
A. Nature:
B. Documentation:
III. Enforcement Action
A. Nature:
B. When Taken:
C. Result:
IV. Recommendation and Concurrence
A. Listing Recommendation Filed by:
B. Recommendation Concurred in by:
1. Regional Administrator
2. Associate Enforcement Counsel
3. Senior Enforcement Counsel
4. Director OCAPO
V. Special Considerations
A. Likelihood of Achieving Compliance
B. Financial Condition of Facility
[ Disk:Sneed 8/#14]
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P
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Attachment P
MODEL NOTICE LETTER OF DISCRETIONARy LISTING
AND FINAL AGENCY ACTION
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[ NAME AND ADDRESS OF
RECOMMENDING PERSON
AND PERSON REQUESTING
LISTING PROCEEDING]
Re: Final Agency Action on Listing Recommendation
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
Dear [ NAME]:
[ INCLUDE only if AA’s decision results
in listing under 40 CFR §15.12(d):]
On [ DATE], a recommendation to place the above—named facili-
ty on the Environmental Protection Agency’s (EPA) List of Viola-
ting Facilities (the List) was received. Subsequently, on [ DATE],
you were sent a Notice of Proposed Listing advising you of the
opportunity to request a listing proceeding before a Case Examiner
to determine whether the above—named facility should be listed.
Since a request for a listing proceeding was not received, in
accordance with 40 CFR §15.12(d), this letter is being sent to
inform you that the Assistant Administrator for Enforcement and
Compliance Monitoring has determined that there is a record of
continuing or recurring noncompliance with [ clean air/clean
water] standards at [ NAME AND LOCATION OF FACILITY] despite
previous enforcement actions and that the facility should be
listed. A copy of that determination is enclosed. The determina-
tion of the Assistant Administrator constitutes final Agency
action on the recommendation to list.
[ INCLUDE only if Case Examiner’s decision
results in listing under 40 CFR §15.14(d):]
On [ DATE], you received a letter notifying you that, follow-
ing a listing proceeding, Case Examiner [ NAME] had determined by
a preponderance of the evidence that an adequate basis existed to
place [ NAME AND LOCATION OF FACILITY] on the Environmental Protec-
tion Agency’s (EPA) List of Violating Facilities (the List-). That
letter also advised you of the opportunity to have the decision of
the Case Examiner reviewed by the General Counsel of EPA, provided
a request for such review was received within 30 days of the date
of that letter. Since a timely request for review has not been
received, the decision of the Case Examiner has become final agency
action in accordance with 40 CFR §15.14(d).
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2 Attachment P, P. 2
[ INCLUDE only if OGC’s decision results
in listing under 40 CFR §15.14(c):]
On [ DATEJ, [ NAME/you] requested that the Genera]. CounseL of the
Environmental Protection Agency (EPA) review the decision of
Case Examiner [ NAME] to place [ NAME AND LOCATION OF FACILITY]
on EPA’s List of Violating Facilities (the List). The General
Counsel of EPA has reviewed the record of the listing proceeding
in accordance with 40 CFR §15.14(c) and determined that the
decision of the Case Examiner is correct based on the record as
a whole. A copy of the General Counsel’s decision, which consti-
tutes final agency action on the recommendation to list is enclosed.
[ INCLUDE in all letters:]
In accordance with 40 CFR §15.16, this letter is your notice
that [ NAME AND LOCATION OF FACILITY] has been placed on the List
of Violating Facilities as of [ DATEJ.
The effect of such a listing is that this facility shall not
be utilized in any new, renewed, or extended federal contract,
subcontract, grant, subgrarit, loan or subloan in an amount that
exceeds $100,000. Pursuant to various federal contract, grant
and loan regulations you will be required, in pre-award stipula-
tions or certifications, to represent that [ NAME AND LOCATION
OF FACILITY] is on the List.
Please be advised that pursuant to 40 CFR §15.22, you
may request that this facility be removed from the List. Such
a request must be in writing, addressed to me, the Listing
Official, and must set forth, with supporting documentation,
the proposed basis for removal consistent with the requirements
of 40 CFR §15.21. Enclosed is a more detailed description of the
requirements that a request for removal must meet.
Sincerely,
[ NAME]
Listing Official
enclosure [ s]
bcc: Regional Administrator
Region [ NUMBER]
Office of Regional Counsel
[ REGIONAL PROGRAM OFFICEJ
Director,
Office of Compliance Analysis and Program Operations
Associate Enforcement Counsel [ Air/Water]
[ Disk:Sneed 8/#16]
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Q
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Attachment Q
MODEL MEMORANDUM NOTIFYING LISTING CASE TEAM
OF DISCRETIONARY LISTING
MEMORANDUM
SUBJECT: Placement of [ NAME AND LOCATION OF FACILITY]
on EPA List of Violating Facilities
FROM: [ NAME]
Listing Official
TO: Addressees
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITYJ
The above—named facility has been placed on the EPA List
of Violating Facilities as a result of the discretionary
listing process. A copy of the determination placing the
facility on the List is attached. [ INCLUDE only if the
facility was listed under §c15.ll(a)(4),(a)(5) or (a)(6):J
Please be advised that this facility will automatically be
removed from the List after one year unless I am notified
within the one-year period that a basis for listing the
facility has arisen under § l5.ll(a)(1),(a)(2) or (a)(3).
Addressees:
Director,
Office of Compliance Analysis and
Program Operations
Associate Enforcement Counsel [ Air/Water]
Regional Administrator
Region [ NUMBER]
Office of Regional Counsel
[ REGIONAL PROGRAM OFFICE]
[ DISK:Sneed 9/#16]
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R
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Attachment R
MODEL NOTICE LETTER THAT RECOMMENDATION TO LIST HAS BEEN DENIED
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[ NAME AND ADDRESS OF
RECOMMENDING PERSON AND
OWNER, OPERATOR OR
SUPERVISOR OF FACILITY)
Re: Proposed Listing Declined
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
Dear [ NAME]:
On [ DATE], we sent you a Notice of Proposed Listing
advising you that the above-named facility was under consider-
ation for placement on the Environmental Protection Agency’s
List of Violating Facilities. In accordance with 40 CFR
15.l2(d), this notice is being sent to inform you that the
Assistant Administrator for Enforcement and Compliance Moni—
toring has declined to list [ NAME AND LOCATION OF FACILITY].
[ INSERT BASIS FOR AA’S DETERMINATION.] A copy of that
determination is enclosed.
Sincerely yours,
[ NAME]
Listing Official
enclosure
bcc: Director,
Office of Compliance Analysis and Program Operations
Associate Enforcement Counsel [ Air/Water or both]
Regional Administrator
Region [ NUMBER]
Office of Regional Counsel
[ Regional Program Office]
[ Disk:Sneed 8/#17]
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S
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Attachment S
MODEL DESIGNATION OF CASE EXAMINER FOR LISTING PROCEEDING
MEMORANDUM
SUBJECT: Appointment of Case Examiner for Listing Proceeding
FROM: [ NAMEJ
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: [ NAME OF CASE EXAMINER]
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
The purpose of this memorandum is to confirm your appointment
as Case Examiner for the listing proceeding involving the above-
named facility, scheduled for [ TIME] on [ DATE] in [ LOCATION)
pursuant to [ Section 306 of the Clean Air Act/Section 508 of the
Clean Water Act] and 40 CFR Part 15. As Case Examiner, you will
preside over the listing proceeding and issue a written decision
within 30 days after the record closes.
Thank you for agreeing to serve as Case Examiner. If you
have any questions, please contact [ NAME], the Listing Official,
at FTS—475—8777.
cc: [ NAME OF CASE EXAMINER’S SUPERVISOR]
Listing Official
Regional Administrator
Region [ NUMBER)
Office of Regional Counsel
[ REGIoNr r PROGRAM OFFICE]
[ Disk:srieed 8/#l8J
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T
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Attachment T
MODEL NOTICE LETTER OF DATE, TIME AND LOCATION OF LISTING PROCEEDING
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[ NAME AND ADDRESS OF
RECOMMENDING PERSON
OR PERSON REQUESTING A
LISTING PROCEEDING]
Re: Date, Time and Location of Listing Proceeding
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
Dear [ NAME]:
In accordance with 40 CFR §15.12(b), this notice is being
sent to inform you that a listing proceeding to consider the
recommendation to place the [ NAME OF FACILITY AND LOCATION] on
the Environmental Protection Agency’s List of Violating Facili-
ties will be held on [ DATE] at [ TIME] in [ PLACE]. Pursuant. to
40 CFR §15.13(b), this will be an informal proceeding without
formal rules of evidence or procedure.
Each party may be represented by counsel and may present
oral and written evidence relevant to the proposed listing.
Seven days prior to the listing proceeding, each party is
required to provide all other parties and the Listing Official
with copies of any documents to be presented at the listing
proceeding. Complete rules governing the listing proceeding
may be found at 40 CFR Part 15.
Please notify me immediately at (202) 475—8777 if you have
any questions concerning the listing proceeding.
Sincerely,
[ NAMEJ
Listing Official
bcc: [ CASE EXAMINER]
[ LISTING CASE TEAM]
[ Disk:Sneed 8/#19]
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U
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Attachment U
MODEL NOTICE LETTER OF CASE EXAMINER’S DECISION
IN LISTING PROCEEDING
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[ NAME AND ADDRESS OF
RECOMMENDING PERSON OR
PERSON REQUESTING THE
LISTING PROCEEDING]
Re: Case Examiner’s Decision
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
Dear [ NAME]:
On [ DATE] a listing proceeding was held before Case Examiner
[ NAME] to consider the recommendation to place the above-named
facility on the Environmental Protection Agency’s (EPA) List of
Violating Facilities (the List). In accordance with 40 CFR
§15.13(d) this notice is being sent to inform you of the Case
Examiner’s determination that the record shows by a preponderance
of the evidence that an adequate basis [ exists/does not exist] to
place [ NAME OF FACILITY AND LOCATION] on the List. A copy of the
Case Examiner’s decision is enclosed.
[ INCLUDE the following if the decision of the Case
Examiner is adverse to the owner/operator of the facility:]
Please be advised that pursuant to 40 CFR §15.14, the owner,
operator or supervisor of the facility may file a written request
addressed to me, the Listing Official, asking the General Counsel
of EPA to review the Case Examiner’s decision. That written
request must be filed within 30 days of the date you received
this letter . The request must contain a statement of the issues
presented by the recommendation to list, a statement of the case
and the facts involved jr-i the recommendation to list, and a
statement showing why the decision of the Case Examiner is not
correct based upon the record of the listing proceeding as a
whole. Regulations governing this review procedure may be found
at 40 CFR §15.14
Sincerely,
[ NAME]
Listing Official
enclosure
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2 Attachment u, p. 2
bcc: Regional Administrator
Region [ NUMBER]
Office of Regional Counsel
[ REGIONAL PROGRAM OFFICE]
Director,
Office of Compliance Analysis and Program Operations
Associate Enforcement Counsel [ Air/Water]
[ t AME]
Case Examiner
[ DISK:Sneed 8/#20J
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V
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Attachment V
MODEL MEMORANDUM REQUESTING COMMENTS ON
REQUEST FOR OGC REVIEW
MEMORANDUM*
SUBJECT: Request for Comments on Facility’s Request
for OGC Review of Determination to List
FROM: [ NAME]
Listing Official
TO: [ NAME]
Associate Enforcement Counsel [ Air/Water or both]
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
On [ DATE], a listing proceeding was held before Case Examiner
[ NAME] to consider the recommendation to place the above—named
facility on the EPA List of Violating Facilities. Following the
listing proceeding, the Case Examiner issued a decision to list
the facility. Pursuant to 40 CFR §15.14, [ NAME AND TITLE] has
requested the Office of General Counsel to review that decision.
To assist OGC in conducting that review, I am requesting that you
review the attached copy of the facility’s request for OGC review
and return your comments to me within 7 days so that I can
forward them to OGC.
Thank you for your assistance in this effort.
[ *Use letter format if the recommending person is not an employee
of EPA.]
[ DISK:Sneed 8/#21]
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w
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Attachment W
MODEL MEMORANDUM ASKING THE OFFICE OF REGIONAL COUNSEL
TO DRAFT TI-fE AGENCY’S RESPONSE TO A REQUEST FOR OGC REVIEW
MEMORANDUM
SUBJECT: Preparation of the Agency’s Response to a
Request for OGC Review of A Listing Determination
FROM: [ NAME]
Listing Official
TO: [ NAME]
Regional Counsel
Region [ NUMBER]
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
On [ DATE], a listing proceeding was held before Case Examiner
[ NAME] to consider the recommendation to place the above-named
facility on the EPA List of Violating Facilities. Following the
listing proceeding, the Case Examiner issued a decision to list
the facility. Pursuant to 40 CFR §15.14, [ NAME AND TITLE] has
requested the Office of General Counsel to review that decision.
Attached is a copy of the facility’s request for OGC review.
Please examine it and prepare a response on behalf of the Agency
to the issues raised in the request for review. To assist you in
preparing that document, I am sending you all comments that have
been received regarding the request for review. Please submit
the response to me within 7 days of the date you receive this
memorandum so that OGC will receive it in enough time to complete
its review in time to meet the guidelines established by the
regulations.
Thank you for your assistance in this effort.
Attachments
[ Disk:Sneed 9/#21]
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Attachment X
MODEL MEMORANDUM TRANSMITTING TO GENERAL COUNSEL A REQUEST
FOR REVIEW OF CASE EXAMINER’S DECISION IN LISTING PROCEEDING
MEMORANDUM
SUBJECT: Transmittal of [ NAME OF PERSON REQUESTING OGC REVIEW]
Request for Review of the Case Examiner’s Decision
in Listing Proceeding—-- [ NAME OF FACILITY]
FROM: [ NAME]
Listing Official
TO: [ NAME]
General Counsel
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
Background and Authority
Section 306 of the Clean Air Act (CAA) (42 U.S.C. §7606),
Section 508 of the Clean Water Act (CwA) (33 U.S.C. §1368),
Executive Order 11738 (38 Fed. Reg. 25161, September 12, 1973),
and 40 CFR Part 15 provide EPA with the authority to prohibit
facilities violating either of these acts from receiving federal
government contracts, grants, or loans. The implementation of
this authority, known as the “Listing Program,” is designed to
ensure that federal agencies’ procurement programs are conducted
“in a manner that will result in effective enforcement of the
Clean Air Act. . .and the Clean Water Act.. .and does not favor
firms where production costs may be lower due to noncompliance.”
40 CFR §15.1(a).
Pursuant to 40 CFR §15.14, [ NAME OF PERSON REQUESTING OGC
REVIEW] requested a review of the Case Examiner’s decision in a
listing proceeding. That request is being transmitted under
separate cover to [ NAME OF OGC ATTORNEY] of your staff. The
listing proceeding was conducted to determine whether [ NAME AND
LOCATION OF FACILITY] should be placed on EPA’s List of Violating
Facilities (the List) for violations of the [ Clean Air Act/Clean
Water Act]. The test established by 40 CFR §15.l3(b)(3) is
whether the record showed by “a preponderance of the evidence
that there is a record of continuing or recurring noncompliance
at the facility named in the recommendation to list and that the
requisite enforcement action has been taken” by EPA or the State
to provide the facility with the opportunity to comply with CAA
or CWA requirements before the listing process was begun. If,
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2 Attachment X, p. 2
as a result of such a proceeding, the deciding official—— the
Case Examiner—— determines that this two—part test is met, the
facility is placed on the List. Once placed on the List, the
facility may not receive future federal contracts, grants or
loans. Single-year contracts, grants or loans already in
effect at the time of listing are not affected.
Request for Review
A listing proceeding was held on [ DATE] in accordance with
the provisions of 40 CFR Part 15. On [ DATEJ, the Case Examiner
rendered his decision to list the [ NAME AND LOCATION OF FACILITYJ.
The regulations provide that the Case Examiner’s decision
constitutes final agency action unless a timely request for
review is filed with the Listing Official. [ NAME OF PERSON
REQUESTING OGC REVIEW] has filed a timely request for review.
Pursuant to 40 CFR §15.14(c), I am forwarding that request to
the Office of General Counsel (OGC). The regulation states that
this review is not a de novo review, but is “to determine if the
decision of the Case Examiner is correct based on the record of
the listing proceeding considered as a whole.” 40 CFR §15.14(c).
Procedural Matters
The regulations state that your Office shall issue its
decision “ [ a]s soon as practicable,” 40 CFR §15.14(c), and
file it with the Listing Official. [ NAME OF OPPOSING PERSON]
has filed a response to the request for review. With this
memorandum, I am transmitting to [ NAME OF OGC ATTORNEY] of
your staff the documents necessary to conduct OGC’s review.
The package includes the Case Examiner’s decision, the request
for review, Agency coments on the request for review, the
Agency’s response to the request for review, the record from
the listing proceeding, and a copy of the current regulations.
Please submit your Office’s decision to me within 30
days of receipt of this package. I will distribute copies of
it to the parties. Also, after your Office has made its
decision, please return the record of the listing proceeding
to me. Thank you for your prompt attention to this matter.
Attachments
CC: Assistant Administrator for
Enforcement and Compliance Monitoring
Regional Administrator
Region [ NUMBER]
Office of Regional Counsel
[ REGIONAL PROGRAM OFFICE]
Director,
Office of Compliance Analysis and Program Operations
Associate Enforcement Counsel [ Air/Water]
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Attachment Y
MODEL NOTICE LETTER OF GENERAL COUNSEL’S DECISION
REVIEWING CASE EXAMINER’S DECISION TO LIST
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[ NAME AND ADDRESS OF
RECOMMENDING PERSON OR
OWNER/OPERATOR OF FACILITYJ
Re: Final Agency Action on Listing Recommendation
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITYJ
Dear [ NAME]:
On [ DATE], [ NAME/you] requested that the Office of General
Counsel of the Environmental Protection Agency (EPA) review a
decision of Case Examiner [ NAME] to place [ NAME AND LOCATION OF
FACILITY] on EPA’s List of Violating Facilities. The General
Counsel of EPA has reviewed the record in the listing proceeding
in accordance with 40 CFR §15.14(c) and has determined that the
decision of the Case Examiner is not correct based on the record as
a whole. Consequently, the recommendation to list [ NAME AND
LOCATION OF FACILITY] is denied. A copy of the General Counsel’s
decision is enclosed.
Sincerely,
[ NAME]
Listing Official
enclosure
bcc: [ CASE EXAMINER]
Assistant Administrator for
Enforcement and Compliance Monitoring
Regional Administrator
Region [ NUMBER]
Office of Regional Counsel
[ REGIONAL PROGRAM OFFICE]
Director,
Office of Compliance Analysis and Program Operations
Associate Enforcement Counsel [ Air/Water]
[ Disk:Sneed 8/#23]
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Attachment Z
MODEL NOTICE LETTER OF EFFECTIVE DATE OF REMOVAL
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[ NAME AND ADDRESS OF
RECOMMENDING PERSON,
OWNER, OPERATOR OR SUPERVISOR OF FACILITY
OR PERSON WHO REQUESTED REMOVAL)
Re: Notice of Removal from the
List of Violating Facilities
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
Dear [ NAME]:
[ INCLUDE only if removal results from reversal
of criminal/civil basis for listing:]
On [ DATE], a request for removal was filed with me, the
Environmental Protection Agency’s (EPA) Listing Official, on
the basis of the reversal of [ DESCRIBE the conviction or
court decree that was reversed]. I have obtained a copy of
the court order reversing the [ conviction/decree] and con-
clude that there is no longer a basis for listing the above—
named facility. Therefore, effective as of the date of this
letter, [ NAME AND LOCATION OF FACILITY] shall be removed from
the EPA List of Violating Facilities).
[ USE ONLY if removal is AUTOMATIC under §15.21(a)(3):J
On [ DATE], [ NAME AND LOCATION OF FACILITY] was placed on
the Environmental Protection Agency’s List of Violating Facilities
(the List) as a result of continuing or recurring violations of
clean air or clean water standards despite [ DESCRIBE THE RELEVANT
ENFORCEMENT ACTION). Pursuant to 40 CFR §15.21(a)(3), [ NAME AND
LOCATION OF FACILITY] shall be removed from the List automatically
one year after listing provided no basis for bringing a listing
action has occurred within that one—year period. Since [ NAME
AND LOCATION OF FACILITY] has satisfied the requirements for
removal under §l5.21(a)(3), that facility shall be removed from
the List effective as of the date of this letter. -
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—2— Attachment Z, p. 2
[ USE ONLY if removal is the result of
action by the Assistant Administrator:]
This letter is to notify you that [ NAME OF FACILITYJ has been
removed from the United States Environmental Protection Agency’s
List of Violating Facilities pursuant to 40 CFR [ l5.20/*l5.2l].
This removal is based on a [ certification/determination] (enclosed)
by the Assistant Administrator for Enforcement and Compliance
Monitoring that the conditions which gave rise to the listing have
been corrected. The effective date of removal is the date the
certification was signed.
[ INCLUDE in all letters:]
If you have any questions, please feel free to contact me.
I may be reached by telephone at (202) 475—8777.
Sincerely yours,
[ NAME]
Listing Official
enclosure
bcc: Assistant Administrator for
Enforcement and Compliance Monitoring
Regional Administrator
Region [ NUMBER]
Office of Regional Counsel
[ REGIONAL PROGRAM OFFICE]
Director,
Office of Compliance Analysis and Program Operations
Associate Enforcement Counsel [ Air/Water]
[ Disk:Srieed 8/#26J
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A
A
-------
Attachment AA
MODEL LETTER ACKNOWLEDGING RECEIPT OF REMOVAL REQUEST
[ NAME AND ADDRESS OF
PERSON REQUESTING
REMOVAL]
Re: Receipt of Request for Removal
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
Dear [ NAME]:
Thank you for your letter dated [ DATE], in which you re-
quested that the Environmental Protection Agency (EPA) remove the
above—named facility from its List of Violating Facilities (the
List). The facility was listed pursuant to Title 40, Section
[ 15.lO/15.llJ of the Code of Federal Regulations, following
[ DESCRIBE SPECIFIC STATUTORY PROVISION(S) UNDER WHICH THE CON-
VICTION OR CIVIL VIOLATION GIVING RISE TO LISTING OCCURRED.]
[ INCLUDE only if the facility is on the list
as a result of mandatory listing:]
Section 15.20 of the regulations governing the Contractor
Listing Program provides that, once listed, a facility “shall
remain on the List of Violating Facilities until the [ EPA] Assis-
tant Administrator [ for Enforcement and Compliance Monitoring]
certifies that the condition giving rise to mandatory listing
has been corrected.”
[ INCLUDE only if the facility is on the list
as a result of discretionary listing:]
Section 15.21 of the regulations governing the Contractor
Listing Program provides that, once listed, a facility placed
on the List of Violating Facilities on the basis of a discre-
tionary listing under 40 CFR §15.11 shall be removed from the
List: “(1) If the conviction, decree, order, judgment or other
form of civil ruling or finding which formed the basis for the
discretionary listing under §15.11(a) has been reversed or other-
wise modified to remove the basis for discretionary listing;
(2) If the Assistant Administrator [ for Enforcement and Compliance
Monitoring] has determined that the condition(s) which gave rise
to discretionary listing have been corrected; or, (3) Automati—
cally after one year of discretionary listing under §15.l1(a)(4),
(a)(5) or (a)(6)....” Furthermore, a facility shall be removed
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—2— Attachernent AA, p. 2
from the list “if the Assistant Administrator [ for Enforcement
and Compliance Monitoring] determines that the facility is on a
plan for compliance which will ensure that the condition(s)
which gave rise to discretionary listing will be corrected.”
[ INCLUDE in all letters:]
Section 15.22 of the regulations provides that a request
for removal “must set forth the proposed basis for removal from
the List under Section [ 15.20..../.. .15.21.]”
[ INCLUDE only if removal is sought on the basis of
correcting the condition giving rise to listirig:J
Enclosed is a more detailed description of the requirements
that a request for removal must meet. In general, though, a
request should describe, with supporting documentation, any
modifications to plant, equipment or procedures that have been
undertaken to correct the condition which gave rise to the list-
ing. It should include evidence demonstrating that the facility
can operate and is operating in accordance with the requirements
of [ DESCRIBE SPECIFIC STATUTORY PROVISION UNDER WHICH THE VIOLATION
OCCURRED] and EPA regulations promulgated thereunder. Informa-
tion submitted must be signed, sworn, and include an acknowledgment
that your statement and supporting information is being submitted
in regard to a matter within the jurisdiction of this Agency, and
is subject to Title 18, United States Code, Section 1001.
[ INCLUDE in all letters:]
While this letter acknowledges receipt of your request for
removal, your request has not yet been evaluated to determine if
it meets the requirements outlined above. However, please be
advised that the failure of EPA to act on your request for re-
moval within 45 days from [ DATE REQUEST RECEIVED], constitutes an
automatic denial of your request, permitting you to obtain a removal
hearing before a Case Examiner, provided you request such a
hearing within 30 days after the request is denied. If you have
any questions on removal procedures please contact me at (202)
475—8777.
Sincerely,
[ NAME]
Listing Official
[ enclosure]
cc: [ ORIGINAL RECOMMENDING PERSON]
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—3-. Attachement AA, p. 3
bcc: Regional Administrator
Region [ NUMBER]
Office of Regional Counsel
[ REGIO AL PROGR 1 OFFICE]
Associate Enforcement Counsel [ Air/Water]
[ Disk:Sneed 8/#28]
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19
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Attachment BB
MODEL MEMORANDUM REQUESTING COMMEI .1TS ON REQUEST FOR REMOVAL
MEMORANDUM *
SUBJECT: Request for Comments on Request to Remove Facility
from the EPA List of Violating Facilities
FROM [ NAME]
Listing Official
TO: Addressees*
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
On [ DATE], a request to remove the above—named facility from
the Environmental Protection Agency’s (EPA) List of Violating
Facilities was filed. At this time, I am soliciting your comments
on the attached request. Please address your comments to the
following questions identifying the documents upon which you base
your comments. Please return your comments to me within 10 days.
[ INCLUDE only if the request for removal is based on
correcting the condition giving rise to listing:]
o What are the technical circumstances at the
above-named facility that constituted the
‘condition,” as described in the policy
defining condition, which gave rise to the
listing under the [ Clean Air Act/Clean Water
Act]?
o What actions must the facility take tocorrect
the condition which gave rise to the listing
under the policy on correction?
o Has the facility taken such actions? What is
the basis for your judgment?
o If not, what actions remain to be taken that
would enable the Assistant Administrator to
conclude that “the condition(s) which gave
rise to [ mandatory/discretionary] listing has
been corrected” in accordance with the policy
defining correction?
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—2— Attachment BB, P. 2
° What is the current status of the facility’s
compliance with the [ Clean Air Act/Clean Water Act]
requirements which it was found to be violating?
Nave any violations occurred since [ DATE], the
date on which the facility was placed on the
List.
o What inspections have taken place at the
facility since the date of the violation and
which inspections satisfy the requirements of
the policy on independent verification?
[ INCLUDE only if removal is based on a plan for
compliance following discretionary listing:]
o How will the plan ensure that the facility
will achieve compliance?
o Are interim goals adequate to prevent harm
to individuals or significant harm to the
environment?
o What mechanisms are available to enforce the
obligation to come into compliance?
Mdressees:
P ssociate Enforcement Counsel [ Air/Water]
Regional Administrator
Region [ NUMBER]
Office of Regional Counsel
[ REGIONAL PROGRAM OFFICE]
[ *Use letter format if the comments of
persons not on the staff of EPA are sought:]
[ ORIGINAL RECOMMENDING PERSON)*
[ OWNER, OPERATOR, SUPERVISOR OF FACILITY]*
[ Disk:Sneed 8/#29]
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C
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Attachment cc
REQUEST TO REGION TO PREPARE FORMAL
RECOMMENDATION ON REQUEST FOR REMOVAL
MEMORANDUM
SUBJECT: Request to Prepare Formal Recomn endation on Request to
Remove Facility from the List of Violating Facilities
FROM: [ NAME]
Listing Official
TO: [ NAMEJ
Regional Administrator
Region [ NUMBER]
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITYJ
The attached request to remove the above—named facility
located in your region from the EPA List of Violating Facilities
(the List) is being sent to you to prepare a formal recommendation
on whether the request should be granted by the Assistant Adminis-
trator for Enforcement and Compliance Monitoring. I am also
sending you copies of all comments made by staff concerning the
removal request.
Your formal recommendation should contain: (i) a background
section that briefly summarizes the history of the facility and
proposed resolution of the case; (ii) specific factual findings
covering all major events in the case including technical infor-
mation bearing on the formal recommendation covering the period
Erom the date of the original. violation to the present time, and
all expected events and test results under a compliance plan
approved by EPA (any consent decree, probation order, administra-
tive order, performance guarantee, or permit evidencing the
compliance schedule should be attached to the recommendation); and
(iii) a conclusion setting forth the recommended determination.
A sample of a formal recommendation has been attached to this
memorandum to provide additional guidance on what is needed.
In addition to preparing the formal recommendation, you
should prepare a summary of the documentation used in preparing
your recommendation. The summary should; describe the fa-cility;
identify, in accordance with the policy defining condition, the
specific technical condition that gave rise to listing and the
manner in which the condition has been or is being corrected;
describe the status of the facility’s efforts to correct the
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-2- Attachment cc, P. 2
Condition; identify all inspections made and whether they satisfy
the policy on independent verification; identify, in outline form,
the source of all information which bears on the determination as
well as the comments of state or local agencies; and identify any
special factors that should be considered. A sample summary of
documentation also is attached.
Finally, you should acknowledge that you have reviewed the
formal reconinlendation by signing and dating it. Please send your
recommendation to me within 15 days of the date of this memorandum
so that I can draft a determination for the Assistant Administra-
tor’s signature, obtain all, necessary Headquarters approvals and
submit the draft determination to the Assistant Administrator in
time to meet the 45-day limit contained in the regulations.
Attachments
[ Disk:Sneed B/#30J
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D
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Attachment DD
SAMPLE FORMAL RECOMMENDATION FROM REGION ON
REQUEST TO REMOVE FACILITY FROM THE LIST OF VIOLATING FACILITIES
MEMORANDUM
SUBJECT: Formal Recommendation on Request to Remove
[ NAME AND LOCATION OF FACILITY] from the List
FROM: [ NAME]
Regional Administrator
Region XII
TO: [ NAME]
Listing Official
Docket No. 00000000
Facility: XYZ Company, Inc., [ LOCATION]
On [ DATE], you forwarded to me a request to remove the above—
named facility from the EPA List of Violating Facilities. I have
reviewed that document and make the following formal recommenda-
tion on the removal request.
BACKGROUND
On February 30, 1986, XYZ Company’s facility was placed on
Sublist One of EPA’s List of Violating Facilities (the List)
based upon a conviction obtained against the facility under
Section 309(c)(l) of the Clean Water Act. The conviction arose
out of the ilLegal dumping of soils contaminated with a wood
preservative near a creek resulting in illegal discharges to the
navigable waters of the United States. The facility claims that
it has corrected the condition giving rise to listing by collect-
irig the contaminated soils and disposing of them according to
state hazardous waste reguLations. The facility also claims that
it no longer uses the wood preservative in its processes. For
the reasons stated below, I formally recommend that this facility
be removed from the List.
FINDINGS
XYZ Company is a supplier of landscape materials to home-
owners, home builders arid professional laridscapers. In the
course of its business, the company treated timbers in a preserva-
tive known as Gunk (gunk). On February 30, 1986, XYZ Company was
convicted under Section 309 of the Clean Water Act for its actions
on June 31, 1985, in spilling a mixture of diesel fuel and gunk at
the company’s yard and dispersing the spilled material five miles
away on a private farm located near a creek. Pursuant to the
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2 Attachment DD, P. 2
Clean Water Act, Section 508, 33 U.S.C. l368, and 40 CFR 15.10,
the XYZ Company facility was placed on the Environmental Protection
Agency’s List of Violating Facilities as a result of the conviction
under Section 309(c)(l).
On September 31, 1986, XYZ Company, through its attorney,
requested pursuant to 40 CFR l5.22 that its facility be removed
from the List of Violating Facilities, based on the claim that
the condition which gave rise to the listing has been corrected.
The request was based on the assertion that gunk was rio longer
used at the plant, and that gunk contamination caused by the
spill had been corrected. I have reviewed XYZ Company’s request,
and conclude that there is adequate evidence that the conditions
which gave rise to mandatory listing have been corrected at the
XYZ Company facility. This conclusion is supported by the following:
A notarized affidavit of the company president attached to
the removal request of XYZ COMPANY states, pursuant to 18 U.S.C.
l0Ol, that the facility no longer treats or preserves railroad
ties or landscaping lumbers with gunk. Contaminated soils were
removed and disposed of in accordance with state hazardous waste
regulations. The company obtained manifests and shipped the
contaminated material in covered trucks to an approved hazardous
waste disposal facility. The removal request contained copies
of these manifests.
On November 31, 1985, state health department employees,
accompanied by employees from XYZ Company, took soil samples from
the two dump sites at the farm. The samples were retained by the
health department until December 12, when they were relinquished
to an analytical laboratory. These test results are attached to
the removal request. No gunk was detected in either sample, down
to the limits of detectability of the instrumentation.
On April 31, 1986, seven additional soil samples were taken
at the XYZ Company yard, at points where the material had been
originally spilled, and where it had been placed upon return from
the farm. These test results are also attached to the removal
request. The test results again indicated no presence of gunk
down to the limits of detectability of the instrumentation.
In a letter dated September 31, 1986, from the state
department of health to the Assistant Administrator for Enforce-
ment arid Compliance Monitoring, state officials asserted that
the spilled material and contaminated soil has been cleaned up
and disposed of as hazardous waste. The letter further stated
that it was their understanding that XYZ Company’s facility no
longer handles any form of toxic or hazardous material, and that
XYZ Company rio longer treats railroad ties with any form of wood
preservative.
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3 Attachment DD, P. 3
CONCLUSION
Based on these comments and the findings discussed above I
conclude that the conditions which gave rise to mandatory listing
have been corrected at the XYZ Company’s facility. Therefore, I
formally recommend that the facility be removed from the EPA List
Of Violating Facilities.
[ NAME ]
Regional Administrator
Region XII
Dated:
[ Disk:Sneed 9/#14J
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E
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Attachment EE
SAMPLE SUMMARY OF SUPPORTING DOCUMENTATION
FOR REMOVAL REQUEST
Summary of Documentation Supporting Formal Recommendation
on Request to Remove Facility from the
EPA List of Violating Facilities
Docket No. 00000000
Facility: XYZ Company, Inc., [ FACILITY NAME, LOCATION]
I. THE FACILITY
A. Type :
This removal request involves a supplier of landscape
materials to the homeowner, the home builder and to professional
landscapers. In the course of its business, the company
treated timbers in a preservative known as Gunk (gunk).
B. Ownership :
The facility is owned by XYZ Company, incorporated. The
president of XYZ is [ NAME] and the vice—president for opera-
tions, [ NAME], has responsibility for environmental matters
concerning the facility.
II. CORRECTION OF THE CONDITION GIVING RISE TO LISTING
A. The Condition Giving Rise to Listing :
On June 31, 1985, XYZ Company spilled a mixture of diesel
fuel and gunk at the company yard and then disposed of the
spilled material five miLes away near a creek on a private
farm. On February 30, 1986, XYZ Company was convicted under
Section 309 of the Clean Water Act as a result of the June
31, 1985 spill and disposal of the spilled material in a
manner that resulted in illegal discharges to the navigable
waters.
On February 30, 1986, pursuant to the Clean Water Act,
Section 508, 33 U.S.C. §1368, and 40 CFR §15.10, XYZ
Company’s facility was placed on Sublist One of EPA’s
List of Violating Facilities (the List) based upon the
conviction.
The specific condition that gave rise to listing was
the improper disposal of spilled gunk in a manner that resulted
in illegal discharges to the navigable waters.
B. Correction of the Condition :
The facility has achieved physical correction of the con-
dition giving rise to listing by removing the contaminated
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2 Attachment EE, P. 2
soil from the farm and returning it t.o the facility. The soils
were then disposed of in accordance with state hazardous waste
regulations. Furthermore, the facility has ceased using gunk as a
preservative for its landscaping timbers.
C. Status
The facility has accomplished complete physical correction of
the condition that gave rise to mandatory listing and is in full
compliance with the Clean Water Act.
ru. VERIFICATION OF COMPLIANCE AND CERTIFICATION
A. Inspections
1. On November 31, 1985, state health department em-
ployees, accompanied by employees from XYZ Company, took soil
samples from the two dump sites at the farm. The samples were
retained by the health department until December 12, when they
were relinquished to an analytical laboratory. These test re-
sults showed that no gunk was detected in either sample, down to
the limits of detectability of the instrumentation. This inspec-
tion and test satisfy the requirements of the policy on verification
since the inspection was performed by the State and the testing
was performed by an independent third-party under contract to the
State.
2. On April 31, 1986, seven additional soil samples were
taken at the XYZ Company yard, at points where the material had
been originally spilled, and where it had been placed upon return
from the farm. The test results again indicated no presence of
gunk down to the limits of detectability of the instrumentation.
B. Certification
The XYZ Company president has submitted a notarized affi-
davit, pursuant to 18 U.S.c. lOO1, attached to the request for
removal stating that the facility no longer treats or preserves
railroad ties or landscaping lumbers with gunk and that contami-
nated soils were removed and disposed of in accordance with state
hazardous waste regulations.
IV. DOCUMENTS
The following documents were used in preparing the recommend-
ation to remove:
February 30, 1986 Letter to Facility Advising of Listing
May 15, 1986 Letter from DC & H, Attorneys for XYZ Company
May 15, 1986 Note to File from Listing Official Re:
Telephone Conversation
May 32, 1986 Letter from Listing Official to DC & H
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3 Attachment EE, p. 3
September 32, 1986 Letter from DC & H to Assistant
Administrator for Enforcement and Compliance
Monitoring Requesting Removal from the List.
The letter included the following enclosures:
1. The Prosecutor’s Statement At the Time of the
Plea Agreement in the Criminal Case
2. The Defendant’s Statement at the Time of the
Plea Agreement in the Criminal Case
3. A September 31, 1986 letter from the State
Department of Health
4. A July 32, 1986 Consent Agreement between XYZ
Company and the State Department of Health
5. A Copy of a Label Explaining the Use of Gunk
as a Wood Preservative
6. A History of XYZ Company, Inc.
December 32, 1986 Letter from DC & H to the Listing
Official with the following enclosures:
M Affidavit Executed by the President of XYZ
under the Provisions of 18 U.S.C. §100 ].
2. The Defendant’s Statement at the Time of the
Plea Agreement in the Criminal Case
3. A Photocopy of 18 U.S.C. §1001
4. Uniform Hazardous Waste Manifests
5. Copies of Sampling Results from Testing by
the State
6. Reports of Testing Conducted by ABC Labs for
the State
7. Federal Register Notices
8. A Copy of a September 31, 1986 Letter from
the State Department of Health to the Assist-
ant Administrator for Enforcement and Compli-
ance Monitoring
October 12, 1986 Note to File from Listing Official Re:
Telephone Conversation
October 32, 1986 Note to File from Listing Official Re:
Telephone Conversation
November 31, 1986 Recommendation for the Regional
Administrator for Region XII
November 31, 1986 Note to File from Listing Official Re:
Telephone Conversation
January 5, 1987 Note to File From Listing Official Re:
Telephone Conversation
January 12, 1987 Note to File From Listing Official Re:
Activities Related to Removal Request
January 16, 1987 Note to File From Listing Official Re:
Telephone Conversation
January 29, 1987 Memorandum from National Enforcement
Investigations Center
February 18, 1987 Note to Listing Official From EPA
Regional Office
March 26, 1987 Note to File from Listing Official Re:
Comments from Other EPA Officials
[ Disk:Sneed 9/#2J
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F
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Attactm ent FF
MODEL DETERMINATIOtS TO REMOVE FACILITY FROM THE LIST
List of Violating Facilities
Determination to Remove from List
Docket No. 00000000
Facility: x z Company, Iflc.7 FAcILITy NAME, LOCATION]
BACKGROUND
On February 30, 1986, XYZ Company’s facility was placed on
Sublist One of EPA’s List of Violating Facilities based upon a
conviction obtained against the facility under Section 3 09(c)(l)
of the Clean Water Act. On November 31, 1986, the Regional
Administrator, Region XII, recommended that the facility be
removed from the List of Violating Facilities pursuant to 40 CFR
§ l5.2O and 15.22 because the conditions which gave rise to the
listing have been corrected. This recommendation was concurred
in by the Associate Enforcement Counsel for Water, Office of
Enforcement and Compliance Monitoring.
EINDINGS
XYZ Company is a supplier of landscape materials to home-
owners, home builders and professional landscapers. In the
course of its business, the company treated timbers in a preserva-
tive known as Gunk (gunk). On February 30, 1986, XYZ Company was
convicted under Section 309 of the Clean Water Act for its actions
on June 31, 1985, in spilling a mixture of diesel fuel and gunk at
the company’s yard and dispersing the spilled material five miles
away on a private farm located near a creek. Pursuant to the
Clean Water Act, Section 508, 33 U.s.c. §1368, and 40 CFR §15.10,
the XYZ Company facility was placed on the Environmental Protection
Agency’s List of Violating Facilities as a result of the conviction
under Section 3 O9(c)(].).
On September 31, 1986, XYZ Company, through its attorney,
requested, pursuant to 40 CFR §15.22, that its facility be removed
from the List of Violating Facilities, based on the claim that
the condition which gave rise to the listing has been corrected.
The request was based on the assertion that gunk was no longer
used at the plant, and that gunk contamir tion caused by the
spill had been corrected.
I have reviewed x z Company’s request, and determine that,
for the following reasons, pursuant to 40 CFR §15.20, and the
findings discussed below, there is adequate evidence that; the
conditions which gave rise to mandatory listing have been cor-
rected at the XYZ Company facility:
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2 PLttachrnent FF, P. 2
A notarized affidavit of the company president attached to
the removal request of XYZ COMPANY states, pursuant to 18 U.S.C.
§1001, that the facility no longer treats or preserves railroad
ties or landscaping lumbers with gunk. Contaminated soils were
removed and disposed of in accordance with state hazardous waste
regulatLoris. The company obtained manifests and shipped the
contaminated material in covered trucks to an approved hazardous
waste disposal facility. The removal request contained copies
of these manifests.
On November 31, 1985, state health department employees,
accompanied by employees from XYZ Company, took soil samples from
the two dump sites at the farm. The samples were retained by the
health department until December 12, when they were relinquished
to an analytical laboratory. These test results are attached to
the removal request. No gunk was detected in either sample, down
to the limits of detectability of the instrumentation.
On April 31, 1986, seven additional soil samples were taken
at the XYZ Company yard, at points where the material had been
originally spilled, and where it had been placed upon return from
the farm. These test results are also attached to the removal
request. The test results again indicated no presence of gunk
down to the limits of detectability of the instrumentation.
In a letter dated September 31, 1986, from the state
department of health to the Assistant Administrator for Enforce—
rnent and Compliance Monitoring, state officials asserted that
the spilled material and contaminated soil has been cleaned up
and disposed of as hazardous waste. The letter further stated
that it was their understanding that XYZ Company’s facility no
longer handles any form of tocic or hazardous material, and that
XYZ Company no longer treats railroad ties with any form of wood
preservative.
On February 30, 1987, the Regional Administrator for
Region XII requested that the XYZ Company facility be removed
from the List based on his determination that cleanup of the
spill has been complete, arid that the discharged hazardous
materials are no longer used at the site.
CONCLUSION
Pursuant to 40 CFR Section 15.20 and based on the findings
discussed above, I hereby certify that the conditions which gave
rise to mandatory listing have been corrected at the XYZ Company’s
facility. Therefore, the XYZ Company’s facility is hereby removed
from the EPA List Of Violating Facilities.
t NAME]
Assistant Administrator for
Enforcement and Compliance Monitoring
Dated:
[ Disk:Sneed 9/#l]
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G
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Attachment GG
MODEL MEMORANDUM TRANSMITTING REMOVAL REQUEST AND
PROPOSED DETERMINATION FROM LISTfl4G OFFICIAL TO
ASSISTANT ADMINISTRATOR
MEMORANDUM
SUBJECT: Request for Removal From the List of Violating
Facilities-- [ NAME AND LOCATION OF FACILITY)
FROM: [ NAME)
Listing Official
TO: [ NAME]
Assistant Administrator for Enforcement
and Compliance Monitoring
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY)
On (DATE], I received a request to remove the above—named
facility from EPA’s List of Violating Facilities (the List).
I have reviewed the request to ensure that it is complete and
conforms to the regulations in 40 CFR Part 15. Based on the
information contained in the request and information provided
by the Region and headquarter’s staff, I am recommending that
you [ grant/deny] the request to remove the facility from the
List.
I am transmitting to you a package containing the request
for removal, the Region’s formal recommendation on the request
for removal, a proposed determination [ granting/denying] the
request to remove the facility from the List for your signa—
ture, arid a summary of the documentation supporting the
proposed determination.
Attachments
[ Dtsk Sneed 9/#3]
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H
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Attachment H}-!
MODEL BRIEFING OUTLINE ON REQUEST FOR REMOVAL
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITYJ
I. Background
A. Type of Facility:
B. Ownership:
C. Basis for Listing
1. [ Discretionary/Mandatory]
2. Nature of Violation
3. Condition Giving Rise to Listing
II. Basis for Removal
A. Correction of Condition: [ Physical/Scheduled Correction]
B. Verification of Correction: [ See Policy on VerificationJ
C. Certification by Officer of Facility: [ See Policy on Correction]
III. Recommendation and Concurrences
A. Request for Removal Filed By:
B. Regional Recommendation:
C. Recommendation Concurred in by:
1. Regional Administrator
2. Associate Enforcement Counsel
3. Senior Enforcement Counsel
4. Director OCAPO
IV. Special Considerations
A. Likelihood of Relisting
B. Financial Condition of Facility
[ Disk:Sneed 9/i 5]
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J
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Attachment JJ
MODEL NOTICE OF ASSISTANT ADMINISTRATOR’S
DECISION DENYING REMOVAL REQUEST
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[ NAME AND ADDRESS OF PERSON
REQUESTING REMOVAL]
Re: Action on Request for Removal from
EPA List of Violating Facilities
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
Dear [ NAME]:
On (DATE], you requested that the Environmental Protection
Agency (EPA) remove the above—named facility from EPA’s List
of Violating Facilities. In accordance with 40 CFR §15.22,
the ssistant Administrator for Enforcement and Compliance
Monitoring has reviewed your request and determined that the
request for removal should be denied. [ SUMMARIZE BASIS
OF DETERMINATION].
Please be advised that pursuant to 40 CFR §15.23, you
may file a written request for a removal hearing before a Case
Examiner to determine if your request for removal should be
granted. Such a request should be addressed to me, the Listing
Official, LE—130A, 401 M Street, S.W., Washington, D.C. 20460,
and must be received within 30 calendar days of the date you
received this letter. Although the removal hearing is informal
without formal rules of evidence, the parties may be represented
by counsel and may present oral and written evidence relevant
to the removal request. I direct your attention to the regula-
tions set forth at 40 CFR Part 15 for a fuller explanation of
the removal process.
Sincerely yours,
[ NAME]
Listing Official
[ Disk:Sneed 91*4]
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K
-------
Attaci-unent KK
MODEL MEMORANDUM ASKING FOR COMMENTS ON
REQUEST FOR REMOVAL
MEMORANDUM *
SUBJECT: Request For Comments on Request for Removal
FROM: [ NAME]
Listing Official
TO: Addressees*
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITYJ
I have received a request to remove the above—named facility
from the EPA List of Violating facilities. Your comments on the
attached request for removal are needed to prepare the Agency’s
response. A timely response is essential since the regulations
governing the listing program establish a goal of responding to
removal requests within 45 days after they are received. Con—
sequenti.y, please examine the request and forward any comments to
me wIthin 10 days.
Thank you for your assistance in this effort.
Attachment
Addressees:
Regional Administrator
Region [ NUMBER]
Office of Regional Counsel
[ REGIONAL PROGRAM OFFICE]
Associate Enforcement Counsel [ Air/Water]
[ *Use letter format if information is
sought from persons who are not EPA staff.]
[ OWNER, OPERATOR OR SUPERVISE OF FACILITY]
[ ORIGINAL RECOMMENDING PERSONJ
[ Disk:Srieecj 9/ 19J
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L
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Attachment LL
PLSSISThNT ADMINISTRATOR DENIES REMOVAL
FINAL AGENCY ACTION
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
(NAME AND ADDRESS OF
RECOMMENDING PERSON,
OWNER, OPERATOR OR SUPERVISOR OF FACILITY
OR PERSON WHO REQUESTED REMOVAL]
Re: Final Agency Action Denying Removal
from the List of Violating Facilities
Docket No. [ NUMBER )
Facility: [ NAME AND LOCATION OF FACILITY]
Dear [ NAME]:
On [ DATE], in response to a previously filed request to
remove the above—named facility from the Environmental Protection
Agency’s (EPA) List of Violating Facilities, the Assistant
Administrator for Enforcement and Compliance Monitoring determined
that the request for removal should be denied. You received a
letter from me on [ DATE] informing you of this decision and the
opportunity to request in writing, within 30 days from that date,
a removal hearing before a Case Examiner to determine whether
removal should be granted.
Thirty days have passed since you received notice of the
determination of the Assistant Administrator arid a removal
hearing has not been requested. Consequently, your right to
obtain a removal hearing on this request for removal has termi-
nated. The previously filed decision of the Assistant Administra-
tor constitutes final Agency action on this request for removal.
However, any person who may make a request for removal under
40 CFR §15.22 may file a new request for removal based on new
information.
Sincerely yours,
[ NAME)
Listing Official
enclosure
bcc: Assistant Administrator for
Enforcement and Compliance Monitoring
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—2— Attachment LL, p. 2
Regional Administrator
Region [ NUMBER]
Office of Regional Counsel
[ REGIONAL PROGRA1 i OFFICE]
Director,
Office of Compliance Analysis and Program Operations
Associate Enforcement Counsel [ Air/Water]
[ Disk:Srieed 81*27]
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M
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Attachment MM
MODEL DESIGNATION OF CASE EXAMINER FOR REMOVAL HEARING
MEMORANDUM
SUBJECT: Appointment of Case Examiner for Removal Hearing
PROM: [ NAME]
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: [ NAME OF CASE EXAMINER]
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
The purpose of this memorandum is to confirm your appointment
as Case Examiner for the removal hearing involving the above—named
facility. The hearing is scheduled for [ TIME] on [ DATE] in
[ LOCATION] pursuant to [ Section 306 of the Clean Air Act/Section
508 of the Clean Water Act] and 40 CFR Part 15. As Case Examiner,
you will preside over the removal hearing and issue a written
decision as soon as practicable after the close of the record with
a target of filing the decision no later than 30 days after the
record closes.
Thank you for your involvement in this hearing. If you have
any questions, please contact [ NAME], the Listing Official, at
FTS—475—8 777.
cc: [ NAME OF CASE EXAMINER’S SUPERVISOR]
Listing Official
Regional Administrator
Region [ NUMBER]
Office of Regional Counsel
[ REGIONAL PROGRAM OFFICE]
[ Disk:Sneed 9/#6]
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N
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Attachment NN
MODEL NOTICE LETTER OF DATE, TIME AND LOCATION OF REMOVAL HEARING
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[ NAME AND ADDRESS OF
RECOMMENDING PERSON
OR PERSON REQUESTING
REMOVAL HEARING]
Re: Date, Time and Location of Removal Hearing
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
Dear [ NAME]:
In accordance with 40 CFR §15.24, this notice is being sent
to inform you that a removal hearing to consider the request to
remove the above—named facility from the Environmental Protection
Agency’s List of Violating Facilities will be held on [ DATE] at
[ TIME] in [ PLACE]. Pursuant to 40 CFR §15.24, this will be an
informal hearing without formal rules of evidence or procedure.
Each party may be represented by counsel and may present oral and
written evidence relevant to the proposed removal. Complete
rules governing the removal hearing may be found at 40 CFR Part 15.
Please notify me immediately at (202) 475—8777 if you have
any questions concerning the removal hearing.
Sincerely,
[ ME]
Listing Official
bcc: [ CASE EXAMINER]
[ REMOVAL CASE TEAM]
[ STATE OR LOCAL AUTHORITY RESPONSIBLE FOR
ENFORCING CLEAN WATER OR CLEAN AIR STANDARDS]
[ Disk:Sneed 9/#7]
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0
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Attachment 00
MODEL NOTICE LETTER OF CASE EXAMINER’S DECISION IN REMOVAL HEARING
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[ NAME AND ADDRESS OF
REQUESTING PERSON OR
RECOMMENDING PERSON]
Re: Case Examiner’s Decision in the Removal Hearing
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
Dear [ NAME]:
On [ DATE], a removal hearing was held before Case Examiner
[ NpJ4EJ to consider a request to remove the above-named facility
from the Environmental Protection Agency’s (EPA) List of Violat-
ing Facilities (the List). In accordance with 40 CFR *15.24(d),
this notice is being sent to inform you of the Case Examiner’s
determination that the record shows by a preponderance of the
evidence that an adequate basis [ exists/does not exist] to remove
the above—named facility from the List. A copy of the Case
Examiner’s decision is enclosed. [ INCLUDE only if removal is
granted:] The Case Examiner’s decision constitutes final Agency
action on the request for removal. The effective date of removal
is the date of this letter.
[ INCLUDE only if removal is denied:]
Please be advised that pursuant to 40 CFR *15.25, you may
file a written request addressed to me, the Listing Official,
asking the Administrator of EPA to review the Case Examiner’s
decision. That written request must be filed within 30 days of
the date of the Case Examiner’s decision . Your request must
contain a statement of the issues presented by the request for
removal, a statement of the case and the facts involved in the
request for removal, and a statement showing why the decision of
the Case Examiner is not correct based upon the record of the
removal hearing as a whole. Regulations governing this review
procedure may be found at 40 CFR §15.25.
If you do not file a timely request for the Administrator to
review the decision of the Case Examiner, the Case Examiner’s
decision will constitute final Agency action denying your request
for removal. However, in accordance with 40 CFR §15.25(d), when
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-2- Attachment 00, P. 2
a removal request is denied, any person who may file a request
for removal may file a new request under 40 CFR §15.22(a) based
on new information.
Sincerely,
[ SAME]
Listing Official
enclosure
CC: [ Federal, state or local authority responsible for
enforcement of clean air or water standards]
bcc: Assistant Administrator for Enforcement
and Compliance Monitoring
Regional Administrator
Region [ NUMBER]
Office of Regional Counsel
[ REGIONAL PROGRAM OFFICE]
Director,
Office of Compliance Analysis and Program Operations
Associate Enforcement Counsel [ Air/Water]
[ Djsk:sneed 9/#8J
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p
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Attachment PP
MODEL NOTICE THAT TUE DECISION OF THE CASE EXAMINER
IS FINAL AGENCY ACTION
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[ NAME AND ADDRESS OF
REQUESTING PERSON OR
RECOMMENDING PERSON)
Re: Final Agency Action by Case Examiner
Docket No. [ NUMBER )
Facility: [ NAME AND LOCATION OF FACILITY]
On [ DATE], a removal hearing was held before a Case Examiner
to determine if the above—named facility should be removed from
the Environmental Protection Agency’s (EPA) List of Violating
Facilities (the List). On [ DATE], you were notified of the Case
Examiner’s decision and you were also told of the opportunity to
request the Administrator of EPA to review the decision of the
Case Examiner. As explained in the prior notice, if you failed
to file a request for such review within 30 days of the date of
the Case Examiner’s decision, the Case Examiner’s decision would
constitute final Agency action on the request for removal pursuant
to 40 CFR §15.25(c).
A timely request for review was not received. Therefore,
the Case Examiner’s decision denying the request to remove the
above—named facility from the List is now final Agency action on
the request for removal. In accordance with 40 CFR §15.25(d),
any person who may file a request for removal under 40 CFR
§15.22(a) may file a new request for removal under that section
based on new information.
Sincerely yours,
[ NAME)
Listing Official
bcc: Regional Administrator
Region [ NUMBER)
Office of Regional Counsel
[ REGIONAL PROGRAM OFFICE]
Director,
Office of Compliance Analysis and Program Operations
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—2— Attachment pp. p. 2
Associate Enforcement Counsel. [ Air/Water]
[ CASE EXAMINER]
[ ALL FEDERAL, STATE AND LOCAL AUTHORITIES
RESPONSIBLE FOR ENFORCEMENT OF CLEAN AIR
OR CLEAN WATER STANDARDS]
[ Disk: Sneed 9/#9]
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0
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Attachment QQ
MODEL MEMORANDUM ASKING FOR COMMENTS ON
REQUEST FOR ADMINISTRATOR’S REVIEW
MEMORANDUM *
SUBJECT: Request For Cornnients on [ NAME AND LOCATION OF
FACILITY] Request for Review by the Administrator
FROM: [ NAME)
Listing Official
TO: Addressees*
Docket No. [ NUMBER )
Facility: [ NAME AND LOCATION OF FACILITY]
I have received a timely request to have the Administrator
of EPA review a Case Examiner’s decision denying a request to
remove the above-named facility from the EPA List of Violating
facilities. Your comments on the attached request for review
are needed to prepare the Agency’s response. Consequently, please
examine the request for review and forward any comments to me
within 7 days.
Thank you for your assistance in this effort.
Attachment
Addressees:
Associate Enforcement Counsel [ Air/Water]
[ REGIONAL PROGRAM OFFICE)
[ *Use letter format if comments are requested of persons
who are not EPA staff.J
[ oRIGINAL RECOMMENDING PERSON]
ESTATE OR LOCAL AUTHORITY WITH RESPONSIBILITY FOR
ENFORCING CLEAN AIR OR CLEAN WATER STANDARDS]
[ Disk:Sneed 91*10]
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R
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Attachment RR
MODEL MEMORANDUM ASKING THE OFFICE OF REGIONAL COUNSEL TO DRAFT
THE AGENCY’S RESPONSE TO A REQUEST FOR REVIEW BY THE ADMINISTRATOR
MEMORANDUM
SUBJECT: Preparation of the Agency’s Response to a Request for
Administrator’s Review of Denial of Removal
FROM: [ NAME]
Listing Official
TO: [ NAME]
Regional Counsel
Region [ NUMBER]
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILITY]
On [ DATE], a removal hearing was held before Case Examiner
[ NAME] to consider the request to remove the above—named facility
from the EPA List of Violating Facilities. Following the removal
hearing, the Case Examiner issued a decision denying the removal
request. Pursuant to 40 CFR §15.25, [ NAME AND TITLE] has requested
that the Administrator review the Case Examiner’s decision.
Attached is a copy of the facility’s request for review by
the Administrator. Please examine it and prepare a response on
behalf of the Agency that addresses the issues raised in the re-
quest for review. To assist you in preparing that document, I am
sending you all conunents that have been received regarding the
request for review. Please submit the response to me within 7
days of the date you receive this memorandum so that the Adminis-
trator will receive it in enough time to complete [ his/her] review
in time to meet the guidelines established by the regulations.
Thank you for your assistance in this effort.
Attachments
[ Disk:Sneed 9/ 22]
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S
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Attachment SS
MODEL MEMORANDUM TRANSMITTING TO ADMINISTRATOR A REQUEST
FOR REVIEW OF CASE EXAMINER’S DECISION ON REMOVAL REQUEST
MEMORANDUM
SUBJECT: Transmittal of [ NAME OF PERSON REQUESTING REVIEW]
Request for Review of the Case Examiner’s Decision
in Removal Hearing -- [ NAME OF FACILITY]
FROM: [ NAME]
Listing Official
TO: [ NAME]
Administrator
Docket No. [ NUMBERJ
Facility: [ NAME AND LOCATION OF FACILITY]
Background and Authority
Section 306 of the Clean Air Act (CAA)(42 U.S.C. §7606),
Section 508 of the Clean Water Act (CWA)(33 U.S.C. §1368),
Executive Order 11738 (38 Fed. Reg. 25161, September 12,
1973), and 40 CFR Part 15 provide EPA with the authority to
prohibit facilities violating either of these acts from
receiving federal government contracts, grants, or loans.
The implementation of this authority, known as the “Listing
Program,” is designed to ensure that federal agencies’ procure-
ment programs are conducted “in a manner that will result in
effective enforcement of the Clean Air Act. . .and the Clean
Water Act. . . and does not favor firms where production costs
may be lower due to noncompliance.” 40 CFR §15.1(a).
Under the regulations implementing the Listing Program,
a facility is automatically added to the EPA List of Violating
Facilities (the List) if the owner, operator or supervisor of
the facility is convicted of a violation of Section 113(c)(l)
of the Clean Air Act or Section 309(c) of the Clean Water Act.
A facility may be recommended for listing if it is found to be
a source of continuing or recurring violations of Clean Air Act
or Clean Water Act standards despite previous enforcement
actions. In that case, the owner, operator or supervisor of
the facility is given an opportunity to oppose the recommenda-
tion to list at an informal listing proceeding presided over by
a Case Examiner who is a member of EPA staff. If dissatisfied
with the decision of the Case Examiner, the owner, operator or
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2 Attachment ss, p. 2
supervisor of the facility may have the decision reviewed by
the EPA Office of General Counsel. Once placed on the list,
except where removal is automatic under the regulations, a
facility must request and obtain removal from the List in order
to regain eligibility to receive federal contracts, grants and
loans.
Request for Removal
On [ DATE], [ NAME OF PERSON REQUESTING REMOVAL] filed a
requested that [ NAME AND LOCATION OF FACILITY] be removed from
the List. That request was denied by the Assistant Administrator
for Enforcement and Compliance Monitoring and a removal hearing
was requested by representatives of the facility. The removal
hearing was held on [ DATE] in accordance with the provisions of
40 CFR Part 15. On [ DATE], the Case Examiner rendered his deci-
sion denying the request to remove [ NAME AND LOCATION OF FACILITY]
from the List.
The regulations provide that the Case Examiner’s decision
constitutes final agency action unless a timely request for
review by the Administrator of EPA is filed with the Listing
Official. [ NAME OF PERSON REQUESTING REVIEW] has filed a
timely request for review. Pursuant to 40 CFR §15.25(b), I am
forwarding the request to your Office.
Request for Review
The regulations state that the review conducted by the Administrator
is not a de novo review, but is “to determine if the decision of
the Case Examiner is correct based on the record of the removal
hearing considered as a whole.” 40 CFR §15.25(b). The regulations
also provide that “ [ t]he person requesting the removal hearing
must demonstrate at the removal hearing by a preponderance of the
evidence that a basis for removal is present,” 40 CFR §15.24(a),
and “ [ t]he Case Examiner’s decision concerning removal shall be
based solely upon the record in the removal hearing,” 40 CFR §15.24(c).
Procedural Matters
As agreed in prior discussions, I am transmitting a complete
package to [ NAME OF CONTACT] of your staff to conduct the review.
The package includes the Assistant Administrator’s original
determination, the Case Examiner’s decision, the request for
review, all responses to the request, the record from the listing
proceeding, and a copy of the current regulations. Please submit
your Office’s decision to me within 30 days of receipt of this
package. I will distribute copies of it to the parties. Also,
after your Office has made its decision, please return the record
of the removal hearing to me. Thank you for your prompt attention
to this matter. -
Attachments
cc: Assistant Administrator
Enforcement and Compliance Monitoring
[ CASE EXAMINER]
[ Disk:Sneed 9/#1l]
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T
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Attachment TT
MODEL NOTICE OF DETERMINATION OF ADMINISTRATOR ON REVIEW
OF CASE EXAMINER S DECISION ON REMOVAL REQUEST
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[ NAME AND ADDRESS
OF PERSON REQUESTING ADMINISTRATOR’S REViEW]
Re: Final Agency Action by Administrator
Docket No. [ NUMBER ]
Facility: [ NAME AND LOCATION OF FACILiTY]
Dear [ NAME]:
On (DATE], you requested the Administrator of the Environ-
mental Protection Agency (EPA) review the decision of Case Exami-
ner [ Np iE] issued on [ DATE] denying your request to remove [ NAME
AND LOCATION OF FACILITY] from EPA ’s List of Violating FaciLities
(the List). The Administrator of EPA has reviewed the record of
the removal hearing in accordance with 40 CFR §15.25(b) and
determined that the decision of the Case Examiner [ is/is not]
correct based on the record as a whole. A copy of the Adminis-
trator’s decision is enclosed. [ INCLUDE only if removal is
granted:] The effective date of removal is the date of this
letter.
[ INCLUDE onLy if removal is denied:]
The decision of the Administrator constitutes final Agency
action by EPA on your request to remove [ NAME AND LOCATION OF
FACILITY] from the List. In accordance with 40 CFR §15.25(d),
any person who may file a request for removal under 40 CFR
§15.22(a) may file a new request for removal under that section
based on new information.
Sincerely yours,
[ NAME]
Listing Official
enclosure -
cc: Federal, state or local authority responsible
for enforcement of clean air or water standards
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—2-- Attachment TT, p. 2
bec: Regional Administrator
Region [ NUMBER]
Office of Regional Counsel
[ REGIONAL PROGRAM OFFICE]
Director,
Office of Compliance Analysis and Program Operations
Associate Enforcement Counsel (P ir/Water]
[ CASE EXAMINER]
[ Disk:Sneed 9/#12J
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U
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6560.50 Attachment UU
ENVIRONMENTAL PROTECTION AGENCY
EPA LIST OF FACILITIES PROHIBITED FROM RECEIVING GOVERNMENT
CONTRACTS UNDER 40 CFR PART 15
AGENCY: Environmental Protection Agency
ACTION: EPA LIST OF FACILITIES PROHIBITED FROM RECEIVING
GOVERNMENT CONTRACTS UNDER 40 CFR PART 15
SUMMARY: 40 CFR 15.40 requires the Environmental Protection
Agency (EPA) to publish in the FEDERAL REGISTER semi-annually
a list of all persons and facilities prohibited under 40 CFR
Part 15 from receiving federal government contracts, grants,
loans, subcontracts, subgrants, or subloans. The following
list contains the names and locations of the prohibited facilities,
as well as the dates they were placed on the list and the
effective date of each listing.
DATE: This list is current as of [ DATE OF PUBLICATION IN
FEDERAL REGISTER].
FOR FURTHER INFORMATION CONTACT: Listing Official, Office of
Enforcement and Compliance Monitoring, Environmental Protection
Agency, Rm. 112 NE Mall (LE—13OA), 401 M St., S.W., Washington,
D.C. 20460. Telephone (202) 475—8777.
SUPPLEMENTARY INFORMATION: Pursuant to Section 306 of the
Clean Air Act [ 42 U.S.C. 1857 et seq., as amended by Pub.
L. 91—604], Section 508 of the Clean Water Act [ 33 U.S.C.
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Attachment tJU, P. 2
2
1251 et seq.., as amended by Pub. L. 92—500], and E.O. 11738,
EPA has been authorized to provide certain prohibitions and
requirements concerning the administration of the Clean Air
Act and the Clean Water Act with respect to federal contracts,
grants, loans, subcontracts, subqrants, and subloans. On
April 16, 1975, regulations implementing the requirements of
the statutes and the Executive Order were promulgated in the
FEDERAL REGISTER [ see 40 CFR Part 15, 40 FR 17124, April 16,
1975, as amended at 44 FR 6911, February 5, 1979]. On September
5, 1985, revisions to those regulations were promulgated in
the FEDERAL REGISTER [ see 50 FR 36188, September 5, 1985].
The regulations provide for the establishment of a List of
Violating Facilities which reflects those facilities ineligible
for use in nonexempt federal contracts, grants, loans, subcontracts,
subgrarits, or subloaris.
The List of Violating Facilities is comprised of two
sublists. Sublist 1, mandatory listing (40 CFR §15.10),
includes those facilities listed on the basis of a conviction
under Section 113(c)(1) of the Clean Air Act or Section 309(c)
of the Clean Water Act. Sublist 2, discretionary listing (40
CFR §15.11), includes those facilities listed on the basis of
continuing or recurring noncompliance with clean air or clean
water standards, and:
1. a conviction by a federal court under Section
113(c)(2) of the Clean Air Act, or
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Attachment UU, P. 3
3
2. any injunction, order, 3udgment, decree (including
consent decrees), or other form of civil ruling by a
federal, state or local court i.ssued as a result of
noncompliance with clean air or water standards, or
3. a conviction by a state or local court of a criminal
offense on the basis of noncompliance with clean air
standards or clean water standards, or
4. violation of an administrative order issued under
Sections 113(a), 113(d), 167, or 303 of the Clean Air
Act or Section 309(a) of the Clean Water Act, or
5. a Notice of Noncompliance issued by EPA under Section
120 of the Clean Air Act, or
6. an enforcement action filed by EPA in federal court
under Sections 113(b), 167, 204, 205, or 211 of the
Clean Air Act or Section 309(b) of the Clean Water
Act due to noncompliance with clean air or water
standards.
This Notice reflects:
° The removal of the Pioneer Excavating (d/b/a Rocky
Mountain Materials and Excavating) Colorado Springs,
Colorado facility from Sublist 1 of the List of Violating
Facilities. The Pioneer Excavating Colorado Springs
facility was added to the List of Violating Facilities
on February 13, 1986, based on a conviction obtained
against the company under Section 309(c)(1) of the
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Attachment wi, P. 4
4
Clean Air Act. Pursuant to 40 CFR §15.20, a facility
may be removed from Sublist 1 if the Assistant Adminis-
trator certifies that the condition giving rise to the
listing has been corrected. The Assistant Administrator
for Enforcement and Compliance Monitoring, U.S. Environ-
mental Protection Agency, certifies that the Pioneer
Excavating Colorado Springs facility has corrected the
condition which gave rise to listing, and has removed
the facility from the List of Violating Facilities as
of March 31, 1987.
The removal of the B.F. Goodrich Company Louisville,
Kentucky facility from Sublist 2 of the List of Violating
Facilities. The facility was added to the List of
Violating Facilities on February 10, 1986, based on a
determination of continuing or recurring noncompliance
with the Clean Air Act, 42 U.S.C. §113(b) and 40 CFR
§ 61.64(a)(2) and 6 1.64(e)(1)(ij) ESee 51 FR 6470,
February 24, 1986]. Pursuant to 40 CFR §15.21(a)(3),
removal from Sublist 2 is automatic after one year,
unless a basis for listing arises under 40 CFR
§15.10, or 40 CFR § 15.1l(a)(l), (a)(2) or (a)(3),
before the expiration of the one—year period. The
Assistant Administrator for Enforcement arid Compliance
Monitoring, U.S. Environmental Protection Agency certifies
that since no basis for listing exists, the B.F.
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Attachment UU, P. 5
5
Goodrich Louisville, Kentucky facility has been removed
from the List of Violating Facilities as of February 10,
1987.
° The removal of the Robert E. Derecktor of Rhode Island ,
Inc. Middletown, Rhode Island facility (REDRI) from
Sublist I of the List of Violating Facilities. The
REDRI facility was added to the List of Violating Facil-
ities on December 29, 1986, based upon a criminal corivic-
tion of 24 counts of violating Section 309(c) of the
Clean Water Act and one count of violating Section 113(c)
of the Clean Air Act. Pursuant to 40 CFR §15.20, the
Assistant Administrator for Enforcement and Compliance
Monitoring, U.S. Environmental Protection Agency,
certifies that the REDRI facility has corrected the
condition which gave rise to listing, and has removed
the facility from the List of Violating Facilities as
of April 17, 1987.
° The removal of the Seattle, Washington facility of
Janco United, Inc. (Janco) from Sublist 1 of the List
of Violating Facilities. Janco was added to the List
of Violating Facilities on May 5, 1986, based upon a
criminal conviction for violating Section 309(c) of the
Clean Water Act. Pursuant to 40 CFR §15.20, the Assistant
Administrator for Enforcement and Compliance Monitoring,
U.S. Environmental Protection Agency, certifies that
Janco has corrected the condition which gave rise to
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Attachment UU, P. 6
6
listing, and has removed the facility from the List of
Violating Facilities as of April 29, 1987.
Other additions to and deletions from the List of Violating
Facilities will be published periodically as they occur.
Facilities on the List also are included in the General Services
Administrations “Consolidated List of Debarred 1 Suspended,
and Ineligible Contractors.’ Subscriptions to this document
may be obtained from the U.S. Government Printing Office,
Washington, D.C. 20402, (202) 783—3238.
LIST OF VIOLATING FACILITIES
SUBLIST 1; Mandatory Listing
Name Location
Effective Date Basis for Listing
Chemical Formulators Nitro, West Virginia
Facility
Jan. 29, 1981 Clean Water Act Sec. 309(c)(1)
The Old Pin Shop Oakville, Connecticut
Facility
Dec. 19, 1985 Clean Air Act Sec. 113(c)(l)
Waterbury House Wrecking Waterbury, Connecticut
Company Facility
Dec. 19, 1985 CLean Air Act Sec. ll3(c)(1)
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Attachment tJU, P. 7
Fleischman’s Yeast, Inc.
Division of Burns, Philp
& Company, Ltd.
May 14, 1986, effective
date of listing
Nov. 14, 1986, effective
date of facility’s
transfer from Nabisco to
Burns, Philp
7
Sumner, Washington
Facility
Clean Water Act Sec. 309(c)(l)
Will and Baumer, Inc.
June 10, 1986
Liverpool, New York
Facility
Clean Water Act Sec. 309(c)(1)
Johnson and Towers, Eric.
June 17, 1986
Mount Laurel, New Jersey
Facility
Clean Water Act Sec. 309(c)(l)
Hope Resource Recovery,
Inc.
Sept. 18, 1986
Long Island, New York
Facility
Clean Air Act Sec. 113(c)(1)
Sea Gleaner Marine, [ nc.
Oct. 6, 1986
Sea Port Bark Supply
Oct. 21, 1986
Bellevue, Washington
Facility
Clean Water Act Sec. 309(c)(1)
Tacoma, Washington
Facility
Clean Water Act Sec. 309(c)(l)
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Attachment UU, P. 8
8
Ocean Reef Club, Inc. Key Largo, Florida
Facility
Oct. 22, 1986 Clean Water Act Sec. 309(c)(1)
Irwin Peariman Pittsburgh, Pennsylvania
Facility
December 30, 1986 Clean Air Act Sec. 113(c)(1)
Salvatore C. Williams Pittsburgh, Pennsylvania
Facility
December 30, 1986 Clean Air Act Sec. 113(c)(1)
t.JSM Corp. New Bedford, Massachusetts
Facility
December 31, 1986 Clean Water Act Sec. 309(c)(1)
Marine Power and Equipment Duwamish River and Lake Union,
Seattle, Washington Facilities
April 27, 1987 Clean Water Act Sec. 309(c)(l)
SUBLIST 2: Discretionary Listing
Name Location
Effective Date Basis for Listing
None
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9
Dated:
Thomas L. Adams, Jr.
Assistant Administrator for
Enforcement and Compliance Monitoring
£DisIc:Sneed 9/#13J
Attachment UU, p. g
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V
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Attac eflt VV
Thursday
Seotember 5, 1985
Part II
Environmental
Protection Agency
40 CFR Part 15
Adminlatratlon of the Clean Air Act and
the Clean Water Act With Respect to
Federal Contracts 1 Loans, and Grants;
Final Rule
I
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ENVIROP4MENT&L PROTECTIOP4
AGENCY
4OCFR Part 15
(FRL-2$49-4 I
Administration of thi CI.an Air Act
and ha Clean Water Act With R.sp.ct
to Fd.ril Contracts, Loans, and
Grants
AOINC’v En ironmerual Prote on
Agency (EPA I
ACTIO$: Final rule
S4JMMA Y: EPA ioda is promulgating
revisions to 40 CFR Part 15. This
regulation establishes a special
suspension and debarment program
under the Clean Air Act (CAA) and
Clean Water Act (CWA) The facilities
listing program authorizes EPA to bar
facilities from federal contracts.
assistance agreements or loans as a
consequence of criminal or civil
violations of the CAA or CINA. On July
31 1984 EPA proposed revisions to 40
CFR Part 15 (49 FR 30628) to clarify the
procedural opportuiuties which EPA will
provide to parties to listing or removal
actions and to provide for mandatory or
aetomalic listing of facilities which give
rise to criminal cori ict:oris under
cecti U3(c)(1 of the CAA or Section
309(c) of the CWA
OATS: This regulation becomes effective
or October 7. 1985
aoo as3: Office of Enforcement arid
Compliance Monitoring. Environmental
Protection Agency Room 3219 (LE—
130A) 401 M St SW Washington. D C
20460
PO F%JNThEA INFOPUArION CONTACT
Alen Danzig (202) 475—8785
SUPPt.EMSNTARY iNFO MAT1QN.
I Backgrouxid
Section .306 of the Clean Air Act
)CAA) (42 U S C 7401 et seq and
Section 508 of the Clean Water Act
(C’ iA) [ 33USC. 1251 et seq Jas
iniplemertied b Executue Order 11738.
(38 FR 25 1€l September 12 1973)
authorize EPA to bar (after appropriate
Agency procedures) facilities which
have gi en nse to violations of the CAA
or the CWA from being used in the
performance of any federal contract.
rant or loan
On April 18. 1975. EPA promulgated 40
CFR Part 15 (4.0 FR 17124) to provtde
procedu.res for ensuring that Executive
Branch agencies conduct their
procurement and assistance programs itt
accordance with the President’s
responsibility for ensuring compliance
with CAA and CWA standards. 40 CFR
Part 15 provides for a List of Violating
Facilities a list of facilities which are
ineligible for any noriexempi contract.
grants or loans issued by an Executive
Branch agency This Part also provides
procedures for placing a facility on the
List because of a criminal conviction
under section 1 13(c)(1) of the CAA or
section 309(c) of the CWA or because of
a record of continuing or recumxtg
noncompliance with CAA or CWA
standards On February 5. 1979, EPA
appended to these regulations a
procedural statement explaining the
decisionmakuig process within EPA
relating to placement of facilities on the
list Ftnally. 40 CFR Part 15 provides
procedures for removini a facility from
the List where the CAA or CWA
noncompliance problems at the facility
have been corrected.
fl Public Comment,
EPA received written comments on
the July 31. 1984. proposed regulations
(40 FR 30628) from twelve interested
parties. EPA has carefully considered o.ll
submitted comments A luminary of
these comments and EPA’, response to
them is set forJi below
Scope (40 C I ? ? 152)
One comnienter requested
clan ication on the scope of the listing
prohibition as applied to go%ernment
subcontractors. The listing exter.ds to all
types of contracts. grants and loans
which involve the purchase of goods or
performance of services at a violating
facility. “Facility” includes a site of
operations such as a developed tract of
land, as well as any building, plant.
installation structure, mine, vessel or
other floating craft Further. a facility
may not use items manufactured at
another facility which a on the List to
perform part of a goverfunerit coiitract.
unless an exemption under I 15 5
applies To permit such a transaction
would frustrate the congressionai intent
to bar listed facilities from federal
contracts, grants or loans, arid would
create incons stenciea in the appLication
of the listing rules.
De’m ’zions (40 CFR 15
Two contmenters stated that EPA
should provide a defir.ition of
“continuing or recurring” in the final
regulation. EPA does not agree that such
a defirutiort is needed. “Continuing or
recurring’ is widely understood as
either a violation which continues to
exist or a series of violations over time
The Agency will determine on a case-
by-case basis whether a sertes of
violations constitutes proper grounds for
listing
Some cornmenters requested EPA to
retain the three specific constraints of
forn’e 4.0 CFR Pa:’ iS Surpa—
defin iion of Case E’ a- re’ T” e
former rule pro ided that a Case
Examiner could not be (I( The Lis
Official, (2) the Recommend:rg Of .c
or (3) closely involved in the prepara’icr
of the enforcement case EPA ag—ees
that this change will ensure that the
Case Examiner is an unbiased
decisiortrnaker, and has rev:sed the fina 1
regulation accordingly
Two cornrnenters stated that EPA
should retain the existing regulation 40
CFR 15 20(a)(1). which requires a
“governor” to be the recommending
person” where the listing
recorrunendation is based on a state or
local civil adjudication or admi.nist.rati’.e
finding The proposed regulation. 40 CFR
* 154. included a governor’ within the
definition of “recommending party ‘ but
did not require the governor to be the
only recommending party where a siate
or local civil adjudication or
administrative finding is the basis for a
listing recommendation EPA does not
see any need to restrict the
recommending party in such a state
enforcement action to a governor.
Similarly. EPA does not beliese that a
listing recommendation based on a
federal enforcement action under the
CA.A or CWA should be restricted to
federal officials In all cases, EPA will
d terrnine whetner to initiate a listing
proceeding pursuant to itS in, ’tal review
of a listing recommendation under
11511(c)
Some corn.menters stated that
members of the public shculd rot be
included as “recori-irr’ierdirg parties”
claiming that there would be a pcter’ttai
for abuse of the serious sanctions i bich
may arise from such a proceed ng Also
a number of corrirrienters felt that the
proposed regulation did not p:oiide for
EPA reconsideration of a listing
recommenthat on from a “member of the
public’
The Agency disagrees It is EPA pa’ C:,
to encourage public participaticri in the
enforcement of the CAA and CWA t
the same ume. 40 CFR iS tI(c ((1)
require, the Assistant Admin’strator fcr
Enforcement and Con-pliance
Monitoring to rei iew e’ ery
discretionary listing recoiruner:ar ‘
includ ng those made by a “me ’rb ’r of
the public.” The Assistant Adminis ,:a c :
may decline to proceed under
115 1i(c)(i) This preliminary re’. e ’ .
ensures that EPA will not proceed is t i
a listing action is here the
recomrrienda’ion has rio merit
Moveover. where the Ass’stant
Administrator decides to proceed. t , ’e
owner of the facility then has an
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Federal Register I Vol. 50. No 172 / Thursday. Septe er 5. 1985 I Rules arid Ru attoris 36189
opportunity to request a hearing before
a Case E,zazruner
Exemptions (40 CFR 25.5)
Proposed t5.5 provided that
contracts, giants and loans not
exceeding $iOO.000 in any single year
are exempt from these regulation ..
“Contract.” “grants” and loans” are
defined in 154 to include
“subcontracu, “subgrarits” arid
‘,ubloane,” respectively The exemption
does not apply where the work under a
contract is performed at a faci’uty that
has been placed on the List of Violating
Facilities as a result of a criminal
conviction under the CAA or CWA.
One com.menter requested EPA’.
clanflcataon on the scope of the $100,000
exemption as applied to subcontractors.
A listed subcontractor is barred from
recewuig more than $100000 iii federal
fund. from a government contractor for
products or services called for in the
contract or used in production of the
final product. However the mere
purchase by a contractor of services not
required by a govetTircent contraCt
would generaliy not be subiect to the
listing prohibition. For example. a
subcontractor who receives more than
$100,000 to construct a building for $
contractor which is used to manufacture
a product for the government would be
barred only if the government contract
calls for construction of such $ building.
Similarly, where a utility supplies
greater than $100,000 worth of power to
a government contractor, the utility
would not be considered a
“subcontractor” unless the contract, In
part. acutally calls for the furtushuig of
electric power
Mandatory Listing (40 CFR 15 20)
The proposed regulation provided for
mandatory listing for criminal
conv’ict.ons under section 113(dll1) of
the CAA or .ection 309 (c) of the CWA.
Convictions include court and jury
verdicts as well as nato cortiendere
pleas and guilty pleas. Convictions for
violations of CAA section 113(c)(2)
(knowing false statement In a required
CAA application or report) are handled
in discretionary listing. discussed below.
A tiuciber of commenterl expressed
concern about mandatcry listing
pu.reuant to proposed 15.10. The
cornmentera felt that it was “unfair” to
automatically list a facility following
cnirunal conviCtiOti without same further
Agency consideration. One couimenter
suggested that the Agency should
consider the seventy of the crime.
Another cornmenter suggested that the
Agency should allow for the exhaustion
of all criminal appeals prior to such a
listing
EPA disagrees. The CAA section 306
and CWA section 508 state that no
federal agency shall enter into a
contract with any person who has been
convicted of any offense wider CAA
section 113(dlll) or CWA section 309(c).
The Agency cannot consider the relative
“severity” of a criminal conviction given
this clear congressional mandate
Further, while EPA does not agree that
mandatory listing should ewait all
appeals. the Agency has revised 15.20
to provide for automatic removal from
the Last of Violating Facilities where a
conviction is overturned. In addition. the
Assistant Administrator for
Enforcement and Compliance
Monitoring may remove a facility from
the List where the activities which led to
the conviction at Issue are corrected.
One commentar requested that the
procedures for mandatory listing and
discretionary listing be made
prospective in nature. EPA agrees and
has provided that the effective date of
this regulation will be 30 days after
publication in the Federal Re atar.
Bases for Discretionary Listing (40 CFR
15.11)
Several coinmenters contended that
EPA lacks the authority to list a facility
on the basis of federal udictal decisions
or orders. admirustrative orders or
notices of noncompliance as proposed In
15.11. Seine commenterl further
questioned EPA’. uthonty to list a
facility after EPA files an enforcement
action since such action does not
cOflStltUtS s final udicial or
administrative deternunatioti They
argued that such listings would violate
constitutional due process since the
affected party has no prior opportuxutY
to be beard.
EPA disagrees. EPA addressed its
authority to list a facility on the basis of
civil violations n response to similar
comments on the original proposed
contractor listing regulations (40 FR
17124. April 18. 1975) EPA stated therein
that “pursuant to section 306(c) of the
Clean Air Act. section 506(c) of the
Federal Water Pollution Control Act.
arid sections 1. 4. 5, arid 7 of Executive
Order 11738. EPA was delegated
responsibility to carry out the purpose of
those Acts and the Executive Order.
induding the responsibility for setting
forth the bases for consideration of
listings facthty. ’
In addition. three district courts have
upheld EPA’s authority to list facilities
for civil violatton.$ of the CAA arid
CWA. See U.S. v. I,nterlo.ke. Inc.. 432 F.
Supp. 987 (ND. 111.. 1977). U.S. v. U.S.
Steel. 10 ERC 1971 (ND. ill. 1977). arid
U S. v, Del Monte. a ERC 1495 (D i R.
1976). In these decisions, the courts
relied on CAA section 306(c) arid C’A
section 506(c). and section of
Executive Order U738. reasorung that
Congress intended EPA to have
authority to list for civil violattons. ard
that the Executive Order is to be vte’ ed
as a remedial action.
Further. EPA disagrees with the
assertion that it lacks authority to list a
facility following the ftling of an
underlying CAA or CWA enforcement
action. The court, ira lnie 1ake (cited
above. at 989). noted that ‘ [ p)ursuanI to
40 CP’R 15.20(a)(lflUl). plaintiff (EPAI
has the authority to commence a l,surg
proceeding once a civil suit has been
initiated under subsection 113(b) of the
(Clean Air) Act. 42 U.S C. 3857(c).-8(b).”
In addition. prior to being listed on the
basis of a flied civil action (as well as
for violation of an administrative order
or a ludicial decision, the affected
business a. provided an opportunity to
request i listing proceeding. presided
over by a Case Examiner Where a
listing proceeding Is riot requested. the
Assistant AdmuuStXatOr for
Enforcement and Compliance
Monitoring inust nonetheless make an
Independent finding that there have
been continual and recurring violations
of the CAA or CWA at the facility Thus.
the regulation clearly provides the
affected business art opportunity and
right to be heard.. and thus satisfies due
process.
One commentet asked EPA to add
“noncompliance with a consent decree’
to the items that can be used as a basis
for a listing recommendation EPA
inserprets proposed I 15 11(a)(31 to
include consent decrees as a basis for a
tasting recommendation. A facility cart
be listed under this section where the
consent decree as accompanied by
continual or recurring violations of the
CAA or CWA. Thus. It is unnecessary to
use the phrase “noncompliance with”
However. EPA has added a
parenthetical to I iS il(a)(3) to
explicitly cover consent decrees.
Withdrawal of Listing Recommetld_ ti a rt
(4OCFR 2511)
Proposed 15.11(d) provided in part
that “ [ t)he recommending person should
withdraw $ recommendation to list if
the conditions which gave rise to the
recommendation to last have been
corrected. . .“ Several conunenters
suggested that withdrawal of a
recommendation to list under 15 11(d)
should be andatoty in the event that
the conditions underlying the
recommendation i Iast are corrected.
The Agency disagrees. While the
recommending party should make a
good faith effort to deterrruuie if the
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u. o 172 / Thursday September 5 198.5 / Ruies and Re2ua’. ’s
conditions WhiCh ge e rise to the
recommendation to 1st have in fact
been corrected. tb e may be some
cases where the recammertdi.ng party
may not be aware of a correction or may
not believe that condition, have been
corrected. EPA has revised thia action
to clarify that the recommending person
must withdraw the Li.sting
recommendation it he or she determines
that conditions have been corrected. Of
course. where the listing
recommendation does not establish a
basis for listing Idue to lack of a
corltinwng or recurring violation), the
Assistant Adinimstrstor will decline to
proceed under 4 15.11(c)().
Proposed 415.11 provided that “the
Listing O cial must place * facility on
the Last of Violating Facthbe. if there is
a final agency action.. . “One
cornmentet requested EPA to replace
“must” with “may” on the rationale that
this would conform with the
‘discretionary’ nature of “discretionary
listuig” Another commeriter added that
EPA does not have sufficient f!ex.ibthty
under the proposed ride not to List a
facility The Agency disagrees. The
Assistant Administrators determination
pursuant to 415 hId that there is a
record of con unuing or recurring
noncompliance. and that the requisite
civil or administrative action has been
taken, ii discretionary Where a hearing
is requested pursuant to 415 12. the
Case Examiner makes this discretionary
determination. The Listing Official must
place the facility on the Last of ViolAting
Facilities only after the Assistant
Admirustrator or the Case Examiner
makes a de’ermnination By comparison.
mandatory listing provides for
automatic listing of a facility upon a
criminal con iction Accordingly. the
use of the term ‘must’ (revised to reed
‘shall’ } in 415 liii appropriate.
Requests for Listing Proceeding and
Rer ,oi ol Hearings (40 CFR 1512 and
1523)
One commneruer asked EPA to provide
a party named in the listing
recommendation 30 days to request a
listing proceeding fcUowtng receipt of
notice rather than the proposed ) days.
Another cocunenter asked EPA to
provide a party 4$ or 80 days to request
a removal hearing under 115.23(a).
rather than the proposed 20 days. Upon
reconsideration. EPA agrees thai 30
calendar days i .s approprIate given the
need to obtain and consult with counsel
before making a decision to request a
listing proceeding or a removal hearing.
The final rule has been revised
accordingly This consistent with the
time allowed for requesting a heartog
under 40 CFR Part (‘EPA debarment
and su.spenI on regulations)
Notice of Listing Recommendation (40
CFR 15.12)
One commenter suggested that the
Agency revise proposed 115 12 to
include a requirement that a complete
copy of the hating recommendation be
provided to the owner of the facility
named in the recommendation as part of
the written notice reqw.red by the
regulation. EPA disagrees. Such a
requirement may constitute an
automatic waiver of the Agency’s
deliberative proces, privilege tinder the
Freedom of lnlorrnatioc Act. See S
13 S.C 552 (b)(5) and ! ). It would also
be inconsistent with the procedures
established by the Agency ‘
deteriruning whether uttoe ation is
entitled to confidential trea ent. See 40
CFR Part 2.
Listing Prvceedin,g (40 CFR 75.13)
Two commenters stated that the Case
Examiners authority to deny cross-
examination denies due process. EPA
disagrees. The Case Examiner’s
authority to limit the cross-examination
of witnesses in both listing proceedings
and removal bearings does not deny
constitutional due process A listing
proceeding invo1ve a contract action
taken by the federal government in its
proprietary capacity as a purchaser cit
goods and services Moreover, since a
discretionary listing a automatically
dissolved after one year (unless there
has been a subsequent conviction or
court order) listing is analogoua to
temporary “suspension” of a contractor
rather than a ‘debarment” See United
States v biter/a /ca. 432 F Supp 987. 990
(N D. Ill. 1977) Fundamental fauitess in
such cases requires only that the
contractor receive specifIc notice of the
char’es against him and be given an
opportiaxuty to rebut those charges. See
Hattie Bmthervc Laird. 463 F2d 1.268.
1272 (D C. Cu 1972).
The listing regulation provides notice
and an opportunity to be heard. In the
listing proceeding. parties are granted
the right to be represented by legal
counsel and to present oral and written
evidence relevant to the proceeding. The
Constitution does not require the federal
government to provide unrestricted use
of cross-examination in these
proceedings.
Further. as provided in 4 15.l3çb). the
federal government has a legitimate
interest in preventing premature
disclosure of evidence and case strategy
relating to its enforcinent proceedings.
To allow wilimited cyos.-ezaminauon
could lead to an abuse of the ,yeteei.
Accordingly. the decision to allow cross-
examination of a witness is prope-
reserved to the Case Examiner
Agency Review of Request 1 or Rerr: c’
(40 CIR 252.2)
Proposed 415 22 required the
Assistant Administrator to re iew a
request for removal from the list and
issue a decision “as expeditiously as
practicable “One conunenter requested
EPA to set a 20-day limit for Agency
review of a request for removal from the
List of Vtolating Facilities Another
commenter requested EPA to extend the
tim. aUowed for the Assistant
Administrators review of a request for
removal.
The Ageacy believes that a decision
on a removal request should be made
expeditiously. EPA has modifled 415 ZZ
to add that the failure of the Agency to
make a decision within 45 calendar da) s
constitutes a denial of the request which
In turn authorizes the applicant to
request a removal hearing
Length of Listing Term (40 CIR 15.2!.
13.32)
One commenter requested EPA to
clarify the period of time during which a
contractor must promise not to use any
facility on the List of Violating Facilities
The proposed regulation clearly states
EPA’. intent that a listed facility will
remain on the list until it is removed
pursuant to 415 20 or 415 21 Therefc e
under 415 .31 (8 ), the contractor must
promise riot to use any facility on the
List for the duration of time it remains
on the List EPA has added language to
4 15.31(a) to clarify th s intent
Promise Not To (JseListedFoci/t (40
CFR 1531)
A number of commenters expressed
concern with the use of the term
“promise” instead of the terms
“s clatuon” or “agreement ir.
proposed 41531 on the ratiorta e that
the breach of a “promise” rather than a
“stipulation” would give rise to
contractual remedies Two comme”uers
requested the Agency to retain the word
“stipulation” Itis EPA’. intent thai the
breach of a “promise” between the
federal government and the contractor
will give nee to contractual liability The
use of the word “promise” in the
proposed regulation clarifies EPA s
intent to use contractual remedies where
a contractor breaches such a promise
Accordingly. this provision is
unchanged.
Notification of Use of Listed Fac !ii; (40
CFR 1531)
Proposed 415 31 required a contractor
to promise that it will notify the
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I VI.,& ,JU.
awarding agency if. facility it intend,
to use is on the List of Violating
Facilities or has been recommended to
be pieced on the List of Violating
Facilities, Three commentere stated that
it would be difficult for a contractor to
determine when a facility it intend, to
use has been recommended for
placement o tt the List of Violating
Facilities EPA agrees and has revised
the final regulation to require the
contractor to notify the awarding agency
only if the contractor knows that a
facility it intends to use has been
recommended to be placed on the List.
Minor Revisions
In addition, EPA has made the
following clarifying revisions. The
definition of “grant” has been clarified
to include all subagreements under
grants or Cooperative agreements to
ensure that contract awards under
assistance are covered, Proposed
* 15.26(c) has been deleted since it
repeats the Federal Register notice
requirement for remove! of. facility
from the List of Violating Facilities
under I 15 27 EPA has corrected the
reference in I 15.12(d) from “I 15 12(b)”
to “15 12(a )” In 15.14 (a), (b), and
15.2.5(a) EPA has replaced “party
adversely affected’ with “owner,
operator or supervisor of the facility” to
clarify its intent that only the owner.
operator or supervisor of a facility
against whom a listing proceeding is
brought may appeal the Case
Examiner’s decision In I 15 13(b)(l),
EPA has replaced “recommending
person’ with “EPA” to clanfy its intent
that EPA. rather than any non-A.gericy
recommenduig party, would be required
to prove a basis for listing at the listing
proceeding In proposed I 015 14(c) and
15 2.5(b), EPA ha. deleted “is based on
this determination” and “be based on
this determination” respectively, as
redundant.
In providing notice to facilitie, of
listing recommendations, placement on
the List, and removal hearings, in
1*15 12(a). 15 16(a), 15.16(b), 15.22(a),
1523(a) and 15. , EPA has clarified that
notice should go to the “owner, operator
or supervisor” of the facility. Proposed
*1523(b) provided that “(i)f a timely
request for a removal hearing under
*1523 is not filed, any person who may
make a request for removal under
I 15.22(a) may file a new request under
*15 22(a) if a new basi, for removal
under 415.20 or * 15.21 arises at a later
date.” EPA revised proposed 115.23(b)
and 15.25(d) to clarify its intent that
the owner or operator of a listed facility
may reapply to be removed on the same
regulatory basis (e.g., compliance plan
approved by the Assistant
Administrator), as long as there are new
facts to support the removal application.
Finally, EPA revised proposed *15.40 to
provide for transmittal of the List of
Violating Facilitie, to Federal agencies
with assistance responsibilities (as weU
as the General Services Adnunistration)
to ensure that these Agencies know that
facilities are barred from assistance.
Executive Order 12291
Under Executive Order 12291, EPA is
required to judge whether a regulation is
“major” and therefore subject to the
requirement of a Regulatory Impact
Analysis. EPA has determined that this
is not a major regulation because it will
not entail a major increase in costs or
prices for consumers, individual
industries. Federal, State. or local
Government agencies, or geographic
regions.
Regulatory Flexibility Act
EPA has determined, pursuant to the
Regulatory Flexi iliry Act, that this
regulation will not have • eigruflcarit
economic impact on a substantial
number of small entitles because the
decision to list any facility is made on a
case.by.case basis.
Ust of Subjects in 40 CTR Part 15
Administrative practice and
procedure, Air pollution control,
Government contracts, Grant
protection.
Loan programs_erivu.or ta
protection, Reporting and recordkeeping
requirements, Water pollution control.
Dated August 23. 1985.
A dmin,srmeor
40 CFR Part 15. Chapter 1. is revised
as follows:
PART 15—ADM(Nl$Tp TION OF THE
CLEAN AIR ACT AND THE CLEAN
WATER ACT WITH RESPECT TO
CONTRACTS, GRANTS, AND LOANS—
US? OF VIOLATING FACIUT1ES
Subpart . —AdmtnIstr .Uy, Mitten
Policy and purpose
Scope.
Admuu,trstive resportaibility
Definitions.
Exemptions,
Subpart esduru for Ptac$øga
FacfNty oi the Ust o4 YIo tfng Factlftt
15 10 Mandatory listing.
15 11 DIscretionary Listing.
15 12 Notice of filing of recommendation to
list and opportujuty to have a listing
proceeding
15 13 Listing proceeding.
15 14 Review of the Case Examiner’,
decision.
15 13 Effective date of dl3C e ’IQi3r. —
15 18 Notice of listing
Subpart C—Procedures for Removing a
FscfIity From the Ust of Violating F.cuttie,
1520 Removal of. mandatory llsti g
1521 Removal of s discretionary Lit”
1522 Request for rerno al from tht I if
violating facilities
1323 Request for removal hearing
1524 Removal hearing,
1523 Request for review of the dec’sio’, if
the Case Examiner
15 28 EfTecu e date of removal
15 27 Notice of removal
Subpart 0—AQSrICy Coordination
15 30 Agency responsibilit:e,
1531 Agency regulation,
1532 Contacting the As ist nt
Adniiju ,ti’ator
15 33 Investigation by the Assistant
Administrator prior to awarding a
Contrict grant, or loan
1534 Referral by the Assistant
Adnwtiitrator to the Department of
Ju.s uce
Subpart E—UIociian ,o
13 40 Distrtbuu n of the List of Violaitrig
Facilities
15 41 Report,
Authority’ 42 11 S C 7401 et seq. 33 1’ S
1251 et seq. Executive Order 11738 of
Septemberio 1973 (38 FR 28161)
Subpart A—Administrative Matter,
I ILl Policy arid purpoe.
(a) It is the policy of the Federal
Government to improve and enhance
environmental quality This regulatto’- ‘s
issued to ensure that each agency in
Executive Branch of the Federal
Government that is empowered to e” r
into contracts for the procurement of
goods, materials, or services or ‘o
extend Federal assistance by way of
grant, loan, or contract undertakes s:’t
procurement and assistance acti’ i’ es i
a manner that will result in effecti p
enforcement of the Clean Air Act
(CA.A), 42 USC. 7*21 et seq. and the
Clean Water Act (CWA), 33 U SC 1:31
etseq., and does not favor firms whp-p
production costs may be lower due to
noncompliance.
(b) This part establishes the Lis’ of
Violating Facilities, procedures for
placing a facility on the List of Vto’ ’ ;
Facilities, removing a facility frorr tLe
List of Violating Facilities, and
procedures for ensuring that age’lc’es - t
the Executive Branch of the Federal
Government undertake their
procurement and assistance acti’.Ities “i
a mariner that will result in effecti’ e
enforcement of the CA.A and the CV,
415.2 Scope ,
(a) This regulation applies to all
agencies in the Executi e Branch of : e
u 1nurs ay, September 5 1983 I Rules arid RegJaiio s
B
15 1
152
153
154
15 5
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conu acts grants. Or loans This
regulation also app s. to government
coot.ractor, and subcontractors and to
rec ptents of funds under government
grants and Ioa.ns The debarment or
suspension that results from a
mandatory or disc etlan_.azy listing is
facthty .specthc arid does not apply to
other facilitie, of the s e com y
(b) This regulation only &pplies to
contracts, grants. or loans involving the
use of facilities located within the
Untied States
(c) The rights and remedies of the
Gc ernment under these regulations are
not exclusive and do not affect any
other rights or remedies provided by
law
15.3 A ’iWiIstr t’,, rUDonsib 5ty.
(a) Except for the power to issue rules
and regulations, the Assistant
Adzn:rustrator for Enforcement and
Compliance Monitoring and the General
Counsel are delegated authority and
assigned responsibility to carry out the
responsibilities assigned to the
Administrator of the Enitronmerital
Protection Agency under Executive
Order 11738.
(b) The Assistant Adrxumztretor and
the General Counsel are authorized to
redelegate the authority conferred by
this regulation
*15.4 OsMitlona .
“Administrator” means the
Administrator of the Uruted States
Environmental Protection Agency or his
or her designiee.
“Agency’ means any depar ent,
agency establishment, or
tnstru.meritajjt in the Executi e Branch
of the Federal Goiern ,ment. including
corporation, wholl ’ owned by the
Federal Goverrucent which ai ard
contracts, grants, or loans
“Air Pollution Control Agency’ means
any agency i hich is defined in section
302(bl or section 302(c) of the CAA
“Applicant” means any person who
has applied for but has not yet received
a contract. grant. or loan and includes a
bidder or proposer for a contract which
is not yet ai arded
“Assistant Admirusti’ator” means the
Assistant Administrator for
Enforcement and Compliance
Monitoring. United State.
Environmental Protection Agency. or h .
or her designee.
Borrower means any recipient of a
loan as defined below.
“Case Exam.iner” rneaas an EPA
official familiar with pollution control
issues who is designated by the
Assistant Administrator to conduct a
listing or removal proceeding and to
u %ermine whether a facthr will be
placed on the List of Violating Facilities
or r’e oved from such List. The Case
Exarywier may not be: (1) The Usting
OfficiaL (2) the Recommending Person
or anyone subordinate to the
Recommending Person, or (3) closely
l.nvotved in the underlying enforcement
action
“Clean air standards” means any
enforceable rules, regulations,
guidelines, standard., Limitation , .,
orders. controL.. prohibition,., or other
requu’ements which are contained in.
issued under, or otherwise adopted
purluant to the CAA or Executive Order
11738, an applicable t plementauon
plan as described in section 210 (d) of
the CAA. an approved implementation
procedure or plan under section 111(c)
or section 211(d). respectively, of the
CA.A or an approved implementation
procedure under section 112(d) of the
C)
“Clean water standards” means any
enforceable limitation, control
condition, prohibition, standard, or ether
requirement which a established
pursuant to the CWA orcontatried In a
permit issued to a discharger by the
United States Environmental Protection
Agency. or by a State wider an
approved program. as authorired by
section 402 of the CWA. or by a local
government to ensure compliance with
pretreatment regulations as required by
section 307 of the Cean Water Act,
Compliance’ means compliance with
clean air standard. or clean water
standard. For the’purpoae of these
regulations, compliance also shall mean
compliance with a schedule or plan
ordered or approved by a court of
competent jurisdiction, the United States
Environmental Protection Agency. or an
ai or water pollution con ol agenc in
accordance with the requirements of the
CAA or the CWA and regulations issued
pursuant thereto.
“Contract” means any contract or
other agreement made with an
Executive Branch agency for the
procurement of goods. materials, or
services (including construction), and
includes any subcontract made
thereunder.
“Contractor” means arty person with
whom an Executive Branch agency ha.
entered into, extended. or renewed a
contract as defined above, and includes
subcontractors or any person holding s
subcontract
“Facility” means any building. plant.
installation. structure. mane, vessel or
other floating craft. location or site of
operations owned. leased. or supervised
by art applicant contractor, grantee. or
borrower to be used in the performance
of a contract. grant. or loan. Where a
location or site of opera’iocs COn ’r—S
includes more than one buiidir g plir
installation., or structure, the en: e
location or site shall be deemed to be a
facility. except where the Assistant
Admj,rastraio, determines that
independent facilities are located in on.
geographic area.
“General Counsel” mean.s the Genera
Counsel of the U S Environmental
Protection Agency. or his or her
designee
“Governor” means the governor or
principal execuuie officer of a state
“Grant” means any grant or
cooperative agreement awarded by an
Executive Branch agency tnclud ng all
subagreements awarded thereunder
This includes grante-Ln•atd. except
where *uch assistance is solely in the
form of general revenue sharing funds
distribtited under the State arid Local
Fiscal Assistance Act of 19fl. 31 U SC
122 1 el seq
“Grantee” means any person with
whom an Executive Branch agency has
entered into, extended, or renewed a
grant, subgranl. or other assistance
agreement defined under “grant” abo e
“t ,ist of Violating Facilities’ means a
List of facilities which are ineligible for
any agency contract, grant or loan
“List Official’ means an EPA official
designated by the Assistant
Administrator to maintain the List of
Violating Facilities.
“Listing proceeding” means an
informal hearing, conducted by the Case
Examiner. held to determine wnether a
facility should be placed on the Ltst of
Violating Facilities,
“Loan” means an agreement or other
arrangement under which an poruor of
a business. activity, or program t,s
assisted under a loan issued by an
agency and includes any subloan ssie
under a loan issued by an agency
“Person” means any natural person.
corporation, partnership, uxiinco-pora ted
association, State or local government
or any agency inatrunientalit) or
subdivision of such a government or arty
interstate body
“Recommendation to list” means a
written request which has been s’gned
and sent by a recommending pe sori to
the Listing Official asking that EPA
place a facility on the List of Violating
Facilities
“Recommending person” rnears a
Regional Adn’,izustrator, the Associate
Enforcement Counsel for Air or the
Associate Enforcement Counsel for
Water or their successors the Assistartr
Administrator for Aiz and Radiation or
the Assistant Administrator for ‘ eter
or their successors, a Governor or a
member of the public.
-------
- - . . . . e ,p’en’toer 5 1985 1 R’ules arid Regu a’ s 6193
State” means a State. the District of
Columbia. the Commonwealth of Puerto
Rico. the Vir n Lila ods. Guam.
Amencan Samoa. the Commonwealth of
the Northern Marlana Lalands, or the
Trust Territories of the Pacific Lalarid.g.
“Water pollution control a ricy’
means any agency which is defined in
section 5024 1) or section 50242), 33 U S.C.
136 2 (1 ) or 12;. of the CWA.
f 15.3 Ea. p Iors.
(a) (1) Tmnsactior,s of $UVXO and
less Except as provided in I t5 5(b)
below. conu acts grants and loans not
exceeding 5100.000 are exempt from
these r*gulatione This exemption
includes contracts for indefinite
quantities .r service as long as the
purchaser has reason to believe that the
amount to be ordered in any year under
such an agreement will not exceed
5100.000.
(a) (2) Assis nce to abate, control, or
prevent environmental pollution. Except
as provided in 15 5(b) below, a
contract grant. or loan will be exempt
from these regulations when the
principal purpose of a contract, grant. or
loan is to assist the facility or facilities
to comply wth any Federal. State or
local law, regulation. limitation
guideline sta-idard. or other
requirement relat.nig to the sbateisent.
control or pre ention of envu onrnertal
pollution
(bI The exemption in I 155(a) do not
apply where work under the cor aci ii
to be performed at a facility that has
been placed on the List of Violating
I aciliues on the basis of a cnm nal
conivic:iori under section 113(c)(1) of the
CA.A or section 309(c) of the C’ \A and
pe-s ni con cted ow ’s, super ses
or l as t the facthty
Idl .-L aa::r of 4 ercvHeadia Grcn
£ “ eoip:.ors.—.(1) lridn.iduad eteo ’ociong.
here an Agency head deterrrunes that
its in the paramount interest of the
L ‘ited States to enter Into. renew. or
e’ ’end a contract, grant. or loan in
comedian with any facility that ii on
List of Violating Facilities, he or she
may exempt the agreement from the
pro ’ . isioris of this regulation fort period
of one yea: The Agency head granting
‘he e empuon shall noWy the Assistant
Adm nistrator of the exemption as soon.
before or after granting the exemption,
as ma be practicable. The iunuuic’ation
for guLh an exemption. or arty renewal
thereof. sha’l fully describe the purpose
of the contract. grant. or loan and shall
show why thn paramount r .terest of the
United States requires the exemption
(2) C!ass e’enlptions Y ’here art
ag:rtcy head determtnes that itt ! Ifl the
paramount interest of the United States
fur the agency to enter into. extend. or
renew any class of contacts. grants. or
loans, he or she may exempt the class of
agency contracts, grants. or loans from
the provisions of this regulation by rule
Of regulation after consultation with the
Administrator.
Subpart 8—Procadutsa for P1.ckng.
FacilIty on t?ts Ust of ViotsUng
Facliftias
113.10 Mandatory eating.
The Listing Official shall plare a
facility on the Litt of Violating Facilities
if the faciLity which ga e rise to the
convicrion it owned, leased, or
supervised by any perscn who has been
convicted of a criminal oflense under
section 113(c)(1l of the CAA or section
309(c) of the CWA. The mandatory
bating a automatically effective upon
conviction -
l5.t1 O retion eating.
(a) The Listing Official shall place a
facility ott the List of Violating Facilities
if there is a final agency action under
115 12(d). 1513(c) 15 14(c) or 1514(d)
which determines that there is a record
of continuing or recurring
noncompliance with clean air standard,
or dean water standards at the f cility
recommended for listing a r id that
(1) A federal court has convicted any
person under section 1l34cH2) of the
CAA if that person owts. leases, or
supervises a facilty recommended for
listing,
(2) A state or local court has
convicted any person of a crio ’:r.a
offense on the basis of noncornp.ar.ce
with clean air standards or clean water
standards tf that person cv.’ns leases or
suprr i9e9 a facilit recommerded for
listing.
(3) A federal state, or local court has
issued an injunction, order. tudgrrent.
decree (including consent decrees) or
other fcrm of cti il ruling as a result of
noncompliance with clear air or clean
water standards at i fac:lity
recommended for ti,stuug’
(4) The facility has violated any
adxnirustrati.e order issued tinder
section 113(aJ. 113(d). 187. or 303 of the
CAA. or section 3 (a) of the C’tA’A if
the violator owns, leases. or supervises
a facility recommended for bstt:’g.
(5) EPA has issued to the facility a
Notice of Noncompliance under Sect:ort
1 0 of the CAA. or
(8) EPA has filed an enforcement
action in federal court under sections
113(b). 167. 204 205. or 211 of the C.AA
or section 309(b) of the CWA due to
noncompliance with clean air standards
or clean water standards at the facility
recommended for listing
Ib) A recorrt.mendat’oni 10 t’st C.. , , ,
recommending person u’ii”ae, the
process for discretionary l.St r A
recommendation to list must conta -,
(1) The name. address. and teleo”ore
number of the person filing the
recornj’nendaticn.
12) A description of the faci1 : aeged
to be ut noncompliance with clean air
standards or clean water standards.
including the name and address of the
fa ciii ty:
(3) A description of the alleged
continuing or recurring noniconipLanice.
including any available data and any
other pertinent inioimation supporrir.g
the ai!egaucn of noncompliance, arid
(4) A description of the criminal. ci
or administrative action or convict on
under 11511 (a)(1). (a)(2). (aj (3 ). (ah4t
or (a)(5) which is pe’ ti.nent to the faul
and the alleged conunuin.g or rect.rr ‘
noncompliance
(c) The Listing Official shalt re ’e.v
each recommendation to list to ensue
that it complies with all of the
requirements under 115 IlIbi If the-e s
a deflc enc tnt a rgcomrnenca’i:ni the
Listing Offictal must return it to tre
recorrurienii”g person for ec—ec::. . ’u If
there is rio defic ency in the
tecorsunendation to list, the Lst “.
O f:ciaZ shall transmit the
recommendation to the Ass.s’r’’
Admir-strator The Assi t
Adn’inistritc’r ‘ii h o - e c - -
ma
[ t ) Dec ine to list or
(2) Des gna’ a Casa E\2—u ’ : -
accordance witrt j15 I or
(3) Decide to list the f :’ ‘: -
accordance wi’n 1512(l
(d) A rec m’ ing pe:son
withdraw a r c-_ ”ne ’ ida’.: ’ . t
Lnie before the conc:usicn c t.re iii -;
proceeding The recoi’nmen .r eso ’
shall i ithdraw the reco’
liii f the reco mer Iolrg pcs:
determines that the ccnazt :rs w
gave rise to the recanune”da . - “
ha e been ccre:’ed or if ti’ ‘a:
recomnendod for hst:t ’.g is or a:’
aporo ed plan fcr cor’pt :ar.oe
wil’ ensure that the cor.di :’ons i
ga’ e rise to the reco cri latior ’. to
will be corrected
I ¶ 5 12 Notics of i1IIni ’ 0
to lit an d opportunity to Mve I N in
proceeding.
(a) Trie Listing Official shall seri.l to
the owner. operator or super. sor of
facitit riameo ‘.n L’ie reco re ’ida . yi
list written not:e that a
recommendation that the fac::.’ be
placed on the Lz t,cf Violating Fac ‘
has been filed with the Listing O.!-z a
and has been transmitted to the
-------
/ inure ay, September 5 . 1 8 / Rule3 and Reg’.dat aris -
Assistant Administintor. Within thirty
(3O calendar days of the receipt of the
notice, any person who owns. leases. or
supervises the facility may request the
Assistant AdmiJli st?1 (Or to deai ate a
Case Examiner to hold a iting
proceeding for the purpos. of
deierimniri.g the propriety of the
proposed listing
(b) if. listing proceeding Ii requested.
the Luting Official shall udiedule a
listing proceeding and notify In writing
the recommending person and the
person request .ng the hiting proceeding
of the date. time. and location of the
I 1 oceedug 0 ffi 0 51 shal] respond
to any requests from the recommending
person and the person requesting the
listing proceeding conoerning the
procedures for dlsaetloaary listing.
(d) Lf there Ii no timely request for a
listing proceeding under 15.1 a)
above. the Listing Official will place
the facility named in the
recommendation to list an the List of
Violating Facilities oti the basis of
discretionary hating LI. upon reviewing
the recommendation to list and any
other available information, the
Assistant AdnuziisU’atot determines that
there is a record of continuing or
recurring noncompliance with clean air
standards or clea,n water standards at
the facility recommended for listing and
the requisite ciimlnkL civil. or
admimsti aIive enforcement action has
been taken or criminal conviction under
CAA section t13(aR2) c i under State
law has occun ’ed. Such a determination
by the Assistant Admirus ator
constitutes final agency action.
lS.13 Ua ngproos*Jng .
(a) No listing proceeding fo?
mw,doWry listing Mandatory listing is
aNective upon conviction and no listing
proceeding will be provided wheni
facility ii listed on this basis. For
purposes of updating the List of
Violating Facilities. the Associate
Enforcement Counsel for Criminal
Enforcement shall notify the Listing
Official uf the conviction as soon as it
occun.
(b) gprocsedu for
diacr -eLioncr/ bs&zn& (1) A listing
proceeding for disastlonaly listing shall
be conducted in an informal manner
without formal rules of evidenc’ or
procedure. The ‘A and the person
requesting the listing proceeding under
15.1 ,2 ( 5) above may be represented by
legal counseL present oral and written
evidence relevant to the proposed
listing, and . with the approveLof the
Case Examiner. may calL ask questions
of. sad os. ev m1na wttoaus. except
to the extant any testimony would
prematurely reveal sensitive
enforcement information which the
ivernment may legally withhold or
would unduly extend the proceedings in
light of the usefulneu of any additional
Information likely to be produced. The
Case Examiner may take offidul notice
of facts. law, and any other inlctmatioo
available to him other. Tb. Case
Examiner may also request any party to
supplement the record by submitting
additional information.
(2) The Listing proceeding shall be
transcribed, end ‘A shall make
available ‘at coot a transcribed record of
the proceeding upon request by any
person.
(3) To demonstrate an adequate basis
for listing a facility, the record must
show by a preponderance of the
evidence that there Is a record of
continuing or recurring noncompliance
at the facility named In the
recornrnendatlon to list and that the
requisite enforcement action has been
take”-
(c) Case Examzner’s decision. Not
later than thirty (30) calendar days slier
conclusion of the listing proceeding and
any supplementation of the record, the
Case Examiner shall Issue a written
decision on whether or not to list the
facility based on the record of the hating
proceeding and shall ifie that decision
with the Listing Official.
(d) Notification of Cose Examiner’s
decision, The Listing Official shall nobly
In writing the recommending person and
the person who requested the listing
proceeding of the Case Examiner’s
decision and of the opportunity to
request the General Counsel to review
the Case Examiner’s decision under
I 15.14.
11.14 O 5 Vls Case Essmlwvs
(a) Within thIrty (30) calendar days
after notice of the Cue Examiner’s
decision, the owner. operator or
supervisor of the f&duity may file with
the Listing Official a written request
asking the General Counsel to review
the Case Examines’s decision. The
request to review the Cue Examiner’s
decision must centax
1) A statement of the case and the
facts involved in th. recommendation to
hat
(2) A statement of the issues
presented by the recommendation to
list and
(3) A statement showing why the
decision of the Cue Examiner is not
correct based on the record of the listing
proceeding considered u a whole.
(bI Tb. owner. operator or uupervt.sor
of th. facility may raise on review only
those issues railed before the Case
Examiner unless the General Counse’
determines that there is good cause ic
include consideration of any new isues
(c) If the Listing Official receives a
timely request for review of the Case
Examiner’s deeision. the General
Counsel shall review the record of the
Listing proceeding to determine if the
decision of the Case Examiner is correct
based on the record of the hstirg
proceeding considered as a whole As
soon as practicable after receiving the
request for review, the General Counsel
shall issue a final decision in writing
which explains the basis for the final
decision. The General Counsel.
decision shall constitute final agency
action. The General Counsel shall file
the decision with the Listing Official.
(d) The Case Examiner’s decision
constitutes a final agency action for
purposes of d.isaetous.ry listing unless
a timely request for review of the Case
Examiner’s decision Is filed with the
Listing Official in accordance with
• 15. 14(a ).
$11.15 v1acthadateosdIsas onavy
(a) Discretionary lisw.g is effective
immediately upon the issuance of a final
agency action filed with the Listing
Official to place the facility
recommended for hating on the Lisrof
Violating Facilities. or upon a
determination of the Assistant
Administrator under I 15 12(d)
(b) Discretionary listing remains
effective until a removal occurs under
I 15.28.
$11.16 4odCofbW4
(a) Mandatory listing. The Listing
Official shall send written notice to the
owner. peretor or supervisor of the
facility which shall state that the facility
has been placed on the List of Violating
Facilities on the basis of mandatory
listing and the effective date of such
listing.
(b) Discretionary listing The Listing
Official shall send written notice to the
recommending person and any person
who requested a listing proceeding
Informing them of the effective date of
the discretionary listing The Listing
Official shall send written notice to the
owner, operator or supervisor of the
facility U no listing proceeding was
requested.
(ç) Federoi Register notice- The
Listing Official shall publish the
effective date of the placement of the
facility on the List of Violating Facilities
in the Federal Register in accordance
with I 13.40.
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ituur ay. Se e’5er 5 1985 / RuJes arid R eg 1i -s
Subpart C—Procedures for R.mo*ig
a FacIlity From the Ust of Vio*athtg
Facilities
415.20 smovsi of $ mandatory thi5
When the Listing Official hu placed a
facility on the List of Violating Facilities
on the be ia of mandatory hating under
15.10. the facility shall remain on the
1451 of Violatii Facilities until the
Assistant Admirus ator certifies that
the condition giving rise to mandatoxy
listing has been corrected. Where a
conviction has been overturned.
removal ehall be automatic.
4 11.21 fleewv a a d1 eU n.y tbs.
a) When the Listhig Official ha,
pla d a facility on the List of Violating
Facilities on the basic of discretionary
listing under I 15.11. the Listing Official
shall remove the facility from the List of
Violating Facthtiee as provided below
(1) If the conviction. de ee. order.
tudgmerit or other form of ci U ruling or
finding which formed the basis for
discretionary listing under I 15 11(a) has
been reversed or otherwise modified to
remove the basis for discietioriary
listiiig
(2) tIthe Assistant Mnwustrator has
determined that the condauon1sj which
gave rise to discretionary hating have
been corrected. or.
(3) Automatically after one year of a
discretionary Lating under 4 15.11 (a)(41,
(a)(5) or (a)48), unless before the
expiretion of the one-year period * basis
for mandatory listing arises under
415100? e basis for di,aebonary
listuig arises under 4 15 ii (a)(1) (a)(Z),
or a )(3).
(b) The Listing Official shall remove a
facility from the List of Violating
Facilities at the dtrect:on of the
Assistant Adinurustrator if the Assistant
Adxriutistrator deterurunues that the
facility is on a plan for compliance
which will ensure that the coriditwu(s)
which gate rise to disceiionary listing
will be coriected
415.22 Request for r o aI om the
at vioLating tactittt .
(a) The original recommending person
or any pereco who owoc. operates or
supervises a facility that is on the List of
Violating Facilities may file with the
Listing Official a request to remove the
facility from the Last. This request roust
set forth the proposed basis for removal
from the List under ft 15.20 or 15.21.
(b) The Assistant Administrator shall
rev ew the request for removal and shall
issue a decision as expeditiously as
practicable after receiving the request as
to whether the facility will be removed
from the Ust of Violating Facilities.
Failure of the Agency to make a
decision within ss calendar days
constitutes a denial of the request.
(C) The Listing Official .beLi send
written notice to the person requesting
removal informing that person of the
Assistant Administrator i decision and
of the opportunity to request a removal
hearing under * 15.23 i.E the Assistant
Administrator denies the request for
removal.
• ¶5.23 Request for rimovat Mating.
(a) Within thirty (30) calendar days
after the Assistant Administrator denies
a request for removal from the List of
Violating Facilities, the owner. op€tator
or supervisor a! the facility or the
original recommending person may file
with the Listing Official a wnt eai
request fix a removal hearing under
415.24. fb I hi timely request for a
removal hearing under I 15.23fa) us riot
flied. any person who may make a
request for removal wider 4 15.22 (a)
may file a new request for removal
under 4 15-22(a) based on new
information.
I *1.24 Rsm ai MarWig.
(a) A removal hearing shall be
conducted by a Case Examiner
de,i ated by the Assistant
Administrator. The person requesting
the removal hearing must demoastrate
at the removal hearing by a
preponderance of the evidence that a
baste for removal ii pretent
(1) The person requesting the removal
hearmg and the Agency may be
represented by Legal counsel. present
oral and written evidence relevant to
the proposed removal. and, with the
approval of the Case Examiner, call, ask
questions of, arid confront witnesses to
the extent it is relevant to the issue of
removal and to the extent that any
additIonal roformatlon produced will be
useful in light of the additional time such
procedures will take.
(2) The removal hearing shall be
antscrtbed and e sian,ci’tbed record of
the proceeding shall be made available
at cost upon request by the owner.
operator. or lessee of the facility or any
person represented at the hearing
(b) The Federal. State. or local
authority responsible for the
enforcement of clean air standards or
clean water standards with respect to
the listed facility may partcupste in the
removal hearing.
(c) The Case Examiners decision
concerning removal shalt be based
solely upon the record in the removal
hearing.
(d) The Listing Official shall send
written notice to the person requesting
the removal hearing and the Federal.
State. or local authority responsible for
the eciforcernenu of clean a’r s a- . i’:
or clean we’er standards with e rc ’
the listed fac:Ly informing ‘-e of
decision of the Case Examirie ar of
the opportunity to reqoest the
Administrator to review the Cate
Examiner’s decision under 415 5
5*5.25 Request for revise of ni de:isio”
c i eu Ca.. Ezamln.r.
(a) Within thirty (30) calendar di. ,
after the date of the Case Exa ” .irier s
decision under 415 24. ine owner
operator or supervisor of the fact . ‘y
may Me with the Listuig OF c’aL a i.
request for the Administrator to re uew
the Case Exarnzne.r s decus.oni The /
request shall contain.
[ 1) A statement of the iss .es
presented by the request for recto a.
(2) A statement of the case and ‘e
facts involved in the request fur
removal, and
(3) A statement showing why
da sion of the Case E.xa.m.irier is nor
correct based upon the record of the
removal hearing considered as a whoLe
(b) Upoe receiving a timely reçiest f
review of the decision of the Case
Examiner the Administrator shall
review the record of the remc al hea ’-;
to determine if the decision of the Case
Examiner is correct based upon the
record of the removal bearing
considered is a while As soon as
practicable after rece:’ . lng the rtc .es
for review, the Adouruatrior sha
a final decision in wnur.a sraJ
set forth the reasonJ for toe dec s r
The decision shall consut e . al
agency action.
(c) If the tunel request for the
Administrator tO t’e’.iew the Case
E .xamincr’s decision under 413 5 a) s
not filed, the Case Examine’s dec i3: ’
consittutes rinal agency act on at the
expiration of such period
(d) U the request for re’no 1 . a! ‘s dr ” ed
upon review, any person who r a
request for removal under 415 2’
may f’le a new request for rentio a
under 415 22 (a) based ott new
information.
415 21 Eff.ct thtu at rennoval
(a( Mondctory listing Ren’o’. a a
faci iry placed on the List of Vioia’ ;
Facluties on the basis of manda’o
listing shall be effective tnunec a ’a
upon the certification b the Ass s’a’
Adirirustrator that the condttcris)
which gave rise to the mandator is’ —;
under 41510 baa been corrected or
upon the issuance of a Pir.a! age c ’.
action filed wtth.the Lsr.rtg Off & ‘o
remove the listed facility from the L s:
Violating Facilities following a cec s
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‘Dy a Case Examiner under 15 24 or by
the Adimniso’ator under 15 25
(b) Discretionary listing Removal of a
facility placed ott the List of Violating
Facilities on the basis of discretionary
listing shall be effective immediately
upon the expiration of one year under
115 21 (a)(3), or upon the Assistant
Adnunistrator’s decision to remove the
listed facility based u ..’n a timely
written request for remo .l under
I 15 22(al, or upon the issuance of a fInal
agency action flied with the Listing
Official to remove the hated facility
front the List of Violating Facilities
under U 15.24 or 1525
15.37 Notice of rsmo al.
The Listing Official shall send written
notice to the owner, operator or
supervisor of the facility, the
recommending person, and any person
who made a timely written request for
removal under 1522(a). informing
them of the effective date of the removal
of the facility from the List of Violating
Facilities The Lisun,g Official shall
publish the effective date of the removal
in the Federal Register in accordance
with I 15 40
Subpart 0—Apricy Coordirwitlon
15.30 Agency rupons b fttIis.
Each agency shall take appropriate
steps to ensure that all officers and
employees whose duties include
ensuring that all agency contracts.
grants. and loans are in compliance with
applicable requirements are familiar
with the requirements set forth in
Executive Order 11738. this regulation.
the Federal Acquisition Regulations (48
FR 42102. September 19. 1983). and the
EPA Acquisition Regulations (49 FR
8834 March 8. 1g84)
15.31 Agency reguilattons.
Any agency responsible for
promulgating contract. grant. or loan
regulations shall ensure that its
regulations require every nonexempt
agency contract. grant. or loan and
e ery subagreement issued thereu,nder
to irichide the following pro isions’
(a) A promise by the contractor.
grantee or borrower that be or she will
not use any facility on the List of
Violating Facilities in the performance
of arty rionexempt contract. grant. or
loan for the duration of tune that the
facility remains on the List.
(b) A promise by the contractor.
grar.tee. or borrower that he or she will
notify the awarding agency if a facility
he or she intends to use in the
performance of the contract. grant. or
loan is on the List of Violating Facilities
or knowe that it has been recommended
to be placed on the List of Violating
Facilities.
(c) A promise by the contractor
grantee, or borrower that in the
performace of the contract. grant. or
loan, he or she will comply with all
requirements of the C.AA and the
including the requirement. of section
114 of the CAA and section 308 of the
CWA. and all applicable clean a r
standard. and clean water standards.
See Federal Acquisition Regulation. 48
CFR 52.223-i end 52.223-2.
• 15.32 Con cVng the Auis nt
Administrator.
(al Any agency contracting officer or
awarding official shall promptly report.
to his or bar agency bead, or the
designee of the Agency head any
condition which may involve
noncompliance with clean air standards
or clean water standards at any facility
that ii being used, or wiu be used in an
agency contract. grant. or loan. The
report shall uiclude at a nuxuniwxi’the
following information:
(1) The name, telephone number, and
agency of the employee discovering the
condition
(21 The name of the facility at which
the condition exists.
(31 A description of the condition.
(4) The contract. grant. or loan the
agency has issued or may issue, extend.
or renew to the facility at which the
condition exists
(b) The agency head, or his or her
designee. shall transmit any reports
made under 115 32(a) to the Assistant
Administrator as soon as practicable.
after he or she receives the report In
response to the report, the Assistant
Administrator shall take any action that
is consistent with the policy and
purpose of this regulation.
• 15.33 lnv..flgaeon by Aulstartt
Administrator prior to awwdlrt a eonb’ci,
grsn or loan,
(a) if the Assistant Administrator is
notified under 115.32(b) that a condition
which may involve noncompliance with
clean air standards or clean water
standards exists at a facility that is or
may be used in the performance of any
nonexen’ipt agency contract, grant. or
loan, the Assistant Adniuustrator may.
after consultation with the awarding
agency involved, request that the award.
extension, or renewal of the ncnexempt
contract, grant. or Loan be withheld for
fifteen 115) working days to determine if
a basis exists for placing the facility on
the List of Violating Facilitie . under
II 15.10 or 15.11.
fbi lithe Assistant Administrator
requests that art award, extension. or
renewal of a contract, grant. or loan be
withheld under I 15.33(al. the awarding
agency shall comply with the Assistant
Administrator’s request unless it
determines that the delay is
substantially contrary to the best
interests of the go erriment The
awarding agency shall promptly notif
the Assistant Administrator of any suc”
determination
(c) At the end of the fifteen (15)
working.day period, the Assistant
Administrator shall notify the awarding
agency and the applicant of the results
of any investigation undertaken wider
11533(a).
• 15.31 Referral by the Assistant
Admtnhstrato4’ to Oepsrtm.nt 01 Justlc•
The Assistant Administrator may
recommend to the Department of Justice
or other appropriate agency that legal
proceedings be brought or other
appropriate action be taken whenever
the Assistant Administrator becomes
aware of a breach of any provision
required to be included in a contract.
grant. or loan under 11531
Subpart E—Mlsc.llanioui
• 15.40 Otstrtbut$on at the List at Violating
‘The List of Violating Facilities shall be
transmitted to the General Services
Admirustration and Federal agencies
with assistance responsibilities and
published in the Veder.i Register ott or
about February 1 and August 1 of each
year. and updated in the Federal
Register as necessary to reflect changes
to the List as they occur. The list shall
contain the following information.
(a) The name of each fac;lity on the
List:
(b) The location of the facility
(c) The basis for the listing
(d) The effective date of the sucg.
and
(e) Any remo aI of arty facil ,t from
the List.
115.41 Reports.
(a) Agency reports Each Agency head
will report to the Administrator each
exemption granted under I iS 5(b) to fte
Administrator Reports should be made
by November 1 of each year and shoLid
indicate all exemptions granted during
the previous fiscal year
(b) Reports by the Administrator (1)
The Administrator shall report annually
to the President on the measures he or
she has taken toward implemen’ing the
purpose and intent of section 306 of the
CAA. section 508 of the CWA. Execut e
Order 11738. and this reguLation.
including but not limited to the progress
and problems associated with such
implementation
(2) The Administrator shall nottf the
President and the Congress annually of
all exemptions granted or in effect uridrr
1155 during the preceding sear
(FR Ccc 85—2112 5 Fired 9—4—85 8 4 sri)
SluNG CCCI aMa-I C - I
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P ttachrnent WW
DRAFT OF 6-l1--87/Revised/nscommertts/hs6/6th ed.
MEMORANDUM
SUBJECT: Policy on Correcting the Condition Giving Rise to
Listing Under the Contractor Listing Program
FROM: Thomas L. Adams, Jr.
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Assistant Administrator for Air and Radiation
Assistant Administrator for Water
General Counsel
Inspector General
Regional Administrators, Regions I—X
Regional Counsels, Regions I—X
ISSUE PRESENTED : What constitutes correcting the condition
giving rise to listing within the meaning of 40 CFR §415.20 and
15.21.
BACKGROUND : The Environmental Protection Agency (EPA) is provided
authority under §306 of the Clean Air Act (CA.A), 42 U.S.C. §7606,
§508 of the Clean Water Act (CWA), 33 U.S.C. §1368, Executive
Order 11738 and 40 CFR Part 15 (49 Fed. Reg. 30628) to prohibit
any facility owned, leased or supervised by a person convicted of
violating §113(c)(l) of the Clean Air Act, 42 U.S.C. §7413(c)(1),
or §309(c) of the Clean Water Act, 33 U.S.C. §1319(c), or found
to be a source of continuing or recurring CAA or CWA violations
despite previous enforcement actions, from receiving any federal
contract or subcontract. The prohibition against the use of such
facilities continues in the case of a listing action resuLting from
a criminal conviction “until the Administrator certifies that the
condition giving rise to such conviction has been corrected.” 42
U.S.C. §7606, 33 U.S.C. §1368.
This statutory requirement is implemented by regulations
requiring the Assistant Administrator for Enforcement and Compli-
artce Monitoring, as delegatee of the Administrator, to cert.fy
that the condition giving rise to listing has been corrected, see
40 CFR § l5 .20 and 15.21(a)(2) , before a facility may be remov
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Attachn erit WW
2
from the EPA List of Violating Facilities (the List). 1 However,
the statute and its legislative history provide rio definitive
guidance on how that phrase should be interpreted, and the ques-
tion is not addressed in the regulations. The legislative his-
tories of the Clean Water Act and Clean Air Act provide that a
purpose of the contractor listing program is to ensure that “the
Federal Government will not patronize or subsidize polluters
through its procurement practices and policies.” S. Conference
Rep. No. 1236 (to accompany S. 2770, the senate version of the
Clean Water Act), 92nd Congress, 2d Session, reprinted in 1972
U.S. Code Cong. & Ad. News 3776, 3824. The regulations rovide:
“It is the policy of the Federal Government to
improve and enhance environmental quality. This
regulation is issued to ensure that each agency in
the Executive Branch of the Federal Government that
is empowered to enter into contracts for the
procurement of goods, materials or services or to
extend Federal assistance by way of grant, loan, or
contract undertakes such procurement and assistance
activities in a manner that will result in effective
enforcement of the Clean Air Act. . .and the Clean
Water Act. . .and does not favor firms where production
costs may be lower due to noncompliance.” 40 CFR
§15.1.
In addition to the policies cited above, implementation of
the contractor listing program should be carried out in a manner
that achieves the following three goals: (1) compliance with
environmental regulations and swift resolution of environmental
problems (2) fair and equitable treatment of the regulated
community; and (3) deterrence. Furthermore, the administrative
challenges associated with the program can be exacerbated or
I The Contractor Listing Program is composed of two parts:
(1) mandatory listing puruant to 40 CFR §15.10 which occurs auto-
matically upon conviction under §113(c)(l) of the Clean Air Act
or §309(c) of the Clean Water Act and (2) discretionary listing
pursuant to 40 CFR §15.11 based on continuing or recurring
noncompliance with clean air or clean water standards despite
previous enforcement actions. A facility listed under the
mandatory listing program may only obtain removal from the list
on the basi5 of correcting the condition which gave rise to
listing. A facility listed under the discretionary listing
program may be removed from the List by correcting the condition
giving rise to listing as well as other means. Except where
otherwise indicated, the policies contained in this docun ent
apply to requests for removal following mandatory or discretionary
listing.
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Attachment Ww
3
reduced depending on the procedures EPA follows to determine if a
facility is entitled to removal from the List. 2
P1JRP0SE Two approaches have been proposed for defining what
would be necessary to certify that the condition giving rise to
listing has been corrected and grant a facility’s request for
removal from the List following mandatory or discretionary list-
ing. The Physical Correction Approach defines correcting the
condition i ing rise to listing as requiring the facility to
come into compliance with the statutory and regulatory provisions
whose violation led to listing. The Scheduled Correction Approach
defines correcting the condition giving rise to listing as requir-
ing the facility to be subject to an independently enforceable
agreement to perform all corrective action in accordance with a
schedule for compliance established by EPA.
EPA has not formally adopted any definition of what con-
stitutes correcting the condition giving rise to listing. To
date, the listing program has generally required Physical Correc-
tion in determining whether a facility is entitled to be removed
from the List. However, the approaches identified in this policy
document are not mutually exclusive. Formal adoption of the Phys-
ical Correction Approach and Scheduled Correction Approach would give
EPA greater flexibility in carrying out the contractor listing
program and will better permit EPA to achieve its broader goals of
enhancing compliance and improving the environment.
The purpose of this policy document is to present these
two approaches 1 identify the rationale supporting each approach 1
establish criteria for applying each, and identify four nonex-
clusive mechanisms for meeting the requirements of the second
approach. The policies established in this policy document would
apply to requests for removal filed following mandatory or
discretionary listing.
CRITERIA : Any definition of what is necessary to certify
that the condition giving rise to mandatory listing has been
corrected mu5t provide for the following:
2 As the legislative history to 5O8 of the Clean Water Act
acknowledged: “The effectiveness of this section would depend on
fast, accurate dissemination of information. . All Federal agencies
would have to be rapidly apprised of any abatement order or
conviction which would bar a facility from eligibility for Federal
contracts. The Administrator would also have to act expeditiously
to certify that a facility had achieved compliance and notify
all Federal agencies of that fact. Delays in reporting such
information, leading to inaccurate public disclosures, wo .ild
quickly render this section unworkable.” S. Rep. No. 414 (to
accompany S. 2770, the senate version of the Clean Water Act),
92nd CongresS 1 2d Session, reprinted in 1972 U.S. Code Cong. &
Ad. News 3668, 3749—3750.
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Attachment WW
4
0 Enforceability - There must be adequate incentives for the
facility to rrect the Condition and there must be an
efficient means for EPA, at its sole discretion, to enforce
the requirement to take corrective action.
0 Verifiability — There must be sufficient credible and veri-
fiable information generated by a source other than the
violator to permit EPA to make an independent judgment
that the condition has been corrected.
• Certainty — There must be sufficient assurance that the
facilit iwjll be in compliance with the statutory and
regulatory requirements associated with the Conviction to
permit the Assistant Adminjstrator for Enforcement and
Compliance Monitoring to certify that the condition that
gave rise to listing has been corrected.
0 Certification by the Violator — A responsible executive of
the facility must certify, subject to the sanctions of
18 U.S.C. §1001, that the condition has been corrected.
The two approaches, and the manner in which they meet these
criteria, are described below.
PHYSICAL. CORRECTION APPROACH : In order to correct the condition
that gave rise to listing, a facility must demonstrate that it is
presently in compliance with the specific statutory and regulatory
requirements which were the subject of the criminal Conviction or
judicial order in the underlying criminal, or civil enforcement
action.
Discussion : The Physical Correction Approach would require a
listed facility to come into compliance with the statutory and
regulatory requirements whose violation led to listing before a
request for removal would be granted. This approach provides
enforceability by conditioning removal from the List on the
completion of all corrective action. Verifiability is provided
through an inspection of the facility by EPA, the state or an
independent, credible third—party. Certainty that the facility
will be in compliance with the statutory and regulatory require-
ments associated with the violation is ensured since compliance
must be demonstrated before the request for removal is granted.
Finally, an officer of the facility will be required to submit
a written statement, subject to the criminal, sanctions provided
by 18 U.S.C. §1001, certifying that all corrective action has
been completed before removal is granted.
SCHEDULED CORRECTION APPROACH : In order to correct the condition
that gave rise to mandatory listing , a facility must be subject
to an independently enforceable obligation to take all steps
necessary to bring the facility into compliance with the specific
statutory and regulatory requirements which were the subject of
the criminal conviction or judicial order in the underlying
criminal or civil enforcement action and to carry out any addi-
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Attachment ww
5
tional corrective action which EPA may identify. If the facility
fails to come into compliance according to the schedule set by
EPA, the Agency, at its sole discretion, may automatically place
the facility back on the List.
Discussion : The Scheduled Correction Approach would permit EPA
to grant a facility’s request for removal from the List if the
facility’s future compliance is ensured by an appropriate independ-
ently enforceable obligation to carry out the necessary corrective
action identified by EPA. It allows earlier removal from the
List with compliance ensured by an enforceable obligation other
than the listing sanction plus EPA’s right to automatically
relist the facility immediately on the basis of the Agency’s
determination that the facility has not met the compliance
schedule.
This approach can be implemented using alternative mechanisms
which impose an independently enforceable obligation on the
facility to complete all corrective action. Four nonexclusjve
options for implementing this approach are described below.
This policy does not prefer the use of one mechanism over another
and no inference should be drawn from the order in which the
Options are listed. EPA retains the sole discretion to grant
removal under the Scheduled Correction Approach and the sole
discretion to determine which mechanism can biThsed to meet the
requirements of the Scheduled Correction Approach in each case.
CONSENT DECREE MECHANISM : If a facility is subject to a judicial-
ly enforceable federa1 r state consent decree containing an
acceptable compliance schedule and the facility acknowledges EPA’s
right to automatically place it back on the List for failing to
meet that schedule, EPA will have sufficient assurance of the
facility’s future compliance to certify that the condition
giving rise to mandatory listing has been corrected.
Discussion : The contempt power of the court and EPA’s right to
automatically relist the facility provide the means for enforcing
the facility’s obligation under the consent decree to complete
corrective action. The court’s contempt powers and EPA’s relisting
rights also provide certainty that all corrective action will be
accomplished. Verifiability is provided through an appropriate
inspection and an officer of the facility must submit a written
statement, subject to 18 U.S.C. §1001, certifying that all correc-
tive action has been taken before EPA will join in a motion to
dissolve the consent decree. If the consent decree is modified
Without EPA approval, the Agency will not be bound by the modif i-
cation and will retain the right to relist the facility according
to the terms originally agreed upon by EPA.
PROBATION ORDER MECHANISM : If, in cases involving a criminal con-
viction, an acceptable compliance schedule is included in the
probation order issued by the court and the facility acknowledges
EPA’s right to automatically place it back on the List for failing
to meet that schedule, EPA will have sufficient assurance of the
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Attachment ww
6
facility’s future compliance to certify that the Condition giving
rise to mandatory listing has been corrected.
Discussion : The contempt power of the court and EPA’s right to
automatically re].ist the facility provide the means for enforcing
the defendant’s obligation to complete the corrective action
embodied in the court’s probation order and provide certainty
that all corrective action will be completed. Verifiability is
provided by inspections to determine if the defendant is complying
with the terms of probation and the defendant or an appropriate
officer of the facility must submit a written statement, subject
to 18 U.S.C. §1001, or make an oral statement in open court while
subject to sanctions for false statement equivalent to 18 U.S.C.
§1001, certifying that all corrective action has been taken before
the defendant s released from probation. If the terms of
probation are modified without EPA approval, the Agency will not
be bound by those modificatojns in carrying out the listing
program and will retain the right to relist the facility according
to the terms originally agreed upon by EPA.
ADMINISTRATIVE ORDER PLUS PERFORMANCE GUARANTEE MECHANISM : If a
facility is subject to a federal or state AdministratjvjQrd r
that contains an acceptable compliance schedule, the facility
provides an acceptable performance guarantee and the facility
acknowledges EPA’s right to automatically place it back on the
List for failing to meet the compliance schedule, EPA will have
sufficient assurance of the facility’s future compliance to
certify that the condition giving rise to mandatory listing has
been corrected.
Discussion : This approach provides enforceability through judi—
cial enforcement of the administrative order and EPA’s right to
automatically relist the facility. Certainty that the corrective
action will be completed is provided by a performance guarantee,
such as a performance bond, that makes a third party responsible
for completing the corrective action identified in the administra-
tive order. Verifiability is provided through appropriate inspec-
tions and an officer of the facility will be required to submit a
written statement, subject to 18 U.S.C. §1001, certifying that all
corrective action has been completed before the administrative
order will be dissolved. If the administrative order is modified
without EPA approval, the Agency will not be bound by those
modifications in carrying out the listing program and will retain
the right to relist the facility according to the terms originally
agreed upon by EPA.
PERMIT AUTHORITY MECHANISM : If a compliance schedule is included
in a permit issued by EPA or the State, the facility provides an
acceptable performance guarantee, and the facility acknowledges
EPA’s right to automatically place it back on the List for failing
to meet the compliance schedule, EPA will have sufficient assurance
of the facility’s future compliance to certify that the condition
giving rise to mandatory listing has been corrected.
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Attachment WW
—7—
Discussion : Enforceability is provided through the ability to
rescind the permit and relist the facility. Certainty is provided
through the performance guarantee. Verifiability is ensured
through the normal regulatory inspection schedule. An officer of
the facility will be required to submit a written statement,
subject to 1.8 U.s.c. §1001, certifying that the corrective
action has been completed before EPA will modify the permit to
terminate EPA’s right to relist the facility. If the permit is
modified without EPA approval, the Agency will not be bound by
those modifications in carrying out the listing program and will
retain the right to relist the facility according to the terms
originally agreed upon by EPA.
APPLICABILITy : The policies and procedures established in this
document are intended solely as guidance for government personnel..
They are not intended, and cannot be relied upon, to create any
rights, substantive or procedural, enforceable by any party in
litigation with the United States. EPA reserves the right to
act at variance with these policies and procedures and to change
them at any time without public notice.
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xYz
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Attachment XX
Draft of May 29, 1987
CONTRACTOR LISTING POLICY STATEMENT
SUBJECT Independent verification that requirements for removal
have been met in mandatory listing cases.
QUESTION PRESENTED: Under what circumstances should the Environ-
mental Protection Agency (EPA) require independent
verification that the condition giving rise to mandatory
listing has been corrected before granting a request to
remove a facility from the List of Violating Facilities
(the List)? What form should that verification take?
ANSWER PRESENTED: A presumption exists that the Agency will
always require independent verification that the facil-
ity has corrected the condition giving rise to the
listing in every mandatory listing case prior to grant-
ing a request for removal. That verification can take
the form of an appropriate inspection by EPA, a State,
or an independent, credible third—party.
DISCUSSION AND RATIONALE: The mandatory listing program of §306
of the Clean Air Act (42 U.S.C. §7606) and §508 of the Clean
Water Act (33 U.S.C. §1368), as implemented by the regulations
in 40 CFR Part 15, provides that facilities owned, leased or
supervised by a person convicted of violating §113(c)(l) of the
Clean Air Act, 42 U.S.C. §7413(c)(l), or §309(c) of the Clean
Water Act, 33 U.S.C. ‘ l3l9(c), shall not be utilized in the
performance of any nonexempt federal contract or subcontract.
The prohibition against the use of such facilities continues
until the Assistant Administrator for Enforcement and Compliance
Monitoring certifies that “the condition giving rise to mandatory
listing has been corrected.”
In order to determine if a facility is entitled to be removed
from the List, EPA will require information showing that the facility
has corrected the condition that gave rise to listing. It is the
policy of EPA that this information must include some form of
independent and credible verification of the corrective action
performed by the facility. Verification will normally take the
form of a federal, state or third—party audit or evaluation of
the facility where the violation occurred to ensure that the
facility is operating in compliance with the specific statutory
and regulatory requirements involved in the Listing action.
It is recognized that there may be cases in which on-site
verification is not appropriate. In those situations, some other
credible form of verification that the facility has corrected the
condition that gave rise to mandatory listing could be substituted.
This policy recognizes that EPA will accept independents
credible verification provided by third parties. and contemplates
that inspections could be performed by officials of the State in
which the facility is located or by independent contractors.
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Attachinent XX
—2—
However, EPA retains the right, at its sole discretion 8 to
accept or reject, in whole or in part, information offered in
support of a request for removal and to determine the credibility
of that information. Before an inspection or other form of
verification supplied by a third-party would be accepted by EPA
as the sole basis for granting a request for removal, the regional
office for the Region in which the facility is located would have
to be satisfied that the verification was credible and endorse or
otherwise concur in all of the findings of the third party.
CROSS REFERENCES:
§306 Clean Air Act, 42 U.S.C. §7606
§508 Clean Water Act, 33 U.S.C. §1368
§113(c)(1) Clean Air Act, 42 U.S.C. §74l3(c)(1)
§309(c) Clean Water Act, 33 U.S.C. §1319(c)
40 CFR Part 15
Contractor Listing Protocols
Policy on Correction [ DATE]
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Att-. chment YY
Draft of May 29, 1987
CONTRACTOR LISTING POLICY STATEMENT
SUBJECT: Definition, for purposes of removal, of the “condition”
that gives rise to mandatory Listing.
QUESTION PRESENTED: What constitutes the “condition” that must
be corrected in order for a listed facility to qualify
for removal from the mandatory list?
ANSWER PRESENTED: The “condition” giving rise to mandatory listing
is defined as: (1) the specific statutory violation(s)
alleged in the indictment or information for which a
conviction was obtained, taking into consideration the
regulatory context of the violation; and (2) is presumed
to include environmental harm resulting from the viola-
tion only when that harm is (a) readily identifiable
and demonstrable; (b) directly susceptible to remedial
action; Cc) demonstrably linked to the violation(s)
which gave rise to the listing; and (d) segregable from
other environmental damage not related to the instant
violation(s).
DISCUSSION AND RATIONALE: The mandatory listing program of §306
of the Clean Air Act (42 U.S.C. §7606) and §508 of the Clean
Water Act (33 U.S.C. §1368), as implemented by the regulations
in 40 CFR Part 15, provides that facilities owned, leased or
supervised by a person convicted of violating §l].3(c)(l) of the
Clean Air Act, 42 U.S.C. §74l3(c)(l), or §309(c) of the Clean
Water Act, 33 U.S.C. §1319(c), shall not be utilized in the
performance of any nonexempt federal contract or subcontract.
This prohibition continues until the dmiriistrator “certifies
that. the condition giving rise to such conviction has been
corrected. “1
This statutory requirement is implemented in the regulations
by requiring the Assistant Administrator for Enforcement and
Compliance Monitoring, as the delegatee of the Administrator, to
certify that the “condition giving rise to mandatory listing has
been corrected,” before a facility can be removed from the List.
The Agency is adopting an interpretation of the term “condi-
tion” that will ensure that the subject matter of a removal
action extends only to that conduct for which a conviction was
obtained. While one could interpret the statutes to empower the
contractor Listing program to require a facility to comply with
all environmental laws or with all requirements of the CAA or
CWA, the Agency will apply the contractor listing remedy:
To ensure that the specific violative activities that gave rise
1/ The term “conviction” is not explicitly defined in the statute
or regulations.
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Attachment YY
—2—
to the listing have ceased, and to ensure that the facility has
fully embraced the regulatory programs implemented under relevant
statutory authorities.
While the statutes identify what acts or failures to act
give rise to criminal, violations, those violations must be viewed
in the context of the regulatory program which governs the facil-
ity’s conduct. This is necessary for two reasons. First, in
many cases, a statutory violation will be based on the facility’s
failure to comply with a specific regulatory requirement. Second,
it may often be necessary to consider how a violation fits into
the overall regulatory program to understand the exact nature of
the violation(s) and thus the I conditionH which must be corrected.
Consequently, the Agency must determine on a case—by-case basis
the specific action necessary to correct the condition giving
rise to mandatory listing.
The statutes can be understood to empower the Agency to
conclude that in all instances the ‘condition” giving rise to
mandatory listing could include environmental harm that resulted
from the violation. The Agency has determined, however, that for
current purposes, the ‘condition” giving rise to mandatory listing
will be presumed to include environmental harm only where existing
environmental degradation can be linked directly to the violation(s).
Remedial action to ameliorate the environmental harm caused by a
violation may be a prerequisite to removal from the List in cases
where environmental harm is (1) readily identifiable and demon-
strable; (2) directly susceptible to remedial action; (3) demon—
strab3.y linked to the violation(s) which gave rise to the listing;
and (4) segregable from other environmental damage not related to
the instant violation(s).
CROSS REFERENCES:
§306 Clean Air Act, 42 U.S.C. §7606
§508 Clean Water Act 33 U.S.C. §1368
§l13(c)(l) Clean Air Act, 42 U.S.C. §74l3(c)(l)
§309(c) Clean Water Act, 33 U.S.C. §1319(c)
40 CFR Part 15
Contractor Listing Protocols
Policy on Correction [ DATE]
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Attachment ZZ
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
.4 pRO’
OFFICE OF ENFORCE4E T
N l 2 6
MON ITO R I JG
MEMO RANDOM
SUBJECT: Guidance on Implementing the Discretionary Contractor
Listing Program
FROM: Thomas L. Adams, Jr.
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Assistant Administrator for Air and Radiation
Assistant Administrator for Water
General Counsel
Inspector General
Regional Administrators, Regions I—X
Regional Counsels, Regions I-X
I. Purpose
This document establishes Agency policy and procedures for
implementing the discretionary contractor listing program in EPA
enforcement proceedings. It should be read in conjunction with
the final revisions to the contractor listing regulations (40 CFR
Part 15, 50 FR 36188, September 5, 1985), and the guidance document,
“Implementation of Mandatory Contractor Listing” (General Enforce-
ment Policy No. GM—32, August 8, 1984). The procedures to be
followed in all contractor listing actions are contained in the
rule and are summarized in an Appendix to this document. This
policy applies only to discretionary listing proceedings and super-
sedes the “Guidance for Implementing EPA’s Contractor Listing
Authority” (General Enforcement Policy No. GM—3l, July 18, 1984).
The revisions to the contractor listing regulations, together
with this guidance document and other management initiatives, should
encourage greater use of the Agency’s listing authority and should
expedite the process for listing a facility.
II. Background
The Clean Air Act (CAA), Section 306, and the Clean Water Act
(CWA), Section 508, as implemented by Executive Order 11738, authorize
EPA to prohibit facilities from obtaining federal government contracts,
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grants or loans (including subcontracts, subgrants and subloans),
as a consequence of criminal or civil violations of the CAA or CWA.
Commonly called “contractor listing,” this program provides EPA
with an effective administrative tool to obtain compliance with
the CAA and CWA where administrative or judicial action against a
facility has failed to do so.
On July 31, 1984, EPA proposed revisions to the contractor
Listing regulations (40 CFR Part 15 (49 FR 30628)) to simplify and
clarify the procedural opportunities which EPA will provide to
parties to listing or removal actions and to provide for mandatory
(i.e.. automatic) listing of facilities which give rise to criminal
convictions under Section 113(c)(1) of the CAA or Section 309(c)
of the CWA. Final rules were promulgated on September 5, 1985
(50 FR 36188).
III. Appropriate Cases for Discretionary Listing Recommendations
In numerous cases, initiation of a listing action has
proved to be effective in achieving more expeditious compliance
and case settlements. While regional offices should consider
making contractor listing recommendations in every case where
the criteria of 40 CFR Part 15 are met, listing is a tool to
be used in conjunction with other enforcement actions. (See IV.
Standard of Proof in Li8tirt Proceedings , page 4.) The circumstances
surrounding each case will dictate whether a listing action should
be initiated. In particular, use of listing may be appropriate in
the following cases:
A. Violations of Consent Decrees
Regional offices should strongly consider making listing
recommendations for all cases of noncompliance with consent decrees
under the CAA or CWA. The recommendation should be prepared at
the earliest possible time after the Region learns of noncompliance
with the decree, but no later than the filing of a motion to enforce
the decree. Initiation of the listing action should be supplementary
to, and not in lieu of, a motion to enforce the decree. Where a
consent decree covers CAA or CWA violations as well as violations
of other environmental statutes, such as the Resource Conservation
and Recovery Act (RCRA) or the Toxic Substances Control Act (TSCA)
(where EPA doe. not have contractor listing authority), a listing
recommendation also should be considered.
B. Continuin or Recurring Violat .ons Following
Filed Civil Judicial Actions
Where EPA has filed a civil judicial enforcement action, the
Regional Office should initiate a listing action at the earliest
possible time after it determines that: (1) noncompliance is
ongoing, (2) the defendant is not making good faith efforts to
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comply, and (3) an expeditious settlement does not appear likely.
For example, a defendant may make a firm settlement offer that is
far below the economic savings it realized from its noncompliance,
making settlement unlikely.
Similarly, where EPA initiates a multi-media civil enforcement
action against violations under the CAA or CWA and other environ-
mental statutes (such as RCRA or TSCA), and continuing water or
air compliance problems exist without good faith corrective efforts,
the Region should consider bringing a listing action. Therefore,
it is important that all CAPI and CWA counts be included in a multi-
media enforcement action.
C. Violations of Administrative Orders
Where noncompliance continues after an administrative order
has been issued under the CAA or CWA, and the R gional Office
determines that the facility is not making sufficient efforts to
con e into compliance, a listing recommendation should be considered.
Initiation of a listing action generally should not be in lieu of
filing a civil judicial action to enforce the administrative order,
but should support the civil action. The Regional Office should
consider initiating a listing action at the same time that it
files the civil judicial action.
D. Multi-Facility Noncompliance within a Single Company
Contractor listing can be an effective tool to address a
pattern of noncompliance within a single company. Where continuing
or recurring CAA or CWA violations occur at two or rt re facilities
within the same company, and EPA previously has taken an enforcement
action against each, the Regional Office should consider making
listing recommendations in all such cases.
While each facility’s continuing or recurring noncompliance
must be proved separately (i.e., one may not use one violation from
branch facility A and one violation from branch facility B to
constitute the minimum two violations required), one listing recom-
mendation describing noncompliance at two or more facilities may be
submitted to the Assistant Administrator for the Office of Enforce-
ment and Compliance Monitoring (OECM). A joint listing proceeding
may be held concerning all facilities. Joint consideration of two
or more facilities’ violations will require fewer Agency resources
than listing each facility separately. It will, also discourage
companies from switching government contracts from a listed facility
to another facility without taking steps to correct the violations
which gave rise to the listing.
To accomplish this, the Regional Office, with headquarters
staff support, should review the EPA enforcement docket to 8ee if
a potential listing candidate has committed CAA or CWA violations
at other company facilities. Note that a company’s facilities may
be known by the parent company name or by the names of company
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subsidiaries. RegionaL offices may obtain information on
other company- facilities from Charlerie Swibas, Chief 1 Information
Services Section, NEIC (FTS 776—3219), who will search EPA’s
Facility Index System which lists this information for all EPA
regions, or provide a Dunn arid Bradstreet report containing this
information.
The Region may also request data on administrative orders
issued against a company under the headquarters Permit Compliance
System (for CWA violations) and the Compliance Data System (for
CAA vLolations). In some cases EPA has issued administrative
orders and filed civil enforcement actions against company facil-
ities which are located in more than one region. Such multi-regionaL
inquiries may be coordinated with the Headquarters participating
attorney and the Agency’s Listing Official.
E. Other Circurristances Where Listing is Appropriate
The regulation provides two other situations where Listing may
be appropriate. First, EPA can list a facility after it has issued
a Notice of Noncompliance under Section 120 of the CAA. The threat
of Listing in combination with noncompliance penalties can impose a
sufficiently severe economic cost on a facility to encourage efforts
to achieve both compliance and quicker settlements. Second, Regional
Offices may recommend Listing when a state or local court convicts
any person who owns, operates, or leases a facility of a criminal
offense on the basis of noncompliance with the CAA or the CWA.
They also may recommend listing when a state or local court has
issued an injunction, order, judgement, decree (including consent
decrees), or other civil ruling as a result of noncompliance w .th
the CAA or CWA.
IV. Standard of Proof in Listing Proceedings
It will be the responsibility of the Office of Regional
Counsel to represent the Agency at any listing proceeding (where
one is requested by the affected facility). According to 40 CFR
Section 15.13(c), “(t)o demonstrate an adequate basis for listing
a facility, the record must show by a preponderance of the evidence
that there is a record of continuing or recurring non-compliance
at the facility named in the recommendation to List arid that the
requisite enforcement action has been taken.”
“Requisite enforcement action” can be established by reference
to an issued administrative or court order, or a filed civil judiciaL
action. “Continuing or recurring” violations are understood to
mean two or more violations of any standard at a facility, which
violations either occur or continue to exist over a period of time.
Such a violation occurs even when different standards are violated
and time has elapsed between violations. Thus, in a listing proceed-
ing, it is riot necessary to prove all violations of CAA or CWA
standards alleged in the underlying enforcement action. Nonetheless,
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the regional attorney must carefully review the sufficiency of the
evidence and e ’aluate anticipated defenses.
V. Fairness Concerns in EPA Use of Contractor Listing
It is the intent of this guidance document to encourage the
use of the Agency’s contractor listing authority i t t appropriate
cases. However, it must be recognized that listing is a severe
sanction. Before making a recommendation in any case, the Regional
Office should determine that the continuing or recurring noncompli-
ance involves clearly applicable CM or CWA standards. Likewise,
Agency enforcement personnel must be careful i t t using Listing
terminology during discussions with defendants. During settlement
negotiations, for example, it is certain],y proper for EPA to advise
a defendant of the range of available EPA enforcement authorities,
including contractor listing. However, EPA personnel must distin-
guish between a 1.istirig recommendation (made by a “recommending
person,” usually the Regional Administrator, to the Assistant
Administrator for OECM), a notice of proposed listing by the Agency
to the affected facility (which is sent by the Listing Official
after a preliminary decision to proceed is made by the Assistant
Administrator for OECM), and a final decision to list which is made
either by an Agency Case Examiner at the end of a listing proceeding,
or by the Assistant Administrator for OECM if no listing proceeding
is requested. Where appropriate, EPA personnel should explain that
the RegionaL Administrator’s Listing recommendation does riot coristi-
tute a final Agency decision to list.
VI. Press Releases on Contractor Listing Actions
EPA will use press releases and other publicity to inform
existing and potential violators of the CM and the CWA that EPA
will use its contractor listing authority in appropriate situations.
The L Jovember 21, 1985, “Policy on Publicizing Enforcement Activities’
(GM—46), states that “ [ i]t is EPA policy to issue press releases when
the Agency: (1) files a judicial action or issues a major adminis-
trative order or complaint (including a notice of proposed contractor
listing and the administrative decision to list)....’ As discussed
in that policy, the press release should be distributed to both the
local media in the area of the violative conduct and the trade
press of the affected industry.
VII. Coordination with the Department of Justice
To ensure that information presented during a listing proceeding
will not compromise the litigation posture of any pending legal
action against a party, EPA will coordinate with the Department of
Justice (DO%J) before a recommendation to list is made to the Assis-
tant Administrator for OECM. If the recommending party is an EPk
regional office official, he or she shall coordinate with the
appropriate DOJ attorney before a recommendation is submitted to
the Listing Official. He or she shall also provide the DOJ attor-
ney’s comments to the Listing Official as part of the recommendation
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package. If the recommending party is not an EPA official, the
Listing Official shall coordinate with the EPA Office at Regional
Counsel and the appropriate DOJ attorney before a recommendation
to list is presented to the Assistant Administrator Ear OECM.
VIII. Applicability of Contractor Listing to Municipalities
Municipalities are subject to listing under appropriate cir—
curnstances. State and local governments and other municipal bodies
are specifically identified by 40 CFR §15.4 as “persons ’ whose
facilities may be listed. The standards for recommending that a
municipal facility be listed are the same as those for listing
other facilities. Listing may not be the most effective enforce—
rnent tool in many municipal cases because often the only federal
funds received by a municipal facility are grant funds to abate or
control pollution, which are exempted from the listing sanction by
40 CFR §15.5. However, listing still should be considered in cases
where a municipal facility receives nonexempt funds or where the
principles underlying the listing authority otherwise would be
furthered by a recommendation to list.
IX. Use of Listing in Administrative Orders
Enforcement offices may wish to inform violating faci.lities
early in the enforcement process of the possibility of being listed.
Many facilities do not know about the listing sanctiort such knowL-
edge may provide additional impetus for a facility to take steps
to come into compliance. For example, some EPA re9ions notify
facilities whose violations make them potential c andidates for
listing of this possibility in the cover letter which .iccompanies
an administrative order requiring them to take action to correct
their noncompliance.
X. Obtaining Information Concerning Government Contracts
Held by a Facility Under Consideration for Listing
After an EPA recommending person, usually the Regional
Administrator, has submitted a listing recommendation to the
Listing Official, the regional office attorney handling the
case may require the facility to provide a List of aLL federal
contracts, grants, and loans (including subcontracts, sub-
grants, and subloans). To insure that such a requirement is
riot imposed prematurely, the regional office attorney should
require this information from a facility only after advising
the Listing Official of his or her intention to do so. Requi.r .ng
this information from the facility is not a prerequisite Ear
listing a facility.
Requiring this information from a facility may be accom-
plished by telephone or through a letter similar to the models
provided in Attachments D and E. Attachment D is a model letter
requesting information from a facility which is violating an
administrative order issued under the authority of the Clean
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Water Act for .violating it3 National Pollutant Discharge Elimination
System (NPDES permit. Attachment E is a letter to a facility
which EPA and the Department of Justice have filed a civiL suit
against for violating the Clean Air Act. Regional office attorneys
may elect to have such a request letter serve as notification to
the facility that EPA is considering instituting a listing action 1
or they may wish to inform the facility before sending such a
letter. Which approach is taken will depend on the regional office
attorney’s judgment of the notification’s effects on the overall
case against the facility.
XI. Kead uarters Assistance in Preparing and Processing
Listing Recommendations
In order to encourage the use of the contractor listing author-
ity in appropriate cases, OECM staff have been directed to assist
regional offices in preparing listing recommendations. Attached
are model listing recommendations indicating the level of detail
and support that should be provided with recommendations. (See
Attachments A, B, and C for model listing recommendations.) Where
a Listing recommendation is sufficient, the Assistant Administrator
for OECM will, decide whether to proceed with the listing action
under Section 15.11(c) (i.e., by directing the Listing Official to
issue a notice of proposed listing to the affected facility) within
two weeks after receiving the recommendation. Questions concerning
contractor listing may be directed to the Agency Listing OfficiaL,
Cynthia Psoras,, LE—130A, FTS 475—8785, E-Mail Box EPA2261.
Attachments
CC: John Ulfelder
Senior Enforcement Counsel
Associate Enforcement Counsel for Air
Associate Enforcement Counsel for Water
Director, Office of Water Enforcement and Permits
Director, Stationary Source Compliance Division
Director, Office of Compliance Analysis and Program Operations
Director, NEIC
Director, Water Management Division (Regions I-X)
Director. Air Management Division (Regions I, III, V and IX)
Director, Air and Waste Management Division (Regions II and Vt)
Director, Air, Pesticides and Toxics Management Division
(Region Iv)
Director, Air and Toxics Division (Regions VII, VIII and X)
David Buente, Department of Justice (DOJ)
Nancy Firestone, DOJ
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Appendix A-i
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Appeud.i. x
The Listing Program and Final Revisions to 40 CFR Part 15
A. Mandatory Listing
If a violation at a facility gives rise to a criminal con-
viction under Section 113(c)(1) of the CAA or Section 309(c) of
the CWA, listing of the facility is mandatory (and effective upon
conviction under 40 CFR Section 15.10). As soon as a conviction
occurs, the Director of the Office of Criminal Enforcement,
within the Office of Enforcement and Compliance Monitoring (OECM),
must verify the conviction and notify the Listing Official. The
Listing Official. sends written notification to the facility and
to the Federal Register . Both documents must state the basis for
arid the effective date of the mandatory Listing.
Removal from the mandatory list may occur only if: (1) the
Assistant Administrator certifies that the facility has corrected
the condition that gave rise to the criminal conviction under
Section 113(c)(l) of the CAA or Section 309(c) of the CWA, or (2)
a court has overturned the criminal conviction. The August 8,
1984, memorandum, Implementation of Mandatory Contractor Listing,’
(GM—32) discusses the procedures for mandatory listing in more detail.
B. Discretionary Listing
1. Basis for Discretionary Listing
The following enforcement actions may serve as a basis for
discretionary listing if there is also a record of continuing or
recurring noncompliance at a facility:
a. A federal court finds any person guilty under Section
113(c)(2) of the CAA, if that person owns, leases,
or supervises the facility.
b. A state or local court convicts any person of a
criminal offense on the basis of noncompliance with
clean air or clean water standards if that person
OWflS, leases, or supervises the facility.
c. A federal, state, or local court issues an injunction,
order, judgment, decree (including consent decrees),
or other form of civil ruling as a result of non-
compliance with the CWA or CWA at the facility.
d. The facility is the recipient of a Notice of
Noncompliance under Section 120 of the CAA.
e. The facility has violated an administrative order
under:
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o CAA Section 113(a)
CAA Section 113(d)
° CAA Section 167
o CAA Section 303
CWA Section 309(a)
f. The facility is the subject of a district court
civil enforcement action under:
° CAA Section 113(b)
• CAA Section 167
o CAA Section 204
o CAA Section 205
° CAA Section 211
° CWA Section 309(b)
2. The Discretionary Listing Process
a. Listing Recommendation and otice of Proposed Listing
The discretionary listing process begins when a “recommending
person” files a listing recommendation with the Listing Official.
Recommending persons may include any member of the public, Regional
Administrators, the Assistant Administrator for Air arid Radiation.
the Assistant Administrator for Water, the Associate Enforcement
Counsel for Air, the Associate Enforcement Counsel for Water, arid
the Governor of any State. The recommendation to list: (L) states
the name, address, and telephone number of the recommending person;
(2) identifies the facility to be listed, and provides its street
address and mailing address; and (3) describes the alleged continuing
or recurring noncompliance, and the requisite enforcement action
(see 40 CFR Section 15.11(b)). The recommendation to list should
describe the history of violations in detail, including the specific
statutory, regulatory, or permit requirements violated. In addition,
regional offices may include as attachments to the listing recommen-
dation documents prepared for other purposes, such as complaints,
litigation reports, and other explanatory material which describes
the nature of the violations. (See Attachments for model listing
recommendations.)
The Listing Official must determine whether the recommendation
meets the requirements of Section 15.11(b). If the recommendation
is sufficient and the Assistant Administrator for OECM decides to
proceed under Section 15.11(c), the listing official will contact
the regional office to ensure that it still wishes to proceed. If
the decision is made to proceed, the listing official provides notice
of the proposed listing to the owner or operator of the affected
facility arid provides the owner or operator of the facility 30
days to request a listing proceeding. A listing proceeding 13
not a formal hearing; rather, it is an informal admirtistratLve
proceeding presided over by an Agency Case Examiner. If the facil-
ity’s owner or operator requests a listing proceeding, the ListLng
Official must schedule it and notify the recommending person and
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the owner or operator of the date, time, and location of
the proceeding; The Assistant PLdministrator designates a
Case Examiner to preside over the listing over the listing
proceeding .1/
b. Listing Proceeding
The Federal Rules of Civil Procedure and Evidence are not
used during listing proceedings. The Agency and the facility may
be represented by counsel and may present relevant oral. and written
evidence. With the approval of the Case Examiner, either party
may call, examine, and cross-examine witnesses. The Case Examiner
may refuse to permit cross—examination to the extent it would:
(1) prematurely reveal sensitive enforcement information which the
government may legally withhold, or (2) unduly extend the proceedings
in light of the usefulness of any additional information likely to
be produced (see Section 15.13(b)). A transcript of the proceeding
along with any other evidence admitted it’. the proceeding constitutes
the record. The Agency must prove each element of a discretionary
listing by a preponderance of the evidence (see Section 15.13(c)).
The Case Examiner must issue a written decision within 30
calendar days after the proceeding. The party adversely affected
may appeal the decision to the General Counsel. The appeal, which
is filed with the Listing Official, must contain a statement of:
(I) the case and the facts involved, (2) the issues, and (3)
why the decision of the Case Examiner is not correct based on
the record of the proceeding considered as a whole. The GeneraL
Counsel must issue a final decision, in writing, as soon as
practicable after reviewing the record. The Listing Official
then must send written notice of the decision to the recommending
person arid to the facility, and must publish the effective date
of the listing in. the Federal Register if the General Counsel
upholds the Case Examiner’s decision to list.
c. Removal from the List of Violating Facilities
Removal from the List of Violating Facilities can occur in
any of the following circumstances:
1. Upon reversal or other modification of the
criminal conviction decree, order, judgment, or
other civil ruling or finding which formed the
basis for the discretionary listing, where the
reversal or modification removes the basis for the
listing;
1/ If the owner or operator of the facility does not make a timely
Fequest for a listing proceeding. the Assistant Administrator will
determine whether to list the facility based upon the recommendation
to list arid any other available informat].Ofl.
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—4—
2. If the Assistant Administrator for OECM
determines that the facility has corrected the
condition(s) which gave rise to the listing;
3. Automatically if, after the facility has
remained on the discretionary list for one year
on the basis of Section 15.ll(a)(4) or Section
l5.ll(a)(5) and a basis for I.isting under Sections
15.l](a)(1), (2), or (3) does not exist; or
4. tf the Assistant Administrator for OECM has
approved a plan for compliance which ensures
correction of the condition(s) which gave rise to
the discretionary listing.
The original recommending person or the owner or operator of
the facility may request removal from the list. The Assistant
Administrator for OECM then must review the request and issue a
decision as soon as possible. The Listing OfficiaL then must
transmit the decision to the person requesting removal.
If the Assistant Administrator for OECM denies a request for
removal, the requesting person may file a written request for a
removal proceeding to be conducted by a Case Examiner designated
by the Assistant Administrator. The Federal Rules of Civil
Procedure and Evidence are not used during a removal proceeding.
The Case Examiner’s written decision must be based solely on the
record of the removal proceeding.
Within 30 calendar days after the date of the Case Examiner’s
decision, the owner or operator of the facility may file with the
Listing Official a request for review by the Administrator. The
Administrator will determine if the Case Examiner’s decision is
correct based upon the record of the removal proceeding considered
as a whoLe. The Administrator then must issue a final written
decision.
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Attachment A
MODEL LISTING RECOMMENDATION
BASED ON ADMINISTRATIVE ENFORCEMENT ACTION
DATE: 10/01/86
SUBJECT: Recommendation to List Violating Facility
FROM: Regional Administrator, Regi.ori XI
TO: Cynthia Psoras
Listing Official
Legal Enforcement Policy Division (LE—130A)
The purpose of this memorandum is to recommend that
the [ name of facility and type of operations conducted at
the facility] owned and operated by John Doe at [ street
address, city and state] be placed on the EPA List of
Violating Facilities because of violations of clean air
standards. Information concerning the recurring violations
and the history of action taken thus far by the Agency is
set forth below. Copies of pertinent supporting materials
are attached. [ Attach technical documents describing the
violation, the administrative order, and other documents
describing the enforcement action taken.]
This plant is subject to the New Source Performance
Standards (NSPS) for Asphalt Concrete Plants. 40 CFR Part
60, Subpart 1 (1986).
On July 5, 1985. the Region XI Director, Air Management
Division, notified [ owner and operator) that on the basis
of performance tests conducted December 19, 1984, the
facility was in violation of 40 CFR 60.92(a)(1), in that
it was discharging gases into the atmosphere, and those
gases contained 256.5 milligrams of particulate matter per dry
standard cubic meter (0.114 grain per dry stanJard cubic foot).
The allowable discharge of particulate matter into the
atmosphere is 90 milligrams per dry standard cubic meter
(0.04 grain per dry standard cubic foot).
On August 14, 1985, the Region XI Regional Administrator
issued an Administrative Order pursuant to Section 113(a)(3)
of the Clean Air Act. That order required, in part, that
[ name of facility] operate its [ specific portion of the
plant or processes causing the violations] in compliance
with the NSPS for Asphalt Concrete Plants, 40 CFR Part 60,
Subpart I, and to conduct performance tests for emissions
of particulate matter within sixty days following the
effective date of the Administrative Order.
Performance tests were completed on September 1, 1985,
and the particulate emissions were 373.5 milLigrams per dry
standard cubic meter (0.166 grain per dry standard cubic
foot). Thus, [ name of facility) is not in compliance, and has
violated the Administrative Order. Further, the violation
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2
of the NSPS has been a continuing violation in that the
partjculateemjssions have been greater than the permissible
limits since the December 19, 1985, test date.
The recommending person for this listing recommendation
is Regional Administrator, Region XI, EPA, Government
Office Building, City, 51st State; her telephone number is
(FTS) 123—4567.
This action is authorized under discretionary listing,
40 CFR 15.1l(a)(4) (1986). tt meets the regulations’ two
requirements that: there is “continuing or recurring
noncompliance with clean air standards ... at the facility
recommended for listing” and that the facility has violated
an administrative order issued under Section 113(a) of
the Clean Air Act.
If you have any questions, please contact Attorney, at
(FTS) 123—4568, or Engineer, at (FTS) 123—4569.
Attachments
(technical documents, Administrative 0rder
documents describing the previous enforcement actions taken]
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Appendix B
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Attachment B
MODEL LIST ING RECOMMENDATION
BASED ON JUDICIAL ENFORCEMENT ACTION
MEMORANDUM
SUBJECT: Recommendation for Listing
FROM: Regional Administrator, EPA Region 12
TO: Cynthia Psoras
Listing Official
Legal Enforcement Policy Division, LE—130A
This is a recommendation that the [ facility name and
address) be placed on the EPA List of Violating Facilities,
pursuant to Section 306 of the Clean Air Act, Executive
Order 11738, 40 CFR Part 15, and the October 1986 guidance
from the Assistant Administrator for Enforcement and Compliance
Monitoring. This action is authorized under 40 CFR 15.1l(a)(6)
(1986). This recommendation is based on violations alleged
in the civiL action currently being pursued against [ facility
name] in the United States District Court for the Fifty
Second State. [ Facility name) operates four coal—fired
boilers (boilers nos. 2—5) at the [ facility) without adequate
air pollution control equipment.
As indicated in the attached counterclaim, motion for partial
summary judgment, and affidavits, [ facility name] has been
in violation of the Federal New Source Performance Standards
(NSPS) for particulate emissions since startup of the boilers,
more than five years ago. The United States issued a notice
of violation to [ facility name] regarding mass emission
violations at the [ facility name] boilers nos. 2—5 on May 30,
1981. CFa.cLlity name] has not substantially modified the
particulate emission control system for these four boilers
since that time. Particulate stack testing conducted as
recently as January 1986 shows continuing violations of
the boilers. The complaint 4 attached to this memo, was
filed by defendant on June 15, 1985. The United States
then filed a counterclaim on August 1, 1985. The Government’s
Motion for Partial Summary Judgment as to liability, fiLed on or
about December l2 1985, was granted in part on April 8,
1986, wherein the court denied [ facility name’s] claim that
the four boilers were not covered by NSPS. The remainder
of the Motion, requesting judgment on the çountercl.aim for
enforcement, is pending before the court.
The [ facility name] plant is located in [ City and State]
which is a secondary nonattainment area for Total Suspended
Particulates. -
The attached affidavits contain summaries of mass violations
at the [ facility name’s] boilers nos. 2—5. All data summarized
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2
were obtained from stack tests perEormed on the [ facility name]
boilers by t e [ owner and operator corporation] and stack
tests performed by a consultant retained by the [ owner and
operator corporation].
Based on the information contained above and in the
attachments to this recomrrtendatjon, I request that the
Assistant Administrator for Enforcement and Cornpl.iance Monitoring
find that there is adequate evidence of continuing or recurring
violations of Clean Air Act standards at the [ facility name]
and place this facility on the EPA List of Violating Facilities
pursuant to the procedures set forth in 40 CFR Part 15.
For further information please contact Attorney on
(FTS) 987-654 or Technical Specialist (FTS) 987—655.
(Signed)
Regional Administrator
Attachments
[ technical documents, consultant’ a report. documents describing
the judicial enforcement action]
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Appendix C
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Attachment C
ATTACHMENT TO MODEL LISTING RECOMMENDATION
BASED ON JUDICIAL ENFORCEMENT ACTION
MEMORANDUM
SUBJECT: Attachment to Recommendation for Listing
FROM: Regional Administrator, EPA Region 12
TO: Cynthia Psoras
Listing Official
Legal Enforcement Policy Division (LE-103—A)
Description of Violations
The four coal—fired boilers at (facility name] are
subject to 40 CFR part 60, Subpart D, “Standards of
Performance for Fossil-Fuel—Fired Steam Generators for
which Construction is Commenced after August 17, 1971,” and
40 CFR part 60, Subpart A, ‘General Provisions,” which are
applicable to all categories of sources for which New Source
Performance Standards (NSPS) have been promulgated.
Subpart 0 includes emission limita for particulate
matter, opacity, sulfur dioxide and nitrogen oxides (40 CFR
560.42). It also requires installation, calibration,
maintenance and operation of continuous emission monitoring (“OEM”)
systems for opacity, sulfur dioxide and nitrogen oxides (40
CFR §45(a)). Each of the facility’s boilers rtos. 2, 3, 4, and
5 is sub)ect to these emission limitations arid CEM requirements.
Then (owner and operator] constructed the facility’s boilers
2—5 between 1978 and 1980, it equipped each of the boilers
with a double alkali venturi scrubber for combined control
of sulfur dioxide and particulate matter. These scrubbers suc—
ceesfully control sulfur dioxide emissions but they have
never achieved the Subpart D particulate emission limit, 40
CFR §60.42(a)(l). (Owner arid operator] also equipped the
boiLers with continuous monitoring systems for opacity, sulfur
dioxide and oxygen (it was exempt from the NOX CE!4 requirement,
pursuant to 40 C?R §60.45(b)(3)). The sulfur dioxide
monitoring system has never operated properly.
Subpart A includes requirements related to operation
and maintenance of CEM systems (40 CFR 560.13); notification
and recordkeeping (40 CFR §60.7) and performance testing
(40 CPR 560 .8k). Under 40 CFR 560.13, all CEM systems
installed under applicable subparts must:
a. be installed and operational prior to conducting
performance tests (emissions tests) — §60.13(b);
b. Undergo a performance evaluation (monitor
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2
certification test) during or within 30 days of
the performance tests — §60.13(c);
c. undergo regular calibration and maintenance -
§60.13(d) (1).
[ Facility name] violated all these provisions. It
never performed a monitor performance evaluation on, and
flever operated and maintained, its sulfur dioxide CENt
system.
Under 40 CFR §60.7, owners and operators of NSPS sources
must:
a. Notify EPA of the anticipated date of initial
start—up of an affected facility postmarked not
less than 30 days prior to such date — §60.7(a)(2);
b. Notify EPA of the actual date of initial
start-up postmarked within 1.5 days of such date
§60.7(a) (3);
c. Submit quarterly reports of “excess emissions”
(emissions exceeding applicable emission Limits)
as measured by continuous monitoring systems
— §60.7(c).
[ Facility name) failed to notify EPA of the anticipated
or actual start-up of boilers 4 and 5. [ Facility name) has
never submitted any excess emissions reports to EPA.
Under 40 CFR §60.8, owners/operators are requi.red to
conduct performance tests of affected facilities not Later
than 180 days after initial start-up. [ Facility name)
violated this provision with respect to boilers 4 and 5.
It is [ facility name’s] customary practice to operate
one or more of the boilers during the winter heating season.
The steam that is generated is used for space heating and
production. The boilers are not operated, or are operated
using only natural gas as fuel, in the warmer months. Each
heating season since the NOV was issued (in August 1980),
boilers 2 and 3 have been regularly operated. Each day a
boiLer is operated, particulate emissions from that boiler
exceed the limit, and violations of the CEM regulations
occur because the sulfur dioxide CEM remains inoperatLVe.
This winter, [ facility name] has informed us that they will not
operate the boilers using coal for fuel and will only use ndtural .
gas. However, they have made rio commitment to permanently
cease operating the boilers using coal. -
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3
The Motion for SummarY Judgment
On September 25, 1985, the District Court for the
Central District of the Fifty Second State ruled on EPA’S
motiion for partial summary judgment with respect to the
Agency’s counterclaim for enforcement. EPA’s motion dealt
only with the alleged violations of the subpart D particulate
emissions limit. It did not deal with the monitoring,
notification and reporting violations. EPA introduced
into evidence six stack tests conducted on boilers rtos. 2-5,
all of which showed the tested boiler to be exceeding the
limit. The court ruled that on the six days on which
those tests occurred, [ facility name) violated the subpart
D particulate standard. Enclosed is a copy of the transcript
of the September 26, 1985, hearing on the Motion for Summary
Judgment. Judge X ruled from the bench following oral
argument by the parties. See pages 21-25. The judge
stated that he would issue a written order, but he has not
done so yet. We will furnish you with a copy upon receipt.
An evidentiarY hearing is scheduled for March 1, 1985,
to establish days of violation other than the six stack
test days.
(signed)
Regional Administrator
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Appendix D
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Attachment D
MODEL LETTER TO A FACILITY VIOLATING THE
CLEAN WATER ACT REQUESTING A LIST OF ITS
FEDERAL CONTRACTS, GRANTS, AND LOANS
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. John Smith
President
XYZ Corporation
1.000 Corporate Lane
Fifty Second State 12345
Dear Mr. Smith:
The XYZ Corporation was issued National. Pollutant
Discharge Elimination System (NPDES) permit number FS0100524
by the Regional. Administrator of EPA, Region XI, pursuant to
Title 33, United States Code, Section 1342. This permit
authorizes the discharge of pollutants into the Blue River
in accordance with the effluent limitations, monitoring
requirements, and other provisions of the permit. On May 6,
1.986, EPA issued Administrative Order #86—1570 to the XYZ
Corporation pursuant to the authority granted under Title
33, United States Code, Section l319(a)(3) for exceeding the
effluent limitations for biochemical oxygen demand and total
suspended solids. As discussed in our letter to you of July
6, 1986 you are currently in violation of this Administrative
Order.
Under the provisions of Title 33, United States Code,
Section 1368(a), a facility owned, leased, or supervised by a
“person” (defined to include a corporation such as XYZ Corpora-
tion) who commits “continuing or recurring” violations of the
Clean Water Act may be placed on a “List of Violating Facilities”
and prohibited from receiving Federal contracts, grants and
Loans. The prohibition under Title 33, United States Code,
Section 1368(a) is implemented by the Erivironmenta]. Protection
.gency (EPA) under regulations promulgated at Title 40 of
the Code of Federal Regulations Part 15, entitled “Adminis-
tration of The Clean Air Act and Federal. Water PoLlution
Control Act with Respect to Federal Contracts, Grants, or
Loans.” These regulations state that a facility may be
placed on the “List of Violating Facilities” for a violation
of an administrative order under Title 33, United States
Code, Section 1319(a).
Under Title 33, United States Code, Section 1318, E?A
has authority to require the owner or operator of any point
source to make such reports and to provide such other infor-
mation as are deemed reasonably necessary to carry out the
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objectives of the Clean Water Act, Title 33, United States
Code, Section 1251 et
Accordingly, for the purposes of implementing Title 33,
United States Code, Section 1368(a), EPA hereby invokes its
authority under Title 33, United States Code, Section 1318,
and requires XYZ Corporation, as the owner and operator of a
point source, identified in NPDES permit number FS0100524,
to provide the information specified below no later than 15
calendar days from receipt of this letter. The submittal
should be addressed to:
Regional Attorney
Office of Regional Counsel
U.S. Environmental Protection Agency
Region XI
Information to be Submitted to EPA
1. Identify, by contract number, contracting agency and con-
tract date, all Federal contracts held by the facility for
the procurement of personal property or nonpersonal services,
for which XYZ Corporation is either the prime contractor or
subcontractor.
2. Identify, by grant number, granting agency, and grant date,
all Federal grants received by the facility, including grants-in-
aid, for which XYZ Corporation is either the grantee (prime
recipient of a grant) or a subgrantee (the holder of an
agreement or an arrangement under which any portion of the
activity or program is being assisted under the grant).
3. Identify, by loan number, lending agency, and Loan date,
all Federal loans for which XYZ Corporation is a borrower
or subborrower.
4. Identify, by bid number, agency and date, all bids submit-
ted by XYZ Corporation for future Federal contracts or
subcon.tracts.
5. Identify, by grant application number, agency and date, all
grant applications submitted by XYZ Corporation for any
future Federal grant or subgrant.
6. Identify, by loan application number, agency and date, all
loan applications submitted by XYZ Corporation for future
Federal loans or subi.oans.
7. Identify, by percentage estimate, the extent to which
XYZ Corporation’s business is connected, in any degree, to
Federal contracts, grants and loans.
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—3—
8. tdentify the effect, if any, of the prohibition of Title
33, United $ta es Code, Section 1368(a), upon the business of
XYZ Corporation.
This inquiry does not constitute an official notification
that XYZ Corportion is under consideration for placement on
the ‘List of Violating Facilities.” If deemed appropriate,
such a notice will be initiated by the Listing Official,
Office of Enforcement and Compliance Monitoring, EPA.
Under Title 33, United States Code. Section 1318(b), XYZ
Corporation may assert a business confidentiality claim
iith respect to part or all, of the information submitted to
EPA in the manner described at 40 C.F.R. § 2.203(b). Information
covered by such a claim will, be disclosed by EPA only to the
extent, and by means of the procedures set forth in 40 C.F.R.
Part 2, Subpart B. If no such claim accompanies the information
when it is submitted to EPA, it may be made available to the
public by EPA without further notice to XYZ Corporation.
Care should be taken in ensuring that the response to this
letter is complete and accurate because Title 33, United
States Code, Section 1.319(c)(2) provides criminal penalties
for knowingly or willfully submitting false information to
EPA in any report required by the Clean Water Act. In addition,
Title 18, United States Code, Section 1001 provides criminal
penalties for knowingly or willfully submitting false
information to a federal official.
This information request is not subject to the approval
requirements of the Paperwork Reduction Act of 1980, Title 44
United States Code, Sections 3501 et
Should you have any questions, please contact me at (123)
456—7890.
Sincerely yours,
Regional Attorney
Region XI
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Appendix E
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Attachment E
MODEL LETTER TO A FACILITY VIOLATING THE
CLEM AIR ACT REQUESTING A LIST OF £TS
FEDERAL CONTRACTS, GRA 4TS, AND LOANS
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. John Smith
President
ABC Corporation
1000 Corporate Lane
Fifty Third State 12345
Dear (Ir. Smith:
On May 5, 1986, in the Southern District of the Fifty
Third State, the Department of Justice instituted a. civil
suit against the ABC Corporation for continuing and recurring
violations of TitLe 42, United States Code, Section 7413(b).
Title 40 of the Code of Federal Regulations, Part 15,
entitled ‘Administration of The Clean Air Act and Federal
Water Pollution Control Act with Respect to Federal Contracts,
Grants, or Loans,” promulgated pursuant to Title 42, United
States Code, Section 7606(a) and Executive Order 11738 (38 FR
25161, September 12, 1973) authorize EPA to establish a ‘List
of Violating Facilities.” Facilities on this List are prohibited
from receiving Federal contracts, grants, and loans. A facility
who commits ‘continuing or recurring” violations of the
Clean Air Act may be placed on the List. These regulations
state that. a facility may be placed on the List after EPA,
through the Department of Justice, has filed a civil enforce-
ment action in federal court under Title 42, United States Code,
Section 7413(b).
Under TitLe 42, United States Code, Section 7414(a), EPA
has authority to require the owner or operator of any emission
source to make such reports and to provide such other infor-
mation as are deemed reasonably necessary to carry out the
objectives of the Clean Air Act, Title 42, United States
Code, Section 7401 et
Accordingly, for the purposes of implem nting Title 42,
United States Code, Section 7606(a), EPA hereby invokes its
authority under Title 42, United States Code, Section 7414,
and requires ABC Corporation as the owner and operator of a
emission source, to provide the infori ation specified below
no later than 15 calendar days from receipt of this letter.
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—2—
The submittal should be addressed to:
Regional Attorney
Office of Regional Counsel
u.s. Environmental Protection Agency
Region XI
Information to be Submitted to EPA
1.. Identify, by contract number, contracting agency and con-
tract date 1 all FederaL contracts held by this facility for
the procurement of personal property or nonpersonal servi.ces,
for which ABC Corporation is either the prime contractor or
subcontractor.
2. Identify, by grant number, granting agency, and grant date,
all Federal grants received by this facility, including
grants-in-aid, for which ABC Corporation is either the grantee
(prime recipient of a grant) or a subgrantee (the holder of
an agreement or an arrangement under which any portion of
the activity or program is being assisted under the grant).
3. Identify, by loan number, lending agency, and loan date,
all. Federal loans for which ABC Corporation is a borrower
or subborrower.
4. Identify, by bid number, agency and date, all bids subr it-
ted by ABC CorporatLorl for future Federal contracts or
subcontracts.
5. Identify, by grant application number, agency and date, all
grant applications submitted oy ABC Corporation for any
future Federal grant or subgrant.
6. Identify, by loan application number, agency and date, all
loan applications submitted by ABC Corporation for future
Federal. loans or subloans.
7. Identify, by percentage estimate, the extent to which
ABC Corporation’s business is connected, in any degree, to
Federal contracts, grants and Loans.
8. Identify the effect, if any, of the prohibition of Title
42, United States Code, Section 7606(a), upon the business of
ABC Corporation.
This inquiry does not constitute an official notification
that ABC Corportion is under consideration for placement on the
“List of VioLating FaciLities.” If deemed appropriate, such
a notice will, be initiated by the Listing Official, Office
of Enforcement and Compliance Monitoring, EPA.
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—3—
Under Title 42, United States Code, Section 7414(c), ABC
Corporation may assert a business confidentiality claim with
respect to part or all of the information submitted to EPA in the
manner described at 40 C.F.R. § 2.203(b). Information covered
by such a claim will be disclosed by EPA only to the extent, and
by means of the procedures set forth in 40 C.F.R. Part 2,
Subpart B. If no such c].aim accompanies the information when
it is submitted to EPA, it may be made available to the public
by EPA without further notice to ABC Corporation.
Care should be taken in ensuring that the response to this
letter is complete and accurate because Title 42, United
States Code, Section 7413(c)(2) provides criminal penalties
for knowingly submitting false information to EPA in any
report required by the Clean Air Act. En addition, Title
18, United States Code, Section 1001 provides criminal penalties
for knowingly or willfully submitting false information to
a federal official.
This information request is not subject to the approval
requirements of the Paperwork Reduction Act of 1980, Title 44
United States Code, Sections 3501 et
Should you have any questions, please contact me at (123)
456-7890.
Sincerely yours,
Regional Attorney
Region X I
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