Clean Air Act
Compliance
Enforcement
Policy
Compendium
1988 ed.
Volume 5

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J

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J. Section 306: Federal Procurement
1. Implementation of Mandatory Contractor 08/08/84
Listing
2. Guidance on Implementing the Discretionary 11/26/86
Contractor Listing Program
3. Listing Asbestos Demolition and Renovation 03/11/88
Companies Pursuant to Section 306 of the
Clean Air Act

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1

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Implementation of Mandatory Contractor Listing
(08/08/84)
File at Part J, Document #1

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D C. 20460
.‘ pr c,•’’
MEMORANDUM
SUBJECT: Implementation of Mandatory Contr ctor Listing
Courtney M.
Assistant Administ tor f r Enforcement
and Compliance Mbnitoring
Resources
Regional Counsels I—X
Introduction and Purpose
Pursuant to statutory requirements, the proposed revisions
to 40 CFR Part 15 require that the List of violating _ Facilities
(“the List”) automatically include any facility which gives rise
toa criminal conviction of a person under Section 113(c)(l) r
the Clean Air Act or Section 309T r the Clean .Wate ct .
Any facility on the List is ineligible to receive any non—exempt
Federal government contract, grant, or loan. Removal of a
facility from the List occurs only if I certify that the condition
giving rise to the conviction has been corrected or if a court
reverses or vacates the conviction. This memorandum establishes
the procedure to implement the mandatory portion of the contractor
listing program. 1
1/ Guidance on implementation of the discretionary listing
authority issued on July 18, 1984.
OLEC
oB 1984 13g4 4L! /3 P/i
or;r c i;
(r .3IIrr. r it ..N(i
CO P IAp rb MON,lQRI .(
FROM:
TO:
Assistant
Assistant
Associate
Associate
Associate
Assistant
Administrator for Air and Radiation
Administrator for Water
Enforcement Counsel for Air Enforcement
Enforcement Counsel for Water Enforcement
Enforcement Counsel for Criminal Enforcement
Attorney General for Land and Natural

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procedure for Mandatory Listing
I. A federal district court must enter a guilty verdict or
guilty plea of a person under Section 113(c)(1) of the
Clean Air Act or Section 309(c) of the Clean Water Act.
The convicted person must own, operate, lease, supervise
or have a financial interest in the facility which gave
rise to the conviction. Note that criminal convictions
under Section ll3(c)(2) of the Clean Air Act and criminal
convictions entered by a State or local court do not qualify
a facility for mandatory listing.
II. Upon notification of an entry of a guilty verdict or guilty
plea by the clerk of the..district court, the Department of
Justice must immediately notify the Associate Enforcement
Counsel for Criminal Enforcement (L.E— ]34E). This notification
must occur even if the defendant still awaits sentencing,
has moved for a new trial or a reduced sentence, or has
appealed the conviction.
III. The Associate Enforcement Counsel for Criminal Enforcement
must independently verify that the court has entered the
guilty verdict or guilty plea.
IV. Upon such verification, the Associate Enforcement Counsel
for Criminal Enforcement shall notify EPA’S Listing Official
(LE—]30A) in writing, of the name and location of the facility
and of the condition giving rise to the guilty verdict or
guilty plea.
V. The Listing Official shall then update the List by publishing
a notice in the Federal Register , and shall notify the
Associate Enforcement CoUnsel for Air or Water; the appropriate
Regional Counsel; the Compliance Staff, Grants Administration
Division, Office of Administration and Resource Management;
the General Services Administration, and the facility. A
facility remains on the mandatory List indefinitely until
it establishes a basis for removal.
Procedure for Removal from the Mandatory List
I. Any person who owns, operates, leases, supervises, or has
a financial interest in the listed facility may file with
the Listing Official a request to remove that facility from
the List. The request must establish one of the following
grounds for removal:
A. The condition at the facility that gave rise to the
conviction has been corrected.
B. The conviction (not just the sentence) was reversed or
vacated.

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II. The Listing Official must transmit the request for removal
to the Assistant Administrator for OECM.
III. The Assistant Administrator for OECM, or her or his designee,
shall review the request for removal and shall consult the
appropriate Regional Counsel to determine whether the
condition at the facility giving rise to the conviction
has been corrected, or if the conviction has been reversi d
or vacated.
IV. The Assistant Administrator for OECM shall determine as
expeditiously as practicable whether to remove the facility
from the list.
V. If the Assistant Administrator for OECM decides to remove
the facility from the list, a written notification of
such determination shall be sent to the facility and to
the Listing Official who shall promptly publish a notice
of removal in the Federal Register .
VI. If the Assistant Administrator for OECM decides not to
remove the facility from the List, the Listing Official
shall send written notice of the decision to the person
requesting removal. The notice shall inform the person
owning, operating, leasing, supervising or having a
financial interest in the facility of the opportunity
to request a removal hearing before a Case Examiner
(See 40 CFR Part 15 for the selection and duties of the
Case Examiner).
VII. If the Case Examiner, or the Administrator upon appeal of
the Case Examiner’s decision, decides to remove the facility
from the List, the Listing Official shall be notified.
The Listing Official shall then promptly remove the facility
from the List. If the Case Examiner or the Administrator
upon appeal, decides not to remove the facility from the
list, then the Listing Official shall send written notice
of the decision to the person requesting removal.
It is important to note that any decision regarding the
listing or removal of a facility from the List does not affect
any other action by any government agency against such a facility,
including debarment from government contracting.
I believe these procedures will enable us to conduct the
mandatory listing program in an efficient manner. If you have
any questions, please contact EPA’S Listing Official, Allen J.
Danzig, at (FTS) 475—8777.
cc: Stephen Ramsey, DOJ
Belle Davis, GAD/OARM
Judson W. Starr,/DO3

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Cardinar

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Guidance on Implementing the Discretionary Contractor
Listing Program
(11/26/86)
File at Part J, Document #2

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, •
L”IITED SlATES ENVIRONMENTAL PROTECTION AGENCY
VtASHINGTO!%, D.C. 20460
‘. c ’
OFPICFOF E%E()R(I( , J
N 2 6 A%DCOMPLI ..CL
MO .ITORI
MEMORANDUM
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 Ac ministrators, 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—3], 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 Bhould 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 Listing Proceedings , page 4.) The circumst-ances
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 CA.A 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 envirorunenta]. statutes, such as the Resource Conservation
and Recovery Act (RCRA) or the Toxic Substances Control Act (ISCA)
(where EPA does not have contractor listing authority), a listing
recommendation also should be considered.
B. Continuing or Recurring Violations 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 CAA 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 Regional Office
determines that the facility is not making sufficient efforts to
come 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 CPLA or CWA violations occur at two or more 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 wiL’. 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 see 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 Charlene Swibas, Chief, 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 violations). 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 Circumstances 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, RegionQl
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 with
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 and 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 not necessary to prove all violations of CAA or CWA
standards alleged in th underlying enforcement action. Nonetheless,

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the regional attorney must carefully review the sufficiency of the
evidence and evaluate 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 in 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 CAA or CWA standards. Likewise,
Agency enforcement personnel must be careful in using listing
terminology during discussions with defendants. During settlement
negotiations, for example, it js certainly 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 listing 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 not consti-
tute final Agency decision to list.
VI. Press Releases on Contractor Listing Actions
EPk will use press releases and other publicity to inform
existing and potential violators of the CAA and the CWA that EPA
will use its contractor listing authority in appropriate situations.
The November 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 arid 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 (DOJ) before a recommendation to list is made to the Assis-
tant Administrator for OECM. If the recommending party is an EP
regional office official, he or she shall coordinate with the
appropriate DOJ attorney before a recommendation is submittel to
the Listing Official. He or she shall also provide the DOJ att)r—
ney’s corr ents to the Listing Official as part of the recommen1 tiOfl

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package. If the recommending party is not an EPA official, the
Listing Official shall coordinate with the EPA Office of Regional
Counsel and the appr3priate DOJ attorney before a recommendation
to list is presented to the Assistant Administrator for OECM.
VIII. Applicability of Contractor Listing to Municipalities
Municipalities are subject to listing under appropriate cir-
cumstances. State and local governments and other municipal bodies
are specifically identified by 40 CFR l5.4 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-
ment 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 l5.5. 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 facilities
early in the enforcement process of the possibility of being listed.
Many facilities 1o not know about the listing sanction; such knowl—
edge.may provide additional impetus for a facility to take steps
to cor e into compliance. For example, some EPA regions notify
facilities whose violations make them potential candidates for
listing of this possibility in the cover letter which accompanies
an administrative order requiring them to take action to correct
their noncompliance.
X. Obtaining Information Concerning Government Contracts
ii id 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
not 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. Requiring
this information from the facility is not a prerequisite for
listing a facility.
Requiring this information from a facility may be accom-
plished by telephone or through a letter similar to the models
providel 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 author .ty of the Clean

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Water Act for violating its National Pollutant Discharge Elimination
System (NPDES) permit. Attachment E is a letter to a facility
which EPA arid 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,
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. Headquarters 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
t o weeks after receiving the recommendation. Questions concerning
contractor listing may be d-irected to the Agency Listing Offici i1,
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 VI)
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
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 l13(c)(l) 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
an 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)(1) 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 ior mandatory listing in more detail.
B. Discretionary Listing
1. Basi .s for Discretionary Listing
The following enforcement actions may serve as a basis for
discretionary listing if t:’ ere 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
owns, 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 Noeice of
Noncompliance under Section 120 of the CAA.
e. The facility has violated an administrative order
under:

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• CAA Section 113(a)
0 CAA Section 113(d)
o CAA Section 167
0 CAA Section 303
0 CWA Section 309(a)
f. The facility is the subject of a district court
civil enforcement action under:
o CAA Section 113(b)
o CAA Section 167
0 CAA Section 204
0 CAA Section 205
0 CAA Section 211
O CWA Section 309(b)
2. The Discretionary Listing Process
a. Listing Recommendation and Notice 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 and Radiation,
the Assistant Administrator for Water, the Associate Enforcement
Counsel for Air, the Associate Enforcement Counsel for Water, and
the Gover.ior of any State. The recommendation to list: (1) 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 noncorn )1iance, 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 recominen—
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 ani provides the owner or operator of the facility 30
days to request a listing proceeding. A listing proceeding is
not a formal hearing; rather, it is an informal administrative
procee . ing presided over by an Agency Case Examiner. If the facil-
ity’s owner or operator requests a listing proceeding, the Listing
Official must schedule it and notify the recommending person ani

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the owner or operator of the date, time, and location of
the proceed .rig. The Assistant Administrator designates a
Case Examiner to preside over the listing over the listing
proceed ing. ’
b. . isting Proceeding
Th Federa’l Rules of Civil Procedure and Evidence are not
used during listing proceedings. The Agency and the facility. may
be re resentèd by counsel and may present relevant oral and writte
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 lig t of the usefulness of any additional information likely to
be produced (see Section 15.13(b)). A transcript of the proceeding
along wit - any other evidence admitted in the proceeding constitut .
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:
(1) the case and the facts involved, (2) the issues, and (3)
why the decision of the Case Examiner is not correct based on
th. record of the proceeding considered as a whole. The General
C’..,u’isel must issue a final decision, in writing, as soon as
practicable after reviewing the record. The Listing Official
then must send writteL notice of the decision to the recommending
person and 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
request f. r d listing proceeding, the Assistant Administrator will.
deter’nine whether to list the facility based upon the recommenz atioi
to list and any other available information.

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2. If the Assistant Administrator for OEC 1
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
15.ll(a)(5) and a basis for listing under Sections
15.ll(a)(l), (2), or (3) does not exist; or
4. If 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 recom ’nending 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
deci.sioi 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: Recomntendation to List Violating Facility
FROM: Regional Administrator, Region 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 th
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 I (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)(l), 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 stanlard 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 he
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). Th .is, riane of facility] is not in compliance, and has
violatei the Ad.ninistrative Order. Further, the violation

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2
of the NSPS has been a continuing violation in that the
particulate emissions 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 CFP 15.ll(a)(4) (1986). It 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 Order,
documents describing the previous enforcement actions taken]

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Attachment B
MODEL LISTING RECOMMENDATION
B/ SED ON JUDICIAL ENFORCEMENT ACTION
ME MO RAN DUM
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 ?1ace 1 on the EPA List of Violating Facilities,
pursuant to Section 306 of the Clean Air Act, Executive
Drder 1l73 3, 40 CF’R Part 15, and the October 1986 guidance
from the Assistant Administrator for Enforcement and Compliance
Monitoring. This action is authorized under 40 CFR 15.11(a)(6)
(19a6). This recommendation is based on violations alleged
in the civil actinr ctirr rit1y being pursued against [ facility
name] in the 1 Jnite States District Court for the Fifty
Second State. [ Facility name] operates four coal—fired
boilers (boLlers nos. 2-5) at the [ facility] without adequate
air p3liUtIOfl control. equipment.
As indicated in the attached counterclaim, motion for partial
summary judgment, anl affidavits, [ facility name] has been
in vioLation of the Federal New Source Performance Standards
(NSPS) for particulate emissions since startup of the boilers,
more thaii fiie 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. [ Facility 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, 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 12, 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 counterclaim for
enforcement, is pending before the court.
m [ facility name] plant is located in [ City and State]
which is t secondary nonattainment area for Total Suspended
?articulates.
The attach . affidavits contain summaries of mass violations
at th Efacility name’s] boilers nos. 2—5. All data summarized

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2
were obtained from stack tests performed on the [ facility name]
boilers by the [ 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 recomii endation, I request that the
Assistant Administrator for Enforcement and Compliance 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
[ tec’mical documents, consultant’s report, documents describing
the judicial iiforcement action]

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Attachment c
ATr ENT TO MODEL LISTING RECOMMENDATION
BASED ON JUDICIAL ENFORCEMENT ACTION
ME A DL”
SUBJECT: Attach—.ent 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 fo.ir coal-fired boilers at [ facility name] are
subject to 40 CFR part. 63, Subpart D, “Standards of
Perf Drrance 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
app1icab to all. categD ies of sources for which New Source
Perforia: ce 5n- ds (NSPS) have been promulgated.
S.. bpart r) i-ic dcs e’nission limits for particulate
r att.er, orDaci.:v, sulfur dioxide and nitrogen oxides (43 CFR
§60.42). It a.so re .iires installation, calibration,
r ainte a:ice o ratio.i of continuous emission monitoring (“:E
syste s for o-acity, sulfur dioxide and nitrogen oxides (40
F §45( )). ach of t e facility’s boilers nos. 2, 3, 4, and
5 is s jec. tc thes. emission limitations and CEM requirenents.
When L A .er o2er tor] constructed the facility’s boilers
2-5 bet .. ee:- 1970 an E 1980, it equipped each of the boilers
.ioub aFcal.i. venturi scrubber for combined control
of suif. r di iie arid particulate matter. These scrubbers su:-
cessful.ly cor.trol sulfur dioxide emissions but they have
never achieve the Subpart D particulate emission limit, 40
CFR §6O.42( )(l). [ Owner arid operator) also equipped the
boilers with coitinuous monitoring systems for opacity, sulfur
dioxide and oxyge: (it was exempt from the NOX CEM requirement,
pursuant to 40 CFR §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 §60.13); notification
an 1 recordkeeping (40 CFR §60.7) and performance testing
(40 CFR §60.8k). Under 40 CFR §60.13, all CEM systems
installed under applicable subparts must:
a. he installed and operational prior to conducting
perfDrr ar1ce tests (erussions tests) — §60.13(b);
b. Undergc a perfor iance 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
has ne ’er operated and maintained, its sulfur dioxide CEM
system.
Under 40 CFR §60.7, owners and operators of NSPS sources
mu St:
a. Notify EPA of the anticipated date of initial
start—up of an affected facility postmarked not
less ti a1 30 days prior to such date — §60.7(a)(2):
b. Notify EPA of the actual date of initial
start-. p postmarked within 15 days of such date
§6 .7(a) (3);
c. Subr t quarterly reports of “excess emissions’
(e-tissior s exceeding applicable emission limits)
as measured by continuous monitoring systems
— §6 .7(c).
a::iity name] failed to notify EPA of the anticipates
or actual sta-t-up of boilers 4 and 5. (Facility name] has
neve: sub— .tte arty excess emissions reports to EPA.
n er 4C CFR §60.8, owners/operators are required to
conch t e formance tests of affected facilities not later
thart 16:) dais after initial start—up. (Facility name]
vio1ate 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 C D I remains inoperative.
- This winter, [ facility name] has informed us that they will not
operate the boilers using coal for fuel and will only use naturaL
gas. Ho ever, they have made no commitment to permanently
cease operating the boilers using coal.

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3
The Motior for Sums ary 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 arid reporting violations. EPA introduced
into evidence six stack tests conducted on boilers nos. 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 Septenber 26, 1985, hearing on the Motion for Summary
Judgment. Judge X ruled from the bench following oral
argumer 1 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 eviden iary 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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Attachj ent D
MODEL LETTER TO A FACILITY VIOLATING THE
CLEA WATER ACT REQUESTING A LIST OF ITS
FEDERAL CONTRACTS, GRANTS, AND LOANS
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. John Smith
President
XYZ Corporation
1000 Corporate Lane
Fifty Second State 12345
Dear Mr. Sr ith:
The XYZ C3rporation was issued National Pollutant
Discharge Elinination System (NPDES) permit number FS0100524
by the Regional Adninistrator of EPA. Region XI, pursuant to
Title 33, Unite. States Code, Section 1342. This permit
auth.rizes the discharge of pollutants into the Blue River
in accordance with the effluent limitations, monitoring
re uirements, and other provisions of the permit. On May 6,
1986, E? issued Administrative Order 086—1570 to the XYZ
Corpora iori pursuant to the authority granted under Title
33, Unite States Code, Section 1319(a)(3) for exceeding the
effluer.t imitations for biochemical oxygen demand and total
suspended so1i s. As discussed in our letter to you of July
6, 1986 you are currently in violation of this Administrative
0rde .
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 comrnits “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 Environmental Protection
Agency (EPA) under regulations promulgated at Title 40 of
the Code of Federal Regulations Part 15, entitled Mmi js-
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 T t1e 33, United States Code, Section 1318, EPA
has authority to require the owner or operator of any point
source to make s .ic’i reports and to provide such other infor-
mation as are dee e reasonably necessary to carry out the

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—2—
objectives of the Clean Water Act, Title 33, United States
Code, Section 1251 et
Accordingly 1 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 PSOlOO524,
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
Informatio -. to be Submitted to EP
1. Identify, by contract number, contracting agency and con-
tract date, all Federal contracts held by the facility for
the pro:ure rent 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
a reei ent or an arrangement under which any portion of the
activity Cr prograr. 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 subborro er.
4. Identify, by bid number, agency and date, all bids submit-
ted b XYZ Corporation for future Federal contracts or
subcontracts.
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 subloans.
7. Identify, by percentage estimate, the extent to which
XYZ Corporatl.orts business is connected, in any degree, to
Federal contracts, grants and loans.

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—3—
8. Identify the effect, if any, of the prohibition of Title
33, Ur.ited States Code, Section 1368(a), upon the business of
XYZ Corporatio! .
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
with respect to part or all of the information submitted to
EPA in the manner described at 40 C.F.R. 2.203(b). Informatio-
covered by such a claim will be disclosed by EPA only to the
extent, arid 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 13l9(c)(2) provides criminal penalties
for kno ing1y or willfully submitting false information to
EPA in any report required by the Clean Water Act. In addition,
Title 18, Uru.ted States Code, Section 1001 provides criminal
penalties for cnowingly or willfully submitting false.
inform tioi to a federal official.
This i iformation request is not subject to the approval
require ients of the Paperwork Reduction Act of 1980, Title 44
Unite 4 . St. tes Code, Sections 3501 et
Sho 1d you have a y questions, please contact me at (123)
456-789Z .
Sincerely yours,
Regional Attorney
Region XI

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Attachment E
M DEL LETTER TO A FACILITY VIOLATING THE
CLEAN AIR ACT REQUESTfl* G A LIST OF ITS
FEDERAL CONTRACTS, GRANTS, MD LOANS
CERTIFIED MAIL.
RETURN RECEIPT REQUESTED
Mr. cohn Smith
President
ABC Corporation
1000 Corporate Lane
Fifty Third State 12345
Dear Mr. S’ ith:
On May 5, 1986, in the Southern District of the Fifty
Third Star , 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,
Gra its, or Loans,” promulgated pursuant to Title 42, United
States Code, Section 7606(a) and Executive Order 11738 (38 FR
25161, Sep-..ern er 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 co—..—i- ..s ‘c3ntir.Jir1 or recurring” violations of the
Clean Air Act may be placed on the List. These regulations
state that a facility nay be placed on the List after EPA.
through the Department of Justice, has filed a civil enforce-
nent. 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 implementing 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 information specified below
no later than 15 calendar days from receipt of this letter.

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—2—
subiuttal 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 this facility for
the procurement of personal property or nonpersonal services,
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
(pri:ne recipient of a grant) or a subgrantee (the holder of
an agreement or an arrangement under which any portion of
the activity or progran is being assisted under the grant).
3. Ide- tify, by loafl nu ber , lending agency, and loan date,
all Federal loa is for whic?’ ABC Corporation is a borrower
or subborro er.
4. Identify, by bid nu her, agency and date, all bids submit-
ted oy A5C Corporation for future Federal contracts or
subcor.tracts.
5. Ider. ifj, by grant application nunther, agency and date, a1.i
grant ap 1icat.cis subr itted by 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 Enforce:ie. t 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 EPAin the
manner described at 40 C.F.R. 4 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 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 74l3(c)(2) provides criminal penalties
for knowingly submitting false information to EPA in any
report required by the Clean Air 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 inforr iatio request is not subject to the approval
requirerients of the Paperwork Reduction Act of 1980, Title 44
United States Code, Sections 3501 et
Sho d you have any questions. please contact me at (123)
456-7890.
Sincerely yours,
Regional Attorney
Region XI

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Cam’Jna!®

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Listing Asbestos Demolition and Renovation Companies
Pursuant to Section 306 of the Clean Air Act
(03/11/88)
File at Part J, Document #3

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á UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I 1 WASHINGTON. D.C. Z0460
‘AR I I 1928
MEMORANDUM
SUBJECT: Listing Asbestos Demolition and Renovation Companies
Pursuant to Section 306 of the Clean Air Act
FROM: Michael S. Alushin, ,/. 4 .4 ,
Associate Enforcement ounse
Air Enforcement Divisi
£ /
John S. Seitz, Directo
Stationary Source Compi ance Division
Office of Air Qu 1ann tandfrds
Terre 11 E. ‘H13n.t- fr
Office of Enforcement Policy
Office of Compliance Analysis and Program Operations
TO: Addressees
we urge you to consider listing, under Section 306 of the
Clean Air Act, contractors who are violators of the asbestos
demolition and renovation (D&R) standards, 40 C.F.R. Part 61,
Subpart M. Since significant amounts of federal money are
involved in asbestos removal, we think that you will find
that contractor listing can be an effective sanction against
recalcitrant violators. It will deprive them of the privilege
of contracting or subcontracting with federal agencies or with
any other entity which has received federal grants or loans
for asbestos removal.
Contractors convicted of criminal violations under S 113
(c)(1) will be automatically listed under the Mandatory Listing
provisions, 40 C.F.R. S 15.10. Under 40 C.F.R. S 15.11, EPA
has the discretion to list contractors who
o have violated an administrative order under S 113(a) or
(d), S 167 or S 303,
• have been issued a Notice of Noncompliance under S 120,
O have been issued any form of civil ruling by a federal,
state or local court, as a result of noncompliance with
clean air standards,

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2.
o have been convicted by a state or local court of any
criminal violations of the CAA or by a federal court
for criminal violations under S 113(c)(2) (for making
false statements, records or reports); or
• have had a civil judicial enforcement action filed
against them in federal district court for CAA
violations.
Asbestos D&R contractors differ from the traditional
“stationary sources” of air pollution, because each job is
done at a different construction site, generally owned by
someone other than the asbestos D&R company. Therefore,
the enclosed legal memorandum was prepared to clarify the
application of the contractor listing regulations to asbestos
D&R contractors.
This memorandum addresses the question of whether the bus-
iness address of an asbestos D&R company may be listed as the
“violating facility” when placing an asbestos D&R company on
the List of Violating Facilities under Section 306 of the Clean
Air Act. It concludes that the business address of an asbestos
D&R company, rather than the address of the demolition site,
should be used to identify the “violating facility” when placing
an asbestos D&R company on the List of Violating Facilities.
We need your help to make this program a success. To get
off to a good start, establishing some clear precedents, we
need your nomination of candidates for listing. We hope to start
with contractors with both egregious substantive violations and
notice violations. If a nationwide or very large contractor
has distinct regional or other sub—divisions, you should consider
whether naming the smaller unit as the “listed facility” is
more appropriate (cf. page 6 of the enclosed legal memorandum
for a discussion of this aspect). Please contact Rich Biondi
in SSCD (382—2826) or Charlie Garlow (475—7088) or Justina Fugh
(382—2864) in OECM—Air to consult about potential candidates
for listing before sending a formal recommendation to list to
Headquarters.
Addressees:
Regional Counsels
Regions I—X
Air Management Division Directors
Regions I, Ill, & IX
Air and Waste Management Division Director
Region II

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3.
Air, Pesticides and Toxics Management Division Directors
Regions IV and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
Air and Radiation Division Director
Region V
cc: Thomas L. Adams, Jr.
Assistant Administrator for Enforcement
and Compliance Monitoring
J. Craig Potter
Assistant Administrator for Air and Radiation
Jonathan Z. Cannon
Deputy Assistant Administrator for Civil Enforcement
Paul R. Thompson, Jr.
Deputy Assistant Administrator for Criminal Enforcement
Gerald A. Bryan, Director
OfUce of Compliance Analysis and Program Operations
Francis S. Blake
General Counsel
Deputy Regional Administrators
Regions I—X
Deputy Regional Counsels
Regions I—X
Alan W. Eckert
Associate General Counsel for Air and Radiation
Robert A. O’Meara, Chief
Control Technology and Compliance Section, Region I
Ken Eng, Chief
Air Compliance Branch, Region II
Bernard Turlinski, Chief
Air Enforcement Branch, Region III
James T. Wilburn, Chief
Air Compliance Branch, Region IV
Larry Kertcher, Chief
Air Compliance Branch, Region V

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4.
John Hepola, Chief
Air Enforcement Branch, Region VI
Charles Whitmore, Chief
Air Compliance Section
Doug Skie, Chief
Compliance Section, Region VIII
Charles Seely, Chief
Compliance Section, Region IX
Michael Schultz, Chieg
Compliance Section, Region X
Pam Hill, Air Team Leader
Office of Regional Counsel, Region I
Faith Halter, Air Branch Chief
Office of Regional Counsel, Region II
Marcia B. Mulkey, Air & Toxics Branch Chief
Office of Regional Counsel, Region III
Bill Anderson, Air, Water and General Law Branch Chief
Office of Regional Counsel, Region IV -
Michael G. Smith, Air, Water, Toxics and
General Law Branch Chief
Office of Regional Counsel, Region V
Barbara Greenfield, Air Branch Chief
Office of Regional Counsel, Region VI
Robert Patrick, Air, Toxics and Pesticides Team Leader
Office of Regional Counsel, Region VII
ChrLs Phillips, Air Branch Chief
Office of Regional Counsel, Region VIII
Nancy Marvel, Air Team Leader
Office of Regional Counsel, Region IX
David Dabroski, Air and Toxics Team Leader
Office of Regional Counsel, Region X
Asbestos Enforcement Contacts
Regions I—X

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io Sr 4 ..,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
‘4. WASHINGTON. D.C. 20460
44 pq I
O ic or
INIORCEMENT AND
COMPtI* 4C MONITO II,G
MEMORANDUM
SUBJECT: Defining the “Violating Facility” for Purposes of
Listing Asbestos Demolition and Renovation Companies
Pursuant to Section 306 of the Clean Air Act
QUESTION PRESENTED: Can EPA use the business address or the
address of some other property used by an asbestos
demolition and renovation company to identify the
“violating facility” when placing the company on the
List of Violating Facilities?-
ANSWER PRESENTED: The business address or the address of some
other property used by an asbestos demolition and
renovation company may be used to identify the
“violating facility,” rather than the address of
the particular site involved in the violating activity,
when placing an asbestos demolition and renovation
company on the List of Violating Facilities. Under
the definition in $ 15.4, the “facility” includes
“any ... locationor site of operations ... to be
used in the performance of a contract, grant or loan.”

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2.
DISCUSSION
Background
Section 306(a) of the CAA (42 U.S.C. S 7606(a)) prohibits
federal agencies from entering into any contract for goods,
materials or services with a person who has been convicted of
certain violations of the CAA if the contract is to be performed
at “any facility at which the violation which gave rise to such
conviction occurred if such facility is owned, leased or supervised
by such person.” This section provides the statutory authority
for mandatory listing of CAA violators.
Section 306(c) of the CAA (42 U.S.C. S 7606(c)) is the
statutory basis for the discretionary listing of CAA violators.
It directs the President to issue an order:—---
(1) requiring each Federal Agency ... to effectuate the
purpose and policy of (the CAA] in such contracting
or assistance activities, and (2) setting forth pro-
cedures, sanctions, penalties, and such other provi-
sions ... necessary to carry out such requirement.
Section 508(c) of the Clean Water Act (CWA) (33 U.S.C. $ 1368)
as amended on October 18, 1982, by Pub. L. 95—500, S2, contained
an almost identical provision.
These provisions were implemented by Executive Order 11,738,
issued on September 12, 1973 (38 Fed. Reg.-- 25,161). The Order
states that it is the policy of the Federal Government
to assure that each Federal agency empowered to enter
into contracts for the procurement of goods, materials,
or services and each Federal agency empowered to extend
Federal assistance ... shall undertake such procurement

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3.
and assistance activities in a manner that will result
in effective enforcement of the Clean Air Act and the
(Clean Water Act).
Exec. Order No. 11,738, 35 Fed. Reg. 25,161 (1973)
On April 16, 1975, EPA promulgated regulations at 40
C.F.R. Part 15 (40 Fed. Reg. 17,124) which provide procedures
for insuring that Executive Branch agencies conduct their
procurement and assistance programs in accordance with the
President’s responsibi1ity for ensuring compliance with CAA
and CWA standards. These regulations authorize EPA to suspend
or bar “facilities” which are violating the CAA or the CWA from
receiving Federal contracts or subeontracts, grants or loans,
by placing them on a List of Violating Facilities. The regula-
tions require mandatory .listing of violating “facilities” after
the owner or operator is convicted for criminal violations
under 5 113(c)(1) of the CAA or S 309(c) of the CWA. They
provide for discretionary listing of facilities where there are
continuing and recurring civil violations of the CAA or CWA.
The EPA List of Violating facilities is published in the
Federal Register twice a year and is updated in the Federal
Register whenever a facility is added to the list or removed
from the list. The List is also transmitted to Federal agencies
with assistance responsibilities and to the General Services
Administration, which publishes a consolidated list of barred,
suspended or ineligible contractors.
1/ These regulations were revised on September 5, 1985
(50 Fed. Reg. 36,188).

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4.
The Problem
The question which this memorandum addresses is what
is the “facility” to be placed on the List in the case of an
asbestos demolition and renovation company which has a history
of continuing and recurring violations of the National Emission
Standard for Asbestos (hereafter the Asbestos NESHAP) or which
is owned or operated by a person who has been convicted of a
criminal violation of the Asbestos NESV!AP.2/ Since asbestos
demolition and renovation companies provide services, it is
sometimes more difficult to identify the “facility” of an as-
bestos demolition and renovation company than it is to identify
the “facili.ty” of a company which produces goods. Goods are
generally pràduced in or e or more buildings owned or leased by
the producer. Sometimes services are provided at a location
owned or leased by the provider. In other cases, services are
provided at a location owned or leased by the purchaser of the
service.
Asbestos demolition and renovation companies which violate
the asbestos NESRAP regulations generally do so in the course
of perforling a contract to demolish or renovate a building
which is owned or leased- by . one else. If the contractor
violates the asbestos regulations, the violations are most
likely to occur at the demolition or renovation site. Listing
2/ Asbestos NESHAP regulations, issued pursuant to S 112
of the Clean Air Act, are codified at 40 C.F.R. Part 61,
S 61.140 et seq .

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5.
the address of the property at which the demolition or renovation
work occurred as the “violating facility” would not accurately
identify the asbestos demolition and renovation company which
performed the work and, therefore, would not accomplish the
intended purpose of CAA S 306(a) —— to assure that persons or
corporations convicted of a knowing violation of CAA standards
or limitations are ineligible to enter into Federal contracts
until the continuing or recurring violation has been corrected.1/
The issue is whether CAA S 306 and the regulations promul-
gated to implement this section, 40 C.P.R. Part 15, permit EPA
to list, as a “facility”, the executive office (or similar
address) of the person (or company) providing the services and
taking the action that violated the CAA.
Definition of Facility
EPA regulations implementing the Contractor Listing Program
are found at 40 C.F.R. Part 15. Section 15.11 authorizes the
Listing Official to “place a facility on the List” under stated
conditions. Section 15.4 defines “facility”:
“Facility” means any building, plant, installation,
structure, mine, vessel or other floating craft,
location or site of operations owned, leased or
supervised by an applicant, contractor, grantee,
or borrower to be used in the performance of a con-
tract grant or loan . Where a location or site of
operations contains or includes more than one build-
ing, plant, installation, or structure, the entire
location or site shall be deemed to be a facility,
3/ Of course, in cases where the owner of the building which
was renovated or demolished has also violated the asbestos
NESHAP, the building may also be listed as a “violating facility”.

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6.
except where the Assistant Administrator determines
that independent facilities are located in one
geographic area. (emphasis added).
For the purposes of the Contractor Listing Program, the
faci1ity” of a company includes any location used by the com-
pany to produce the particular goods or provide the particular
services which the government may wish to purchase or assist
others to purchase under a particular contract.4/ To determine
whether a particular “buil ing, plant, installation ... location
or site” is part of a “facility” at which a violation giving
rise to a criminal conviction occurred, or is part of a “facility”
which has a record of continuing or recurring noncompliance
with clean air (or water) standards, one should look at the
relatioitship of the “building, plant, installation ... location
or site,” to the production of the goods or services which the
government might procure or assist others in procuring . Depend-
ing on circumstances, the relevant “facility” may or may not
include all locations owned by a company. If several different
locations are involved in manufacturing a particular product or
4/ A diI iient definition of “facility” is used in the Asbestos
NESHAP, 40 CSF.R. 5 61.141. That definition should be used for
the purpose of determining whether the owner or operator an of
an asbestos demolition and renovation company complies with
the NESHAP. If the Agency determines that the owner or operator
of the company violated any of the requirements of the NESHAP,
then the definition in 40 C.F.R. S 15.4 should be used to
determine what the “violating facility” is.

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7.
in supplying a particular service, all of those locations
together make up the “facil.ity”.S/
The Legislative History
This definition of wfacility is consistent with the pur-
pose of S 306, which was designed to be a sanction available to
EPA against those who would provide goods and services to the
Federal government using noncomplying facilities. Section 306
of the CAA is derived from Senate bill S. 4358. Section 306(a)
of the Senate bill read as follows:
Sec. 306(a) Any person (1) required to comply with
an order issued by a Federal court pursuant to this Act
who fails to comply within the time period specified
in such order, or (2) convicted by a Federal court for
knowing violation of any applicable schedule or time-
table of compliance, emissions requirement, prohibition,
emission standard, or standard of performance, shall be
ineligible to enter into any contract with any Federal
agency for the procurement of goods, materials, and
services to perform such work at or with any facilities
subject to such action by the court which are owned,
leased or supervised by such person . Such ineligibility
shall continue until the Secretary (of HEW] certifies
compliance with such order, or that the conviction
giving rise to the violation has been corrected.
(emphasis added).
S. 4358, 91st Cong., 2d Sess. S 306 (1970).
5/ Where a company has several different divisions or factories
or regional offices, each producing particular goods or services
independently from each other, each would be a separat.e facility;
and if one of those divisions or factories or regional offices
is violating the CAA or the CWA, that particular unit of the
company is the only one that would be placed on the List of
Violating Facilities.

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8.
The Senate Committee on Public Works issued a report to
accompany S. 4358, in which the following explanation of Section
306 was given:
The Committee considered proposals offered by
Senator Muskie and Senator Cook to assure that the
Federal Government does not patronize or subsidize
polluters in its procurement practices and policies.
Section 306 would make any person or corpora-
tion who fails to comply with a court order issued
under this ct or who is convicted of a knowing
violation of any schedule or timetable of compli-
ance, emission requirement, prohibition, emission
standard, or standard of performance, ineligible
for a Federal contract for any work to be done at
the polluting facility....
This section would be limited, whenever
feasible and reasbnable, to contracts affecting
only the facility not in compliance , rather than
the entire corporate entity or operating division .
There might be cases where a plant could not
participate in a Federal contract due to a violation
but another plant owned by the same company might bid
and transfer other work to the first plant. This type
of action would circumvent the intent of this pro-
vision . In this case, the company’s second facility
should also be barred from bidding until the first
plant returns to compliance.
There would also be instances where a second plant
within a corporation was seeking a contract unrelated
to the violation at the first plant. In such a case,
the unrelated facility should be permitted to bid and
receive Federal contracts. (emphasis added).
S. Rept. No. 1196, 91st Cong., 2d Sess. 39 (1970).
Section 306 of S. 4358 was passed by the Senate without
change. A companion bill in the House, H.R. 17255, 91st Cong.,
2d sess. (1970), had no provision about procurement policies.
In conference, the provision making persons convicted of knowing
violations of the CAA ineligible for Federal contracts or assis—

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9.
tance was retained In lieu of the provision of the Senate
bill extending ineligibility to persons subject to, but not
complying with, court orders, the conference committee substi-
tuted a more general requirement that “the President shall
cause to be issued an order (1) requiring each Federal agency
to effectuate the purpose and po4icy of this chapter in
such contracting and assistance activities,...”6/
The Executive Order
The President complied with this mandate by issuing
Executive Order No. 11,602 on June 29, 1971. E.O. No. 11,602
was superseded by Executive Order No. 11,738, on September 10,
1973.7/ Exec. Order 11,738 sets forth the following Federal
6/ When the CAA amendments were reported out of the conference
committee, the conference report on Section 306 stated:
The conference substitute is more limited than
the Senate provision. It provides that persons con-
victed of a knowing violation of standards or limita-
tions shall be ineligible to enter into Federal con-
tracts until the Administrator certifies that the
violation has been corrected. The remainder of the
conference substitute follows the Senate amendment
by requiring the President to issue an order requiring
Federal agencies (1) to assist in the implementation
of this act and (2) to establish sanctions for non-
compliance.
Conference Report No. 1783 (to accompany H.R. 17255), 91st
Cong. 2d Sess. (Dec. 17, 1970), reprinted in 1970 U.S. Code
Cong. & Ad. News 5356, 5389.
7/ Exec. Order No. 11,738, 38 Fed. Reg. 25,161 (1973), amend-
ed Exec. Order 11,602, 36 Fed. Reg. 12,475 (1971), by adding the
words “Federal Water Pollution Control Act” to S 1 and changing
references to “the Act” in SS 2, 4, 6 and 9 to “the Air Act”
and adding references to “the Water Act.” Exec. Order 11,738
also adds S 11, which requires that regulations issued pursuant
to CWA S 508 shall be uniform with regulations issued pursuant
to CAA S 306 to the maximum extent possible.

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10.
procurement policy:
Section 1. policy . it is the policy of the Federal
Government to improve and enhance environmental quality.
In furtherance of that policy, the program prescribed
in this Order is instituted to assure that Federal
agencies are empowered to enter into contracts for
the procurement of goods, materials or services or
to extend Federal assistance by way of grants or
contracts in such a manner that will result in effec-
tive enforcement of the Clean Air Act ... and the
Federal Water Pollution Control Act. ... (emphasis
added).
Section 2 of the Order states, in part:
(b) In carrying out his responsibilities under this
Order, the Administrator shall ... designate facili-
ties which have giyen rise to a conviction for an
offense under section 1l3(c)(l) of the Air Act
(andj publish and circulate ... lists of those faci-
lities, together with the names and addresses of the
persons who have been convicted of such offenses
(emphasis added).
Section 3 prohibits any Federal agency from entering into any
contract with or extending any assistance to any facility which
has been listed pursuant to CAA S 306. Section 4 requires that
all Federal procurement regulations
issued by any agency of the Executive Branch shall
be amended to require ... inclusion of a provision
requiring compliance with the Air Act, the Water Act,
and standards issued pursuant thereto in the facili-
ties in which the contract is to be performed, or
which are involved in the activity or program to re-
ceive assistance . (emphasis added).
Section 5 authorizes the Administrator of the Environmental
Protection Agency “to issue such rules, regulations, standards
and guidelines as he may deem necessary and appropriate to
carry out the purposes of this Order.” Sections 1 and 5 of

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11.
Exec. Order 11,738, together with S 306(c) of the CAA (and
S 508(c) of the CWA), provide the authority for the discretion-
ary listing program. EPA’S Contractor Listing regulations,
codified at 40 C.F.R. Part 15, implement the Executive Order.
Discussion
As defined in 40 C.P.R. S 15.4, a “facility” includes any
building, location, or site to be used in th course of perform-
ing the contract or loan. While the buildings or sites at
which work is performed are often also the buildings or sites
at which a violation occurs, the fact that the violation may
occur “off-site”, i.e. , at a location owned or operated by a
customer, does not mean that--such locations—a-re not part_of the
“facility” “to be used in the performance of” a contract. The
“facility” of a contractor also includes the business address
which the company uses in its contracts, even if the business
address is simply a post office box.
As Congress recognized, a company may be violating the
CAA or CWA at one “facility” and have other complying “facilities”
which are not involved in the production of the same goods and
services, Congress differentiated between entirely uninvolved
“facilities”, on the one hand, and involved “facilities”, e.g. ,
where a sister “facility” “B” was used to circumvent a ban on
goods or services produced at “facility” “A”.
The definition of “facility” in S 15.4 implements that
concept. If an asbestos demolition and renovation company has

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12.
two or more divisions which operate independently of each
other, each division would, at least presumptively, be a separate
“facility” under the definition found in S 15.4. If only one
of the divisions is convicted of criminal violations of the
asbestos NESHAP or if only one of the divisions has a record of
continuing or recurring noncompliance with the asbestos NESHAP,
only that division of the company would be placed on the List
C
of violating Facilities, absent the kind of situation described
by Congress.
This is the only way that an asbestos demolition and reno-
vation “facility” can be defined which is consistent with the
intent of the statutes, the executive orders, and the regulations.
A contrary interpretation would fail to “effectuate the purpose
and policy of (the CAAJ in (the government’s] contracting and
assistance activities” as required by S 306. The “facility”
concept is intended to carry out, not to thwart, the intent of
S 306. While the business address of the “facility” will
often coincide with the address of the site where violations
occurred, there is no requirement in S 306 that it do so.
Listing is intended broadly to sanction “persons” who continue
to violate the CAA by depriving them of access to Federal con—
tracts for goods and services and to federal grants and loans.
Congress did not intend to limit this sanction to contractors
who engage in violative conduct on property that they happen to
own or control. So long as the business address of the asbestos

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13.
demolition and renovation company is fairly associated with
the activity which is the violating conduct, that address may
be used to identify the “facility” to be placed on the List,
notwithstanding that additional, related work (and the actual
violations) occurred elsewhere.

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K

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— 15 —
K. Section 307: Administrative Proceedings and Judicial Review
1. Federal Register Publication of Significant 09/01/79
Final Actions Under Title I of the Clean
Air Act
2. Requirement to Publish All Significant 02/23/83
Final Actions Under Title I of the Clean
Air Act

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11
Canlinal®

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Federal Register Publication of Significant Final Actions
Under Title I of the Clean Air Act
(09/01/79)
File at Part K, Document #1

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____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
0 1SEP ‘1979
OFFICE CF
GENERAL COUNSEL
MEMORANDUM
SUBJECT: Federal Register Publication of Significant
Final Actions Under Title I of the Clean Air
Act
FROM: General
‘ Assistant Admini a iç 6 Air Noise
and Radiation - °“ “
Assistant Administrator for Enforcement /p ,. f i1AVde
TO: Regional Administrators
Director, Office of Air Quality Planning
and Standards
Associate General Counsel for Air, Noise and
Radiation
Director, Stationary Source Enforcement
Division
POLICY
Effective immediately, notice of significant final
actions under Title I of the Clean Air Act must be promptly
published in the Federal Register . The significant actions
that are not now routinely noticed in the Federal Register
and which are the primary focus of this memo, are: applic-
ability determinations under , NESHAP and PSD, issuãi.ce
and denial of PSD, NESHAP aTI source review permits;
and issuance and denial of Section 111(j) waivers . Guidance
on publishing notice of acti under Title LI will be
circulated later.
RATIONALE
A number of considerations support the policy of
publishing final actions in the Federal Register . First,
section 307(b) (1) now provides that the 60 day period for
obtaining judicial review of any final action runs from the
date on which notice appears in the Federal Reqister. By
starting the 60—day period for judicial review, publication
forces interested persons to seek review promptly, or not at
all. This gives finality to our actions, and avoids litigation

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—2—
over stale issues. (We are now defending the issuance of a
PSD permit in a lawsuit filed a year after the permit was
issued.)
Second, under the Administrative Procedure Act, if we
publish our final actions, we can rely on them as precedent
in subsequent cases. See 5 U.S.C. §552(a) (2).
Third, publication of final actions will support our
position that all final actions are directly reviewable in
the courts of appeals. Although both the plain langage and
the legislative history. of Section 307(b) (1) support this
position, a recent decision of the United States Court of
Appeals for the Fifth Circuit held that an NSPS applicability
decision was reviewable in the district court. PPG Industries
v. Harrison , 587 F.2d 237 (1979). Publication of the
determination in the Federal Register might have helped us
persuade the Court that it was a final action and the
result of an established deliberative process. We expect
that other persons affected by final Agency actions will
seek judicial review in the district courts, where they may
obtain lengthy discovery and a trial, rather than be limited
to a review of the record made by the Agency. Publication
of the actions in the Federal Register will strengthen our
position that review is in the courts of appeals.
Fourth, publication of actions will tend to insure
consistent decision-making throughout the Agency. Congress
has stressed the importance of such consistency in Section
301(a) (2) (A) of the Act.
IMPLEMENTAT ION
We do not expect that giving notice of these significant
actions in the Federal Register will impose great resource
burdens on your offices. In the case of the significant
actions listed above, the responsible office normally makes
a written determination, including a statement of the facts
and the rationale for the determination. All that is
required is to put the determination into Federal Register
format. If the determination seems too long to be published
verbatim, the Federal Register notice could merely summarize
it, and give notice of how interested persons can obtain the
full text. Permit determinations will probably be the only
actions lengthy enough to be candidates for this abbreviated
approach.
Federal Register notices of final action may not reveal
information that is entitled to treatment as confidential.
You should remind regulated persons that a notice will be

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—3—
published, and that they should clearly indicate in their
submission what information they want to be treated as con-
fidential. See 40 C.F.R. Part 2, Subpart B, “Confidentiality
of Business Information.”
If you feel that sending individual notices of final
actions to the Federal Register is a resource burden, you
could accuminulate them and send them in batches. You must
send such batches at least every month.
Note that this policy is prospective. We do not re-
quire that past actions be published, although they cannot
be relied on as precedent unless they are published.
If you need any help in interpreting or implementing
this policy, please contact one of the following persons on
our staffs:
Office of General Counsel - Earl Salo, 755-0763
Office of Air, Noise and Radiation - Dick Rhoads,
629—5251
Office of Enforcement - Martha Prothro, 755-2523
In particular, please advise us if you need guidance on
the proper format for these Federal Register notices. Alsc,
please advise us if you think there are additional categories
of significant final actions under Title I that we have not
listed.
We are also considering which actions under Title II
should be noticed in the Federal Register . We welcome any
suggestions on this question.
Attached as an example is a Federal Register notice
of the issuance of a PSD permit.
Attachment

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ENVIRONMENTAL PROTECTION AGENCY
Region I
Notice of Approval of PSD Permit to Lime Products Corporation
Notice is hereby given that on :June 19, 1979, the Environmental Protectic
Agency issued a Prevention of Significant Deterioration (PSD) permit to Lime
Products Corporation for approval to construct an asphalt batch plant in Warren,
Maine. This permit has been issued under EPA’s Prevention of Significant Air
Quality Deterioration (40 CFR Part 52.21) regulations applicable to the asphalt
batch plant subject to certain conditions, including:
I. Particulate matter emission limitation shall not exceed 0.05 grldscf (10
lbs/hr.)
2. Retrofit with air pollution control equipment as specified in application.
3. The aggregate used to be comprised of limestone and/or dolomite (pH
greater than 7).
The PSD permit is reviewable under Section 307 b)(1) of the Clean AIr Act
only in the First Circuit Court of Appeals. A petition for review must be filed on
or before ( 60 days from publication in the Federal Register) .
Copies of the permit are available for public inspection upon request at the
following locations:
Environmental Protection Agency
Region I, Air Branch, Room 1903
3FK Federal Building
Boston, Massachusetts 02203
Department of Environmental Protection
Bureau of Air Quality Control
State House
Augusta, Maine 04330
Date ‘2- 1 ‘ i V1 - k-i...cc# u. i4 - fkt
Rebecca \V. Hanmer, Acting
Regional Administrator, Region I

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ll llPOIR TA WI I WIOTL S= - I

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Requirement to Publish All Significant Final Actions
Under Title I of the Clean Air Act
(02/23/83)
File at Part K, Document #2

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L

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08-12-1994 14:43 202 260 0500 EPA OE P.02/10
___ a
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
PR—
AUS 12 1S9
OFFcEO
ENFOR MENT MID
OOMPUAIIcEA88LjRANc
SUBJECTS Enforcement Response Policy for Treatment of
Information Obtained Throug ...e Gafl Air Act Section 507
Small Business A. 3 .-Programs
FROM: Steven A. Herma t 1 J
Assistant Adminis r(tor
TO: Assistant Administrators
Oenoral Counsel
Regional Administrators
Deputy Regional Administrators
Regional Counsel
This memorandum sets forth the Agency’s enforcement response
policy on the treatment of violations detected during compliance
assistance provided under state small business assistance
progra s (SEAPs) required under Section 507 of the Clean Air Act
(CAA). 1 This policy responds to stat. and regional requests f or
guidance as to what incentives are appropriate to encourage small
businass s to seek SBAP assistance. It will allow EPA regions to
determine whether SBAPs are administered so as to ensure that
states have the enforcement authority necessary for approval of
their state implementation plans (SIPs).
The policy applies to information obtained by state agencies
administering Section 507 SBAPS, including agencies that also
manage permitting and enforcement programs. The policy sets
forth two general options designed to encourage small business
participation in SBAPs. In uzmary, this policy updates and
amends earlier EPA Section 507 guidance and endorses state SBAPB
that either (l give small business that voluntarily seek
compliance assistance a limited period to correct violations
observed or revealed as a reault of compliance assistance or, (2)
if the SBAP is independent of the delegated state air enforcement
program, keep confidential information that identifies the names
and locations of specific small businesses with violations
revealed through compliance assistance. These two options are
For present purposes, this policy applies only to
violations of the Clean Air Act that are detected through SBAP
compliance assistance. The Agency will clarify the application
of this policy to violations in other media as soon as is
practicable.
i.isI,4 u, dibIu
Pvh.d.V Ig, C*Wi
1 10% i. d.d

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08-12-1994 14:44 202 260 0500 EPA 0€ P.03/jo
2
set forth in detail below.
In developing these alternatives, EPA balanced three primary
considerations, First, the Agency is seeking to provide the
states with ample opportunity to adopt innovative approaches to
compliance within federal guidelines. Thus, the policy options
set forth below should be regarded as outer limits, within which
statse have flexibility to tailor 8BAPs suited to state needs.
For example, states that exercise enforcement discretion on a
case—by-case basis to determine th. appropriate response to
violations detected through 8BAP compliance assistance meet the
general criteria set forth in this policy. In addition, EPA’S
“Guidelines for Iinpleitentation of Section 507 of the 1990
Amendments” specifically encourage 8BAPs to leverage the efforts
of existing technical assistance providers, which have had a
long—standing practice of offering their services confidentially
to industry. Thus, this policy preserves the states’ option to
continue to maintain confidentiality in their SEAPS.
Second, EPA recognizes that participation In SBAPS is
typically voluntary. Assistance is provided only upon request,
and therefore the programs will succeed in promoting compliance
only if assistance services are sought on a widespread basis.
Thus, the Agency is seeking to give the states the ability to
provide incentives that will encourage small businesses to
participate in SEAPS.
Third, the CM requires the state to have authority to take
appropriate enforcement action with respect to CM violations.
Thus, EPA has an obligation to ensure that state SEAPs are
structured so as to maintain an appropriate level of enforcement
authority within delegated state programs. The Agency believes
the options set forth in this policy will allow states sufficient
latitude to use an appropriate combination of delegated Btato
enforcement authority and compliance assistance activity to
improve compliance in the small business community.
rrection oariod option
This policy option allows states to give small businesses up
to 90 days either to correct, or to take substantial steps to
correct (e.g. apply for necessary permits, secure financing,
order equipment) violations discovered during compliance
assistance. For violations that cannot be corrected within 90
days of detection, the correction period may be extended up to an
additional 90 days i i a written agreement that establishes a
compliance schedule.’ To ensure that S8APB do not provide an
2 Obviously, st&tea may not offer a correction period for
violations of CM provisions for which EPA has not delegated
enforcement authority to the state.

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03-12-1994 14:45 202 260 0500 EPA CE 4/10
3
unint.nded shield, the following conditions must apply:
1. During the correction period, the state may commit to forego
all enforcement responses, including notice& of violation
(NOVa) and civil penalties, for violations that are observed
by or revealed to the state as a result of compliance
assistance provided in accordance with this policy.
Rowever the state BhalI. not agree to forego during the
correction period 1) criminal actions, 2) actions to enjoin
imminent and substantial endangerment to human health or th3
environment or 3) actions to addr.ss recurrences of
violations for which a prior enforcement response had been
taken. The correction period shall be sufficient for the
source to correct 1 or to takO substantial steps to correct
(e.g. apply for necessary permits, secure financing, order
equipment) the violation, but is not to exceed 90 days
following detection. For violations that cannot be
corrected within 90 days, states may extend the correction
period for an additional period not to exceed 90 days, so
long as the state enters into a written agreement with the
source that sets forth the additional correction period and
any additional steps to be undertaken by the source to
achieve compliance. The requirements of the correction
period should be made clear to the source prior to offering
compliance assistance.
2. Although the state may agree, except as provided in
paragraph (1) above, that no enforcement action will be
taken for violations that are revealed or observed through
compliance assistance and corrected within the correction
p.riod, the state shall not give guarantees that the
information obtained or revealed through compliance
assistance will be kept confidential. However, this policy
option does not require SBAPs to provide to EPA information
that identifies the names or locations of specific
businesses that are found to be in violation through
compliance assistance. In general, EPA will look to BBAPs
primarily for information that shows whether SBAPs are
successful in promoting compliance or. that generally
identifies business sectors with chronic compliance
problems. Further, this policy does not affect exiBting
Agency policy or regulations regarding treatment of
confidential business information.
3. Violations detected through state enforcement inspections
shall remain fully enforceable by the state, unless the
violation was aloe previously observod or revealed through
voluntary compliance assistance and the source has made a
commitment to come into compliance during a correction
period. 8tates must reserve their discretion to conduct
scheduled enforcement inspections at all times including
during the correction period.

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08-12-1994 14:46 202 260 0500 EPA 06 P.05,io
4
4. Upon expiration of the correction period, the small business
shall be subject to all applicable enforcement response
policies (which may includ. discretion whether or not to
take formal enforcament action) with r.sp.ct to all
violation. that had bs.n revealed through compliance
assista ce and were not corrected within the correction
period. The penalty in any such action may be calculated
to include the correction period. This policy doe. not
limit the states’ discretion to us. information on
violations observed or revealed through compliance
assistance as evidenc, in subsequent enforcement actions,
for example to show prior or repeated violations.
5. Ths state’s actions in providing compliance assistance shall
not be a legal defense in any enforcement action. However,
a source’s good faith efforts to correct violations detected
during compliance assistance may be considered as a
mitigating factor in determining an appropriat, enforcement
response or penalty in subs.qu.nt enforcement actions.
6. Section 507 makes clear that SBAPs are intended primarily to
benefit small businesses that do not have the technical or
financial capabilities to meet .nvironaental raquir.msnts
without SBAP assistance. Thus, SBAPs shall state explicitly
that the program is subject to the eligibility r9uirements
sat forth in Section 507(c). These requirements include the
requirement that only sources that are non—major for all, air
program. are eligible, except as provided under Section
507(c)(2). Small businesses excluded by states or the
Administrator under Section 507(c) (3) (A) or (B) shall be
ineligible for application of this policy option. In
addition, if a source is already the subject of a pending
NOV or enforcement action, the correction period option
cannot be applied to the violations involved in the
enforcement action. Moreover, the states should retain
their discretion to deny compliance assistance on a case-by-
case basis, for example if a facility is already scheduled
for an enforcement inspection or has a history of non-
compliance. For sourcss that are ineligible for SB AP
assistance, and therefore this policy option, the applicable
enforcement response policies (which may include discretion
as to whether or not to take enforcement action) apply.
7. Small businesses shall be eligible only once for an on-site
This policy does not require, or even propose, that state
SBAPs, as opposed to separate agencies or offices, have
regulatory enforcement authority. Moreover, this policy gives
SBAPB considerable flexibility as to how to interact with state
regulatory enforcement programs under the correction period
option.

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08- 12-1994 14:47 202 260 OEOO EPA OE P.06,10
S
compliance audit or similar on-site assistance resulting in
a correction period as described above, unless a requeBt is
mad. for such an audit or assistance in order to comply with
requirements that did not exist when prior compliance
assistance was requested and provided. For on-site
compliance assistance provided in response to a second or
subsequent request, correction periods shall be granted only
for violations of new requirement..
a. States following this policy shall includa and implement
plans for conducting follow—up inspections or auditi, or
other activities sufficient to verify and track compliance.
Under this opt ton, exposing uncorrected violations to the
possibility of an enforcement response, including penalty
assessment, after the correction period has expired is essential
if w. are to make substantial gains in compliance through these
small business assistance programs.
This policy option has several important advantages over
other options we have considered. First, it offers certainty, in
that a small business requesting and receiving compliance
assistance will know that no state enforcement will result for
violations that are identified and corrected within the
correction period. We expect this degree of certainty to ensure
greater participation in SBAPa, especially if SBAPI give official
recognition to businesses that have participated successfully in
SBAPs. Second, the policy will allow greater openness between
SBAP5 and specific facilities, the small business community in
general, and other state officials. It will promote the sharing
of information on pollution prevention measures, cost effective
means of compliance and other valuable compliance-related
activities with and among the regulated community. In addition,
the policy will make it easier for states to use facility-wide or
industry-wide information obtained through compliance assistance
programs to address chronic violations with an appropriate
balance of targeted compliance assistance and enforcement
strategies.
Confidentiality 9 ption
This policy option applies only to SSAPs that are operated
strictly independently from the stats’s delegated regulatory
enforcement program. The requirement for independence is met if
either (1) the 8BhP is not operated out of the state air
pollution control agency (as defined in CM Section 302) or (2) a
regulation, official policy, memorandum of understanding or other
official document establishes independence between the SBAP and
the enforcement program. Under this option, SBAPS may keep

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08 I’ 1994 14.48 202 260 0500 EPA 06 P.O7 jg
6
confidential 4 information regarding violations detected through
SHAP compliance assistance, including the names and locations of
the Bmall businesses. However, to ensure that deterrence
continues to operate as an incentive to participation in 8BAP.,
the following conditions apply to this option:
1. Although SBAPs choosing this option may keep confidential
information that identifies specific small bueineue. as
having violations, the SBAP shall make general statistical
and other information regarding violations detected through
compliance assistance available to the state regulatory
enforcement program. This information should be sufficient
to assist the enforcement program in developing targeted
enforcement strategies, as well as to complement compliance
assistance activities.
2. State regulatory enforcement programs in states selecting
this option shall retain their full discretion to take
enforcement action against small businesses who receive SBAP
assistance. However, the enforcement program may consider
good faith efforts to achieve compliance through
participation in the 8BhP in determininq the appropriate
enforcement response in specific cases.
3. Conditions 5, 6, and 8 applicable to the correction period
option apply also to the confidentiality option.
These policy options do not limit EPA’s or citizens’
existing authority to conduct inspections or take enforcement
action. However, EPA is committed to helping SBAPs succeed.
Thus, in taking enforcement action against a specific source, EPA
will not routinely seek information obtained from or revealed by
the source during on—site compliance assistance provided by state
SUAPs. In addition, EPA will give considerable weight to a
source’s participation in a 5BhP and good faith commitment to
achieving compliance in determining an appropriate enforcement
response. In general, many of the small businesses who will be
eligible for SBAP compliance assistance are rarely or never
subject to federal inspections for provisions Of the CAA for
which the state has received a delegation, and therefore EPA does
not expect much overlap between federal enforcement programs and
SBAP5. Indeed, EPA expects that by working in accordance with
this policy, SBAPe will increase compliance in the small business
State freedom of information laws may place limits on the
degree of confidentiality that can be given to information. This
policy option is intended primarily to allow states to keep
information known to the SBAP confidential from the state
enforcement program,

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08-12- [ 994 14.50 202 260 0500 EPA OE p.08,t o
7
community without affecting the axpeaure of small businesses to
fsd.ral. enforce isnt.
cc: Director, Office of Small and Disadvantaged BusineSS
Utilization
Small Business and Asbestos Ombudsman

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oe.- --1994 14:50 202 260 0500 EPA 06 .og,ie
SU) AR 1 OF EPA’S CLEAN AIR ACT SECTION 501 ENFORCEMENT POLICY
This summary outlines EPA’s Enforcement Response Policy
(ERP) for Section 507 of the Clean Air Act (CM). The new policy
is designed to encourage small businesses to call on state Small
Business Assistance Programs (SBAP5) established under Section
507 to find practical ways to comply with the Act. EPA expects
the new policy to usher in a new era of trust between small
businesses and government agencies and to change the way small
businesses view environmental requirements. The result will be
more compliance and cleaner air for the public.
The policy provides states with two options for providing
compliance assistance as required by Section 507. It offers
states the flexibility to use innovative approaches for providing
compliance assistance to small businesses, while at the same time
enabling states to continue to use enforcement actions to ensure
strict compliance with the CM. However 1 the new policy does not
weaken clean air standards: under either option, all small
businesses are unconditionally responsible for full compliance
with the applicable requirements of the CM,
This policy responds to many state and regional requests for
guidance as to what incentives would be appropriate to offer
small businesses to encourage participation in SBAPa. States
were concerned that many small businesses would not seek
compliance assistance from the government if violations
identifisd during compliance assistance resulted in enforcement
actions. The Regions were concerned about whether they could
approve SIPs if a SBAP provided confidentiality for small
businesses receiving compliance assistance, or allowed sources
the opportunity to correct violations discovered during
compliance assistance before an enforcement action would be
taken.
This policy responds to these concerns by offering SBAPs the
option to choose one of two choices:
1. SBAPs may allow small businesses that receive compliance
assistance up to 90 days, with the possibility of an
additional 90—day extension, to correct any violations
discovered under the SBAP program. Any violations remaining
at the end of that period are subject to existing
enforcement response policies, which may include discretion
not to take enforcement action in appropriate cases. To
ensure that tM state has the ability to take enforcement
actions for any violations that remain uncorrected, SBAPB
offering the correction period can not give guarantees that
they will keep information on violations confidential.
2. SBAPs may guarantee that information identifying specific
small businesses that have violations detected throu h
compliance assistance will be kept confidential, subject to
two important limitations. First, the state must retain the

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08-12-1994 14:51 202 260 0500 EPA OE P.10,10
2
ability to investigate and/or take enforcement action at any
time for any violation discovered independantly from the
Section 507 program. Second, confidential compliance
assistance can only be offered through SaAPa that operate
independently of the state’s delegated regulatory
enforcement program.
The policy iøt forth these options, including additional
conditions, in more detail. In developing these options, EPA had
to balance several considerations. First, the Agency wanted to
provide states with the flexibility to use innovative approaches
for providing compliance assistance to small businesses. Thus,
the states nay experiment with a wide range of options, as long
as they do not adopt approaches that are more lenient than the
options set forth in this policy.
Second, the Agency recognizes that compliance assistance is
generally sought voluntarily and SHAPe will not be successful
unless small businesses are willing to use the services that are
offered. Providing a limited grace period, one of the two
options to address this concern, is EPA’s preferred incentive for
participation.
Finally, states have an obligation under the Clean Air Act
to enforce against violations. The policy maintains atat
authority to use an appropriate combination of enforcement and
compliance assistance activities to beat achieve compliance In
the small business community.
The policy takes into account that small businesses have a
special need for help to comply with .nvironm.ntal laws because
they generally lack the resources available to larger companies.
Thus, the policy requires states to limit application of the
policy to small busineass that meet the eligibility requirements
in Section 507.
The Office of Enforcement and Compliance Assurance contacts
regarding this policy are Geoff Carver, at (202) 260-3914, and
Lynn Vendine]lo, at (202) 260—2842.

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