the EPA Claims Officer determines that the employee intentionally has materially misrepresented the costs, conditions or nature of repairs of the claim, he will refer it to appropriate officials (e.g., Inspector General, the employee's supervisor, etc.) for action. §14.14 Computation of award.

(a) The amount awarded on any item may not exceed its adjusted cost. Adjusted cost is either the purchase price of the item or its value at the time of acquisition, less appropriate depreciation. The amount normally payable for property damaged beyond economical repair is its depreciated value immediately before the loss or damage, less any salvage value. If the cost of repair is less than the depreciated value, it will be considered to be economically repairable and only the cost of repair will be allowable.

(b) Notwithstanding a contract to the contrary, the representative of an employee is limited by 31 U.S.C. 3721(i) to receipt of not more than 10 percent of the amount of an award under this part for services related to the claim. A person violating this paragraph is subject to a fine of not more than $1,000. 31 U.S.C. 3721(i).

AUTHORITY: 42 U.S.C. 7401 et seq.; 33 U.S.C. 1251 et seq.; E.O. 11738 of September 10, 1973 (38 FR 28161).

SOURCE: 50 FR 36191, Sept. 5, 1985, unless otherwise noted.

Subpart A-Administrative Matters § 15.1 Policy and purpose.

(a) It is the policy of the Federal Government to improve and enhance environmental quality. This regulation is issued to ensure that each agency in the Executive Branch of the Federal Government that is empowered to enter into contracts for the procurement of goods, materials, or services or to extend Federal assistance by way of grant, loan, or contract undertakes such procurement and assistance activities in a manner that will result in effective enforcement of the Clean Air Act (CAA), 42 U.S.C. 7401 et seq., and the Clean Water Act (CWA), 33 U.S.C. 1251 et seq., and does not favor firms where production costs may be lower due to noncompliance.

(b) This part establishes the List of Violating Facilities, procedures for placing a facility on the List of Violat

ing Facilities, removing a facility from the List of Violating Facilities, and procedures for ensuring that agencies in the Executive Branch of the Federal Government undertake their procurement and assistance activities in a manner that will result in effective enforcement of the CAA and the CWA.

§ 15.2 Scope.

(a) This regulation applies to all agencies in the Executive Branch of the Federal Government which award contracts, grants, or loans. This regulation also applies to government contractors and subcontractors and to recipients of funds under government grants and loans. The debarment or suspension that results from a mandatory or discretionary listing is facilityspecific and does not apply to other facilities of the same company.

(b) This regulation only applies to contracts, grants, or loans involving the use of facilities located within the United States.

(c) The rights and remedies of the Government under these regulations are not exclusive and do not affect any other rights or remedies provided by law.

§ 15.3 Administrative responsibility.

(a) Except for the power to issue rules and regulations, the Assistant Administrator for Enforcement and Compliance Monitoring and the General Counsel are delegated authority and assigned responsibility to carry out the responsibilities assigned to the Administrator of the Environmental Protection Agency under Executive Order 11738.

(b) The Assistant Administrator and the General Counsel are authorized to redelegate the authority conferred by this regulation.

§ 15.4 Definitions.

Administrator means the Administrator of the United States Environmental Protection Agency or his or her designee.

Agency means any department, agency, establishment, or instrumentality in the Executive Branch of the Federal Government, including corporations wholly owned by the Federal Govern

ment which award contracts, grants, or loans.

Air Pollution Control Agency means any agency which is defined in section 302(b) or section 302(c) of the CAA.

Applicant means any person who has applied for but has not yet received a contract, grant, or loan and includes a bidder or proposer for a contract which is not yet awarded.

Assistant Administrator means the Assistant Administrator for Enforcement and Compliance Monitoring, United States Environmental Protection Agency, or his or her designee.

Borrower means any recipient of a loan as defined below.

Case Examiner means an EPA official familiar with pollution control issues who is designated by the Assistant Administrator to conduct a listing or removal proceeding and to determine whether a facility will be placed on the List of Violating Facilities or removed from such list. The Case Examiner may not be: (1) The Listing Official; (2) the Recommending Person or anyone subordinate to the Recommending Person; or (3) closely involved in the underlying enforcement action.

Clean air standards means any enforceable rules, regulations, guidelines, standards, limitations, orders, controls, prohibitions, or other requirements which are contained in, issued under, or otherwise adopted pursuant to the CAA or Executive Order 11738, an applicable implementation plan as described in section 110(d) of the CAA, an approved implementation procedure or plan under section 111(c) or section 111(d), respectively, of the CAA or an approved implementation procedure under section 112(d) of the CAA.

Clean water standards means any enforceable limitation, control, condition, prohibition, standard, or other requirement which is established pursuant to the CWA or contained in a permit issued to a discharger by the United States Environmental Protection Agency, or by a State under an ap proved program, as authorized by section 402 of the CWA, or by a local government to ensure compliance with pretreatment regulations as required by section 307 of the Clean Water Act.

Compliance means compliance with clean air standards or clean water

standards. For the purpose of these regulations, compliance also shall mean compliance with a schedule or plan ordered or approved by a court of competent jurisdiction, the United States Environmental Protection Agency, or an air or water pollution control agency, in accordance with the requirements of the CAA or the CWA and regulations issued pursuant thereto.

Contract means any contract or other agreement made with an Executive Branch agency for the procurement of goods, materials, or services (including construction), and includes any subcontract made thereunder.

Contractor means any person with whom an Executive Branch agency has entered into, extended, or renewed a contract as defined above, and includes subcontractors or any person holding a subcontract.

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 contract, grant, or loan. Where a location or site of operations contains or includes more than one building, plant, installation, or structure, the entire location or site shall be deemed to be a facility, except where the Assistant Administrator determines that independent facilities are located in one geographic area.

General Counsel means the General Counsel of the U.S. Environmental Protection Agency, or his or her designee.

Governor means the governor or principal executive officer of a state.

Grant means any grant or cooperative agreement awarded by an Executive Branch agency including all subagreements awarded thereunder. This includes grants-in-aid, except where such assistance is solely in the form of general revenue sharing funds, distributed under the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. 1221 et seq.

Grantee means any person with whom an Executive Branch agency has entered into, extended, or renewed a grant, subgrant, or other assistance agreement defined under grant above.

List of Violating Facilities means a list of facilities which are ineligible for any agency contract, grant or loan.

List Official means an EPA official designated by the Assistant Administrator to maintain the List of Violating Facilities.

Listing proceeding means an informal hearing, conducted by the Case Examiner, held to determine whether a facility should be placed on the List of Violating Facilities.

Loan means an agreement or other arrangement under which any portion of a business, activity, or program is assisted under a loan issued by an agency and includes any subloan issued under a loan issued by an agency.

Person means any natural person, corporation, partnership, unincorporated association, State or local government, or any agency, instrumentality, or subdivision of such a government or any interstate body.

Recommendation to list means a written request which has been signed and sent by a recommending person to the Listing Official asking that EPA place a facility on the List of Violating Facilities.

Recommending person means a Regional Administrator, the Associate Enforcement Counsel for Air or the Associate Enforcement Counsel for Water or their successors, the Assistant Administrator for Air and Radiation or the Assistant Administrator for Water or their successors, a Governor, or a member of the public.

State means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, or the Trust Territories of the Pacific Islands.

Water pollution control agency means any agency which is defined in section 502(1) or section 502(2), 33 U.S.C. 1362 (1) or (2), of the CWA.

§ 15.5 Exemptions.

(a) (1) Transactions of $100,000 and less. Except as provided in §15.5(b) below, contracts, grants, and loans not exceeding $100,000 are exempt from these regulations. This exemption includes contracts for indefinite quantities or service as long as the purchaser has reason to believe that the amount to be

ordered in any year under such an agreement will not exceed $100,000.

(2) Assistance to abate, control, or prevent environmental pollution. Except as provided in §15.5(b) below, a contract, grant, or loan will be exempt from these regulations when the principal purpose of a contract, grant, or loan is to assist the facility or facilities to comply with any Federal, State, or local law, regulation, limitation, guideline, standard, or other requirement relating to the abatement, control or prevention of environmental pollution.

(b) The exemption in §15.5(a) do not apply where work under the contract is to be performed at a facility that has been placed on the List of Violating Facilities on the basis of a criminal conviction under section 113(c)(1) of the CAA or section 309(c) of the CWA and the person convicted owns, supervises, or leases the facility.

(c) Authority of Agency Head to Grant Exemptions (1) Individual exemptions. Where an Agency head determines that it is in the paramount interest of the United States to enter into, renew, or extend a contract, grant, or loan in connection with any facility that is on the List of Violating Facilities, he or she may exempt the agreement from the provisions of this regulation for a period of one year. The Agency head granting the exemption shall notify the Assistant Administrator of the exemption as soon, before or after granting the exemption, as may be practicable. The justification for such an exemption, or any renewal thereof, shall fully describe the purpose of the contract, grant, or loan and shall show why the paramount interest of the United States requires the exemption.

(2) Class exemptions. Where an agency head determines that it is in the paramount interest of the United States for the agency to enter into, extend, or renew any class of contracts, grants, or loans, he or she may exempt the class of agency contracts, grants, or loans from the provisions of this regulation by rule or regulation after consultation with the Administrator.

Subpart B-Procedures for Placing a Facility on the List of Violating Facilities

§15.10 Mandatory listing.

The Listing Official shall place a facility on the List of Violating Facilities if the facility which gave rise to the conviction is owned, leased, or supervised by any person who has been convicted of a criminal offense under section 113(c)(1) of the CAA or section 309(c) of the CWA. The mandatory listing is automatically effective upon conviction.

§ 15.11 Discretionary listing.

(a) The Listing Official shall place a facility on the List of Violating Facilities if there is a final agency action under §15.12(d), §15.13(c) §15.14(c), or § 15.14(d) which determines that there is a record of continuing or recurring noncompliance with clean air standards or clean water standards at the facility recommended for listing and that:

(1) A Federal court has convicted any person under section 113(c)(2) of the CAA if that person owns, leases, or supervises a facility recommended for listing;

(2) A State or local court has convicted any person of a criminal offense on the basis of noncompliance with clean air standards or clean water standards if that person owns, leases, or supervises a facility recommended for listing;

(3) A Federal, State, or local court has issued an injunction, order, judgment, decree (including consent decrees), or other form of civil ruling as a result of noncompliance with clean air or clean water standards at a facility recommended for listing;

(4) The facility has violated any administrative order issued under section 113(a), 113(d), 167, or 303 of the CAA, or section 309(a) of the CWA, if the violator owns, leases, or supervises a facility recommended for listing;

(5) EPA has issued to the facility a Notice of Noncompliance under section 120 of the CAA; or

(6) EPA has filed an enforcement action in Federal court under sections

113(b), 167, 204, 205, or 211 of the CAA or section 309(b) of the CWA due to noncompliance with clean air standards or clean water standards at the facility recommended for listing.

(b) A recommendation to list from a the recommending person initiates process for discretionary listing. A recommendation to list must contain:

(1) The name, address, and telephone number of the person filing the recommendation;

(2) A description of the facility alleged to be in noncompliance with clean air standards or clean water standards, including the name and address of the facility;

(3) A description of the alleged continuing or recurring noncompliance, including any available data and any other pertinent information supporting the allegation of noncompliance; and

(4) A description of the criminal, civil, or administrative action or conviction under §15.11 (a)(1), (a)(2), (a)(3), (a)(4), or (a)(5) which is pertinent to the facility and the alleged continuing or recurring noncompliance.

(c) The Listing Official shall review each recommendation to list to ensure that it complies with all of the requirements under § 15.11(b). If there is a deficiency in a recommendation the Listing Official must return it to the recommending person for correction. If there is no deficiency in the recommendation to list, the Listing Official shall transmit the recommendation to the Assistant Administrator. The Assistant Administrator, in his or her discretion, may:

(1) Decline to list, or

(2) Designate a Case Examiner in accordance with § 15.12(a), or

(3) Decide to list the facility in accordance with § 15.12(d).

(d) A recommending person may withdraw a recommendation list at any time before the conclusion of the listing proceeding. The recommending person shall withdraw the recommendation to list if the recommending person determines that the conditions which gave rise to the recommendation to list have been corrected or if the facility recommended for listing is on an EPAapproved plan for compliance, which will ensure that the conditions(s)

which gave rise to the recommendation to list will be corrected.

§ 15.12 Notice of filing of recommendation to list and opportunity to have a listing proceeding.

(a) The Listing Official shall send to the owner, operator or supervisor of the facility named in the recommendation to list written notice that a recommendation that the facility be placed on the List of Violating Facilities has been filed with the Listing Official and has been transmitted to the Assistant Administrator. Within thirty (30) calendar days of the receipt of the notice, any person who owns, leases, or supervises the facility may request the Assistant Administrator to designate a Case Examiner to hold a listing proceeding for the purpose of determining the propriety of the proposed listing.

(b) If a listing proceeding is requested, the Listing Official shall schedule a listing proceeding and notify in writing the recommending person and the person requesting the listing proceeding of the date, time, and location of the listing proceeding.

(c) The Listing Official shall respond to any requests from the recommending person and the person requesting the listing proceeding concerning the procedures for discretionary listing.

(d) If there is no timely request for a listing proceeding under § 15.12(a) above, the Listing Official will place the facility named in the recommendation to list on the List of Violating Facilities on the basis of discretionary listing if, upon reviewing the recommendation to list and any other available information, the Assistant Administrator determines that there is a record of continuing or recurring noncompliance with clean air standards or clean water standards at the facility recommended for listing and the requisite criminal, civil, or administrative enforcement action has been taken or criminal conviction under CAA section 113(a)(2) or under State law has occurred. Such a determination by the Assistant Administrator constitutes final agency action.

§ 15.13 Listing proceeding.

(a) No listing proceeding for mandatory listing. Mandatory listing is effective