(4) Agreement by the contractor that he will include or cause to be included the criteria and requirements in paragraphs (c) (1) through (4) of this section in every nonexempt subcontract and requiring that the contractor will take such action as the Government may direct as a means of enforcing such provisions.

(d) Grant and loan provisions. To carry out the purposes of the Air and Water Acts, the Order, and this part, agency grant and loan regulations shall be amended as necessary to incorporate the requirements set forth in paragraphs (1) through (4) of § 15.4(c) of this part, with respect to nonexempt transactions.

[40 FR 17124, Apr. 16, 1975, as amended at 40 FR 18437, Apr. 28, 1975; 44 FR 6911, Feb. 5, 1979]

§ 15.5 Exemptions.

(a) Exempted transactions—(1) Transactions $100,000 and under. Contracts, subcontracts, grants, subgrants, loans, and subloans not exceeding $100,000 are exempt from this part.

(2) Contracts and subcontracts for indefinite quantities. With respect to contracts and subcontracts for indefinite quantities (including but not limited to time and material contracts, requirements contracts, and basic ordering agreements), this part shall be applicable unless the purchaser has reason to believe that the amount to be ordered in any year under such contract will not exceed $100,000.

(3) Assistance to abate, control, or prevent environmental pollution. Any grant, subgrant, loan, or subloan, the principal purpose of which is to assist a 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 is exempt from this part.

(4) Exclusion. The foregoing exemptions shall not apply to a proposed contractor whose facility is listed on the basis of § 15.20(a)(1) (i) and (iv). Utilization of such a facility through the award of a Federal contract is barred by section 306(a) of the Air Act and section 508(a) of the Water Act where a conviction has been obtained

pursuant to section 113(c)(1) of the Air Act and section 309(c) of the Water Act.

(b) Authority of heads of agencies. Where a head of an agency determines that the paramount interest of the United States so requires, he may exempt any individual contract, subcontract, grant, subgrant, loan, or subloan for a period of one year, and by rule or regulation any class of contracts, grants, or loans. In the case of an individual exemption, the head of the agency granting the exemption shall notify the Assistant Administrator as soon before or after granting the exemption as practicable. The justification for such an exemption or any renewal thereof shall fully describe the purpose of the contract, grant, or loan and shall indicate the manner in which the paramount interest of the United States requires that the exemption be made.

(c) Facilities located outside the United States. This part shall not apply to the use of facilities located outside the United States.

[40 FR 17124, Apr. 16, 1975; 40 FR 18430, Apr. 28, 1975, as amended at 44 FR 6911, Feb. 5, 1979]

Subpart B-Remedies

§ 15.20 List of Violating Facilities.

(a) Listing of facilities. Sections 1, 2, 4, 5, and 7 of the Order, section 306 of the Air Act, and section 508 of the Water Act require the Administrator to establish procedures which will identify for Federal agencies those facilities giving rise to a criminal conviction under the Air and Water Acts and which will establish sanctions and penalties necessary to assure that contracts, grants, and loans are not awarded to applicants whose facilities are found to be in noncompliance with clean air and water standards. The Assistant Administrator shall maintain the List of Violating Facilities in accordance with the following procedures:

(1) Basis for consideration of listing. Federal, State, or local criminal convictions, civil adjudications, or administrative findings of noncompliance may serve as the basis for considera

tion of listing facilities. However, the listing of a facility based on a State or local civil adjudication or administrative finding shall not be considered unless the Governor of the State has referred the applicant, contractor, grantee, or borrower whose facility has given rise to such adjudication or finding to the Assistant Administrator in accordance with § 15.23. The following Federal, State, and local determinations may serve as bases for listing: (i) Facilities which have given rise to a conviction under section 113(c)(1) of the Air Act.

(ii) Facilities which have given rise to any injunction, order, judgment, decree, or other form of civil ruling by a Federal, State, or local court issued as a result of noncompliance with clean air standards, or facilities which have given rise to a conviction in a State or local court for noncompliance with clean air standards.

(iii) Facilities not in compliance with an order under section 113(a) of the Air Act, or which have given rise to the initiation of court action under section 113(b) of the Air Act, or have been subjected to equivalent State or local proceedings to enforce clean air standards.

(iv) Facilities which have given rise to a conviction under section 309(c) of the Water Act.

(v) Facilities which have given rise to any injunction, order, judgment, decree, or other form of civil ruling by a Federal, State, or local court issued as a result of noncompliance with clean water standards, or facilities which have given rise to a conviction in a State or local court for noncompliance with clean water standards.

(vi) Facilities not in compliance with an order under section 309(a) of the Water Act, or which have given rise to the initiation of court action under section 309(b) of the Water Act, or have been subjected to equivalent State or local proceedings to enforce clean water standards.

(2) Listing proceedings. No facility shall be listed until there has been notification to the owner, and where appropriate, the operator, by the Assistant Administrator of his intent to place the facility on the List and the basis therefor, and the rerepresenta

tives of the facility have been afforded an opportunity to confer with the Assistant Administrator and present orally or in writing, and with assistance of counsel, data or information relating to the proposed placement of the facility on the List. Prior to listing on the basis of § 15.20(a)(1) (ii), (iii), (v), or (vi) the Assistant Administrator must determine that there is adequate evidence of continuing or recurring noncompliance with clean air or water standards at the facility. The Assistant Administrator's determination to list shall be in writing and shall summarize the basis for his action.

(3) The List. Upon carrying out the aforesaid requirements, the Assistant Administrator may list a facility. The list shall be distributed periodically to all agencies and published in the FEDERAL REGISTER. The List shall contain as a minimum the name of each person whose noncomplying facility has given rise to the listing, the name of such facility, the basis for the listing, and the date for each listing.

(4) Effective date. The Assistant Administrator shall initiate the maintenance of the List of Violating Facilities where such listing is determined based on § 15.20(a)(1) (i) or (iv) effective immediately. The Assistant Administrator shall initiate the maintenance of the List of Violating Facilities where such listing is determined based on § 15.20(a)(1) (ii), (iii), (v), (vi) effective July 1, 1975.

(b) Prohibition of award to listed facilities. No agency shall enter into, renew, or extend any nonexempt contract, subcontract, grant, subgrant, loan, or subloan where a facility listed would be utilized for the contract, subcontract, grant, subgrant, loan, or subloan.

(c) Removal of facility from List. If a conviction, order, judgment, decree, other form of civil ruling, or finding which has constituted the basis for consideration of listing a facility is reversed or otherwise modified to remove such basis, the facility shall be removed promptly from such listing by the Assistant Administrator effective upon receipt of notification of the reversal, modification, or request. Requests for removal of facilities from the List for any other basis including a

request from a Governor shall be addressed to the Assistant Administrator. Such request shall be in writing and must contain appropriate evidence that the condition which gave rise to the listing has been corrected. Alternatively, for facilities listed under § 15.20(a)(1) (ii), (iii), (v), and (vi) above, the written request to de-list may be based upon an approved plan of compliance which will ensure the condition which gave rise to the listing will be corrected. Facilities listed on the basis of § 15.20(a)(1) (iii) and (vi) shall be removed from the List one year after the initial date of the listing unless the Assistant Administrator determines theretofore that a basis for listing under § 15.20(a)(1) (i), (ii), (iv), or (v) has been established. In the event the request for removal is denied, a hearing pursuant to § 15.21 shall be granted by the Assistant Administrator, if requested within ten (10) days of receipt of a notice of denial.

[40 FR 17124, Apr. 16, 1975; 40 FR 18340, Apr. 28, 1975, as amended at 44 FR 6911, Feb. 5, 1979]

§ 15.21

Hearings. Hearings

(a) held pursuant to § 15.20(c) shall be conducted by a hearing officer designated by the Administrator. Each party shall have the right of counsel and a fair opportunity to present evidence and argument and to cross-examine. The agency or official responsible for clean air or water standards enforcement with respect to the listed facility will be permitted to participate in the hearing. The hearing officer shall base his decision solely upon the record before him.

(b) The decision of the hearing officer shall be final unless within twenty (20) days from the date of receipt of the decision the party adversely affected requests in writing a review by the Administrator.

§ 15.22 Public participation.

(a) Persons who wish to bring an alleged failure of compliance with clean air or water standards under this part to the attention of the Government should file a statement in writing with the Assistant Administrator, Office of Federal Activities, U.S. Environmental

Protection Agency, Washington, D.C. 20460.

(b) The statement should include the name, address, and telephone number of the person responsible for its filing, the name and address or other accurate description of the facility allegedly in noncompliance, a description of the noncompliance, with any available accompanying data considered to show that the noncompliance has occurred, and any other pertinent information which will assist in the investigation and resolution of the reported noncompliance. The statement must be signed by the person responsible for the filing or his authorized representative.

§ 15.23 Agency participation.

(a) Federal agency participation. Pursuant to § 15.4 (c) and (d), applicants must indicate whether a facility to be utilized in the performance of any nonexempt contract, grant, or loan has been identified by the Assistant Administrator as under consideration for listing. Federal contracting officers or awarding officials must determine whether any facility to be utilized in the performance of a nonexempt contract, grant, or loan appears on the List distributed by the Assistant Administrator under § 15.20. If such facility has been identified by the Assistant Administrator but the facility does not appear on the List, the contracting officer or awarding officials shall promptly notify the Assistant Administrator. In accordance with § 15.24, the Assistant Administrator may request that the award of the contract, grant, or loan be withheld for a period not to exceed fifteen (15) working days pending completion of an appropriate investigation.

(b) State participation. If a Governor determines that a facility is in continuing or recurring noncompliance with clean air or water standards, the Governor may notify the Assistant Administrator. The Assistant Administrator shall take the necessary steps, under § 15.20, to determine whether listing shall occur.

[40 FR 17124, Apr. 16, 1975, as amended at 44 FR 6911, Feb. 5, 1979]

§ 15.24 Investigation.

(a) When pursuant to § 15.23, Federal contracting officers or awarding officials notify the Assistant Administrator that a facility contemplated to be utilized in the performance of a contract, grant, or loan has been identified by EPA as under consideration for listing, the Assistant Administrator after consultation with the agency whose proposed contract, grant, or loan is involved, may request that the award of the contract, grant, or loan be withheld for a period not to exceed fifteen (15) working days effective the date the Assistant Administrator, as well as the interested Federal agency, is notified of the existence of such information and the initiation of the investigation. The agency shall withhold such award except when it is determined that the delay is likely to prejudice the agency's programs or otherwise seriously disadvantage the Government. Prompt notice shall be given to the Assistant Administrator in any case where such determination to award has been made.

(b) The Assistant Administrator shall promptly inform the agency whose contract, grant, or loan is involved of the findings, dispositions, or actions resulting from the investigation. Where the information causing the investigation was presented by a private individual or Governor, that individual or Governor shall also be promptly notified.

[40 FR 17124, Apr. 16, 1975, as amended at 44 FR 6911, Feb. 5, 1979]

§ 15.25 Referral to the Justice Department.

The Administrator may recommend that appropriate legal proceedings or other action be taken in reference to

the requirements set forth in the regulations contained in this part. Referrals of any matters arising under such regulations to the Department of Justice shall be made only by the Administrator or with his express approval.

Subpart C-Ancillary Matters

§ 15.40 Reports.

(a) Agency reports. The head of each agency shall ensure that the Administrator is informed of each exemption granted under § 15.5(b) during the preceding fiscal year annually before August 1.

(b) EPA reports. (1) The Administrator will annually report to the President on measures taken toward implementation of section 306 of the Air Act, section 508 of the Water Act, the Order, and regulations in this part, including but not limited to the progress and problems associated with such implementation.

(2) The Administrator will annually notify the President and the Congress of all exemptions granted or in effect under this part during the preceding year.

§ 15.41 Delegation of Authority by the Assistant Administrator.

The Assistant Administrator is authorized to redelegate the authority conferred upon him by this part.

[40 FR 17124, Apr. 16, 1975, as amended at 44 FR 6911, Feb. 5, 1979]

APPENDIX A

Statement of Procedures for the placement of facilities on the U.S. Environmental Protection Agency List of Violating Facilities.

A. PURPOSE

This statement describes the internal procedures used by the Environmental Protection Agency relating to the listing of facilities pursuant to 40 CFR 15.20(a) and § 15.20(b). The statement is intended as a supplement to that regulation.

B. RECOMMENDATIONS FOR LISTING

Recommendations of facilities for placement on the list may come from any of these individuals:

1. Regional Administrators (authority for which may be delegated to Regional Enforcement Division Directors);

2. The Deputy Assistant Administrator for Water Enforcement or for General Enforcement;

3. Governors (see State participation, 40 CFR 15.23(b)); or

4. Citizens (see public participation, 40 CFR 15.22).

C. LISTING OFFICIAL

A Listing Official shall be designated by the Assistant Administrator for Enforcement to receive recommendations to list. The Listing Official shall review the recommendations and may return the recommendation to the recommending official for deficiencies or for more information; otherwise he shall place the case on the Listing Docket.

Cases in the Listing Docket will be scheduled for Listing Proceedings and are assigned Case Examiners by the Assistant Administrator for Enforcement. The Listing Official will prepare a Notice of Proposed Listing for each case in the Docket, and will answer any requests from the facility or the recommending official prior to the Listing Proceeding. At any point prior to a Listing decision, the Recommending Official may request the Listing Official to withdraw the Notice of Proposed Listing due to a change in circumstances, e.g., settlement of the en

forcement action.

D. CASE EXAMINER

The Listing Proceeding (40 CFR 15.20(a)(3)) will be chaired by the Case Examiner. A Case Examiner will be appointed for each case on the docket by the Assistant Administrator for Enforcement. The Case Examiner will be an EPA official familiar with pollution control in the media in question, subject to the following restraints:

1. He or she may not be the Listing Official;

2. He or she may not be the Recommending Official or anyone subordinate to the recommending official;

3. He or she may not have been closely involved in the preparation of the enforcement case.

E. LISTING REVIEW PANEL

The Listing Review Panel shall consist of the Assistant Administrator for Enforcement, who will serve as Chairman, the Assistant Administrator for Planning and Management, the General Counsel, and a representative from the Office of the Deputy Administrator who shall serve as a non-voting member. The panel members or their designees should attend and participate in the Listing Proceeding. No later than thirty working days after the close of

§ 16.1 Purpose and scope.

(a) This part sets forth the Environmental Protection Agency procedures under the Privacy Act of 1974 as required by 5 U.S.C. 552a(f).

(b) These procedures describe how an individual may request notification of whether EPA maintains a record pertaining to him or her in any of its systems of records, request access to the record or to an accounting of its disclosure, request that the record be amended or corrected, and appeal an initial adverse determination concerning any such request.

(c) These procedures apply only to requests by individuals and only to records maintained by EPA, excluding those systems specifically exempt under §§ 16.13 and 16.14 and those determined as government-wide and pub