§14.9 Approval and payment of claims.

(a) EPA's approval and payment of a claim is limited by the Act to $25,000. The EPA Claims Officer considers, adjusts, determines, compromises and settles all claims filed under this part. The decision of the EPA Claims Officer is final unless reconsideration under §14.10 is granted.

(b) The EPA Claims Officer will approve and pay claims filed for a deceased employee by persons specified in §14.5 in the following order:

(1) The spouse's claim.

(2) A child's claim.

(3) A parent's claim.

(4) A brother's or sister's claim.

§14.10 Procedures for reconsideration.

The EPA Claims Officer, at his discretion, may reconsider a decision when the employee establishes that an error was made in the computation of the award or that evidence or material facts were unavailable to the employee at the time of the filing of the claim and the failure to provide the information was not the result of the employee's lack of care. An employee seeking reconsideration of a decision must file, within 30 days of the date of the decision, a written request with the EPA Claims Officer for reconsideration. The request for reconsideration must specify, where applicable, the error, the evidence or material facts not previously considered by the EPA Claims Officer and the reason why the employee believes that the evidence or facts previously were not available.

$14.11 Principal types of allowable claims.

(a) General. A claim under this part is allowed for tangible personal property of a type and quantity that was reasonable and proper for the employee to possess under the circumstances at the time of the loss or damage. In evaluating whether a claim is allowable, the EPA Claims Officer may consider such factors as: The employee's use of the item; whether EPA generally is aware that such items are used by its employees; or whether the loss was caused by a failure of EPA to provide adequate protection against the loss.

(b) Examples of claims which are allowable. Claims which are ordinarily allowed include loss or damage which occurred:

(1) In a place officially designated for storage of property such as a warehouse, office, garage, or other storage place;

(2) In a marine, rail, aircraft, or other common disaster or natural disaster such as a fire, flood, or hurricane; (3) When the personal property was subjected to an extraordinary risk in the employee's performance of duty, such as in connection with an emergency situation, a civil disturbance, common or natural disaster, or during efforts to save government property or human life;

(4) When the property was used for the benefit of the government at the specific direction of a supervisor;

(5) When the property was money or other valuables deposited with an authorized government agent for safekeeping; and

(6) When the property was a vehicle which was subjected to an extraordinary risk in the employee's performance of duty and the use of the vehicle was at the specific direction of the employee's supervisor.

(c) Claims for articles of clothing. Claims for loss or damage to clothing and accessories worn by an employee may be allowed where:

(1) The damage or loss occurred during the employee's performance of official duty in an unusual or extraordinary risk situation;

(2) The loss or damage occurred during the employee's response to an emergency situation, to a natural disaster such as fire, flood, hurricane, or to a man-made disaster such as a chemical spill;

(3) The loss or damage was caused by faulty or defective equipment or furniture maintained by EPA; or

(4) The item was stolen even though the employee took reasonable precautions to protect the item from theft.

(d) Claims for loss or damage to household items. (1) Claims for damages to household goods may be allowed where:

(i) The loss or damages occurred while the goods were being shipped pur

suant to an EPA authorized change in duty station;

(ii) The employee filed a claim for the damages with the appropriate carrier; and

(iii) The employee substantiates that he/she has suffered a loss in excess of the amount paid by the carrier.

(2) Where a carrier has refused to make an award to an employee because of his/her failure to comply with the carrier's claims procedures, any award by EPA will be reduced by the maximum amount payable for the item by the carrier under its contract of shipment. Where an employee fails to notify the carrier of damages or loss, either at the time of delivery of the household goods or within a reasonable time after discovery, any award by EPA will be reduced by the amount of the carrier's maximum contractual liability for the damage or loss. The employee has the burden of proving his/ her entitlement to reimbursement from EPA for amounts in excess of that allowed by the carrier.

§14.12 Principal types of unallowable claims.

Claims that ordinarily will not be allowed include:

(a) Loss or damage totaling less than $25;

(b) Money or currency, except when deposited with an authorized government agency for safekeeping;

(c) Loss or damage to an item of extraordinary value or to an antique where the item was shipped with household goods, unless the employee filed a valid appraisal or authentication with the carrier prior to shipment of the item;

(d) Loss of bankbooks, checks, notes, stock certifications, money orders, or travelers checks;

(e) Property owned by the United States unless the employee is financially responsible for it to another government agency;

(f) Claims for loss or damage to a bicycle or a private motor vehicle, unless allowable under § 14.11(b)(6);

(g) Losses of insurers or subrogees; (h) Losses recoverable from insurers or carriers;

(i) Losses recovered or recoverable pursuant to contract;

(j) Claims for damage or loss caused, in whole or in part, by the negligent or wrongful acts of the employee or his/ her agent;

(k) Property used for personal business or profit;

(1) Theft from the possession of the employee unless the employee took reasonable precautions to protect the item from theft;

(m) Property acquired, possessed or transported in violation of law or regulations;

(n) Unserviceable property; or

(0) Damage or loss to an item during shipment of household goods where the damage or loss was caused by the employee's negligence in packing the item.

§ 14.13 Items fraudulently claimed.

Where the EPA Claims Officer determines that an employee has intentionally misrepresented the cost, condition, cost of repair or a material fact concerning a claim, he/she may, at his discretion, deny the entire amount claimed for the item. Further, where 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

Subpart C-Procedures for Removing a Facility From the List of Violating Facilities

15.20 Removal of a mandatory listing. 15.21 Removal of a discretionary listing. 15.22 Request for removal from the list of violating facilities.

15.23 Request for removal hearing.

15.24 Removal hearing.

15.25 Request for review of the decision of the Debarring Official.

15.26 Effective date of removal. 15.27 Notice of removal.

Subpart D-Agency Coordination

15.30 Agency responsibilities. 15.31 Agency regulations.

15.32 Contacting the Debarring Official. 15.33 Investigation by the Debarring Official prior to awarding a contract, grant, or loan.

15.34 Referral by the Assistant Administrator to the Department of Justice.

Subpart E-Miscellaneous

15.40 Distribution of the List of Violating Facilities. 15.41 Reports.

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 Violating 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.

The authority and responsibilities assigned to the Administrator of the Environmental Protection Agency under EO 11738 have been delegated to the Assistant Administrator for Administration and Resources Management. Such authority and responsibilities may be redelegated, except that the delegated authority to issue or amend rules and regulations may not be redelegated.

[59 FR 50692, Oct. 5, 1994]

§ 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 Government 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 Administration and Resources Management, United States Environmental Protection Agency, or his or her designee.

Borrower means any recipient of a loan as defined below.

Case Examiner means a hearing examiner designated by the Debarring Official.

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.

Debarring Official means the Director, Office of Grants and Debarment, or his or her designee.

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.

Listing Official means the EPA official or officials designated by the Debarring official to carry out administrative functions pertaining to the listing or removal of a facility under this regulation.

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 the Director, Suspension and Debarment Division or his or her designated debarment counsel; a Regional Administrator; the Assistant Administrator for Air and Radiation; the Assistant Ad

ministrator for Water; 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.

[50 FR 36191, Sept. 5, 1985, as amended at 59 FR 50692, Oct. 5, 1994]

§ 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