10/08/87
Contractor Listing Protocols>
Includes Attachments WW, XX & YY
CONTRACTOR LISTING PROTOCOLS
Contractor Listing Staff
LEPB - OCAPO - OECM
October 8, 1987
LIST OF ABBREVIATIONS
The following abbreviations are used in the Contractor Listing
Protocols.
AA Assistant Administrator for
Enforcement and Compliance Monitoring
AEC (s) Associate Enforcement Counsel for Air
or Water, or Both
CAA Clean Air Act
CE Case Examiner
CFR Code of Federal Regulations
CWA Clean Water Act
DAA-OECM-Civil Deputy Assistant Administrator for
Enforcement and Compliance Monitoring
- Civil
DAA-OECM-Criminal Deputy assistant Administrator for
Enforcement and Compliance Monitoring
- Criminal
ECS-DOJ Environmental Crimes Section of the
Department of Justice
EPA Environmental Protection Agency
GSA General Services Administration
LEPB Legal Enforcement Policy Branch
List The EPA List of Violating Facilities
LO Listing Official
NEIC National Enforcement Investigations
Center
OCAPO Office of Compliance Analysis and
Program Operations
OCEC Office of Criminal Enforcement
Counsel
OGC Office of General Counsel
OPA Office of Public Affairs
ORC Office of Regional Counsel
RA Regional Administrator
CONTRACTOR LISTING PROTOCOLS */
*/ The policies and procedures established in this document are intended
solely as guidance for government personnel. They are not intended, and
cannot be relied upon, to create any rights, substantive or procedural,
enforceable by any party in litigation with the United States. EPA
reserves the right to act at variance with these policies and procedures
and to change them at any time without public notice.
I. INTRODUCTION
This document, the Contractor Listing Protocols, sets forth the
procedures that the Listing Official ( LO ), or his or her designee, will
follow in carrying out the contractor listing regulations, 40 CFR Part 15.
It addresses both listing and removal procedures and identifies the nature
of the assistance that will be required from all EPA offices supporting the
listing effort.
The protocols are divided into five major sections. This section, the
Introduction, explains the format of the Protocols and describes how to use
them. Section II describes the statutory and regulatory authorities
governing the contractor listing program. Section III contains a detailed
description of the procedures followed by the LO in processing mandatory
listing actions and discretionary recommendations to list. Similarly,
Section IV provides a detailed description of the procedures the LO follows
when processing automatic removals and requests for removal from the EPA
List of Violating Facilities ( the List ). Sections III and IV also
describe the essential roles of EPA staff in the Region and at Headquarters
in carrying out the listing program. Finally, Section V sets forth the
requirement that the LO publish the List in the Federal Register.
In addition to describing in detail the procedures to be followed when
processing listing and removal actions, the Protocols contain over 45 model
letters and memoranda which can be used as guidance when drafting the
documents called for under the protocols. The attachments also include the
federal regulations governing the listing program ( Attachment ZZ ) and
three policy documents for the listing program ( Attachments WW - YY ).
Although this document provides detailed procedures for processing
listing and removal actions, it does not attempt to prescribe the
circumstances under which listing should be used as an enforcement tool.
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II. BACKGROUND
The Clean Air Act ( CAA ), Section 306, and the Clean Water Act ( CWA ),
Section 508, as implemented by Executive Order 11738 and 40 CFR Part 15
( Attachment ZZ ), authorize EPA to prohibit facilities from obtaining
federal government contracts, or assistance in the form of grants or loans
( including subcontracts, subgrants and subloans ), as a consequence of
certain criminal or civil violations of the CAA or CWA. Facilities
prohibited from receiving federal contracts or assistance under this
authority are placed on the Environmental Protection Agency's ( EPA ) List
of Violating Facilities ( the List ). The statutes, their legislative
histories, and the regulations identify two purposes for the listing
program: to protect the government's proprietary interest and ensure
compliance with the Clean Air Act and Clean Water Act.
Facilities owned, leased or operated by persons 1/ found guilty of
certain criminal violations are subject to automatic ( i.e., mandatory )
listing upon conviction.
1/ Throughout this document references to "persons" are understood to
include all entities identified in the definition of "person" in 40 CFR
Section 15.4.
Facilities are subject to discretionary listing as a result of certain civil
and criminal violations of the CAA or CWA after following procedures
contained in the regulations. Although CAA and CWA violations which have
been the subject of criminal or civil enforcement activities are the basis
for listing a facility, listing is an administrative function which is
independent of the underlying enforcement action. Listing provides EPA with
an effective administrative tool to obtain compliance with the CAA and CWA
where an administrative or judicial action identified in 40 CFR Section
15.11(a)(1) - (6) has already been initiated against a facility or its
owner, operator or supervisor has been convicted of an offense under the
Clean Air Act or Clean Water Act.
III. LISTING PROCEDURES
A. Computation of Time. Unless otherwise stated, in computing any
period of time prescribed or allowed in the protocols, the day of
the event from which the designated period begins to run shall not
be included. Saturdays, Sundays and Federal legal holidays shall
be included. When a stated time period expires on a Saturday,
Sunday or legal holiday, the stated time period shall be extended
to include the next business day. Failure to take action in a
timely fashion may result in the loss of rights, termination of a
listing or removal action, or the decision to proceed with the
listing or removal action without the participation of the
nonresponding party.
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B. Mandatory Listing. The facility that is the source of the Clean
Air Act or Clean Water Act violations is automatically placed on
the List if it is owned, leased or supervised by a person convicted
under Section 113(c)(1) of CAA or Section 309(c) of CWA for those
violations, Section 15.10. 2/
2/ Throughout this document references to the regulations are to 40 CFR
Part 15 unless otherwise indicated. Thus 40 CFR Section 15.10 will
appear as Section 15.10.
Even though a facility is automatically listed if it is the source
of a Clean Air Act or Clean Water Act violation that leads to the
criminal conviction of the owner, operator or supervisor of the
facility, the LO follows the steps listed below to process the
mandatory listing action.
1. Maintain File of Pending Criminal Cases. The Legal
Enforcement Policy Branch ( LEPB ), with assistance from the
Office of Criminal Enforcement Counsel ( OCEC ), develops and
maintains a compilation of the indictments, informations and
other charging documents that evidence potential criminal
charges that may lead to mandatory listing of a facility.
2. Obtain Notice of Convictions. It is the responsibility of
OCEC to notify the LO of criminal convictions, Section
15.13(a), and supply copies of the informations, indictments,
or other charging documents and judgments of conviction to the
LO. Notice of the conviction should be sent to the LO prior
to sentencing, even though the judgement of conviction may not
be filed until some time later.
3. Review the Convictions. The LO determines whether listing is
warranted under the regulations by reviewing the documents
associated with the conviction to ensure that: (a) the
conviction occurred under Section 113(c)(1) of the CAA or
Section 309(c) of the CWA, Section 15.10; and (b) the facility
to be listed was owned, leased or supervised by the person
convicted under Section 113(c)(1) of the CAA or Section 309(c)
of the CWA, Section 15.10.
These determinations may require the LO to review the
following documentation, obtained with the assistance of OCEC:
(1) documentation of the charges filed against the defendant,
as evidenced by the signed and dated indictment, information,
or other charging document ( original and as finally
amended ); (2) documentation of the circumstances of the
conviction, as evidenced
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by court-filed documents such as the signed and dated final
plea agreements, dismissals of counts, and sentencing reports
and memoranda; (3) documentation that the final conviction or
guilty plea has been entered by court; (4) documentation that
the sentence has been imposed, as evidenced by such court
documents as the signed and dated final Judgement and
Commitment / Probation Order; and (5) documentation evidencing
the underlying technical data, evidence of violation or
corrective action, or other relevant information.
4. Notify facility and Public of Listing. Once the LO
determines that a facility meets the criteria for
mandatory listing, the LO:
a. Places the facility on the List as of the date of
conviction.
b. Assigns a docket number to the facility and places
the case on the listing docket;
c. Notifies: the Assistant Administrator for
Enforcement and Compliance Monitoring ( AA ); the
Director, OCAPO; the Deputy Assistant Administrator
for Enforcement and Compliance Monitoring-Civil
( DAA-OECM-Civil ); the Deputy Assistant
Administrator for Enforcement and compliance
Monitoring-Criminal ( DAA-OECM-Criminal ); the
owner, operator or supervisor of the facility; the
Associate Enforcement Counsel for Air, or Water, or
both ( AEC(s) ); the Regional Administrator, Office
of Regional Counsel and regional program office; the
Chief Counsel, Environmental Crimes Section of the
Department of Justice ( ECS-DOJ ); the Director,
Investigative Unit, Office of Criminal
Investigations, National Enforcement Investigations
Center ( NEIC ); and the Assistant United States
Attorney in the criminal action; ( Attachment A ),
Section 15.16(a);
d. Publishes a notice in the Federal Register
( Attachment B ), Section 15.16(c);
e. Notifies the General Services Administration ( GSA )
that the facility is to be added to GSA's
Consolidated List of Debarred, Suspended, and
Ineligible Contractors ( Attachment C );
f. Notifies all federal agencies with major assistance
responsibilities, identified on the Assistance
Agencies List ( Attachment D ), that the facility is
ineligible for assistance programs ( Attachment E );
and
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g. Provides the EPA Office of Public Affairs ( OPA )
with the information necessary to prepare a press
release or press advisory 3/ ( Attachment F ).
3/ Use of Press Releases. The LO works with the regional press office and
EPA Office of Public Affairs to see that press releases concerning
listing actions are issued, as appropriate, to the national press, local
media in the area where the violations occurred, and the trade press of
the affected industry. ( See Guidance on Implementing the Discretionary
Contractor Listing Program, dated November 26, 1986, GM-53. )
C. Discretionary Listing. The discretionary listing process begins
with the filing of a recommendation to list. A facility will be
listed under the discretionary listing process if it is determined
that the facility has a record of continuing or recurring
noncompliance with clean air or clean water standards and has been
the subject of one of the enforcement activities described in
Section 15.11(a)(1)-(6). See Section III of the Guidance on
Implementing the Discretionary Contractor Listing Program, dated
November 26, 1986, GM-53, for guidance on selecting discretionary
listing cases.
A recommendation to list may be submitted by a "recommending
person," defined in Section 15.4 as the "Regional Administrator,
the Associate Enforcement Counsel for Air or the Associate
Enforcement Counsel for Water or their successors, the Assistant
Administrator for Air and Radiation or the Assistant Administrator
for Water or their successors, a Governor, or a member of the
public." The Regions will have primary responsibility for
selecting cases for EPA-initiated listing actions. The Associate
Enforcement Counsels for Air and Water ( AEC(s) ) and the Assistant
Administrators for Air and Water will rarely initiate listing
recommendations.
Each recommendation to list will be processed by a team
composed of representatives from the Office of Regional Counsel,
the regional program office, the Associate Enforcement Counsel
( AEC ) for Air or Water or both, and the LO. The regional
representatives to the team will act as advocates for the Region's
position on the recommendation to list. The representative(s) of
the AEC(s) will act as counsel to both the Region and the LO. The
adjudicative function will be represented by the LO's designee to
the team. Each team member will be responsible for ensuring that
his or her office completes its assignments under the Protocols in
a timely fashion and that all necessary reviews by policy level
officials within his or her office are obtained.
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Under the regulations, a recommending person may withdraw a
recommendation to list at any time before the conclusion of the
listing proceeding. A recommending person is obligated to withdraw
the recommendation to list if he or she determines that the
conditions which gave rise to the recommendation to list have been
corrected or the facility is on an EPA-approved plan for compliance
which will ensure that the conditions that gave rise to the
recommendation to list will be corrected, Section 15.11(d) ( see
also paragraph III.C.7, page 13 ). Thus, as a practical matter, if
the facility fully corrects the condition which is the basis for
the listing action and the recommending person withdraws the
recommendation to list, the listing process is terminated. The
steps for processing a discretionary listing action are set forth
below.
1. LO Receives Recommendation to List. The discretionary listing
process begins when the LO receives a recommendation to list,
Section 15.11(b). It is anticipated that most recommendations
will be prepared by the Regions and they will have lead
responsibility for preparing EPA-initiated recommendations.
The November 26, 1986, Guidance on Implementing the
discretionary Contractor Listing Program, GM-53, includes
model discretionary listing recommendations based on both
administrative and judicial enforcement actions. The Regions
will also act as the Agency's primary contact for processing
State or citizen initiated listing recommendations.
2. Review Recommendation. As soon as a recommendation to list is
received, the LO transmits a copy to the appropriate AEC(s),
and, provided the Region did not submit the recommendation to
list, the LO transmits the recommendation to list to the
Regional Administrator ( RA ), Office of Regional Counsel
( ORC ), and regional program office to review and submit
comments on the recommendation to the LO within 10 days
( Attachment G ).
During the same period, the LO reviews the recommendation
to list, Section 15.11(c), to ensure that is contains: (a)
the name, address and telephone number of the person filing
the recommendation, Section 15.11(b)(1); (b) a description of
the facility, including its name and address, Section
15.11(b)(2); (c) a description of the alleged continuing or
recurring noncompliance and supporting data, Section
15.11(b)(3); and (d) a description of the criminal, civil or
administrative action or conviction which is pertinent to the
facility and the alleged continuing or recurring violations,
Section 15.11(b)(4).
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If, after reviewing the recommendation to list and the
comments on the recommendation to list, the LO determines that
additional documentation is needed, the LO returns the
recommendation to the recommending person identifying in
writing the specific information required ( Attachment H ).
Resubmitted recommendations must processed according to the
procedures for processing an original recommendation as set
forth in paragraph III.C ( page 5 ).
3. LO Briefs AA on Listing Recommendation. When the LO is
satisfied that the recommendation to list meets the
requirements of the regulations, the LO does the following:
a. The LO Dockets the Case. The LO assigns a docket number
to the facility and places the case on the listing
docket.
b. The LO Prepares a Briefing Memorandum. The LO prepares a
briefing memorandum ( Attachment J ) and transmits it and
a copy of the recommendation to list to the AA. The
briefing memorandum should: (i) summarize the status of
the listing recommendation; (ii) review for the AA the
pros and cons of proceeding with the listing action at
this point based on the comments received from the Region
and the AEC(s); and (iii) offer the AA the opportunity to
have an oral briefing on the listing recommendation. If
an oral briefing is requested, the LO schedules the
briefing and arranges for representatives of the AEC(s)
and OCAPO to be present and offers the RA, ORC and
regional program office an opportunity to be present in
person or by telephone. At the briefing, staff will
advise the AA of the basis for the recommendation to
list.
4. AA Declines to List. If, after being briefed on the listing
recommendation, the AA decides to decline the recommendation
to list, the LO does the following:
a. The LO Prepares a Statement of Reasons. The LO prepares
a brief statement ( Attachment K ) for the AA's signature
explaining the AA's reasons for the decision not to
proceed with the listing action. This statement will be
included in the record of the listing action and provide
to the recommending person and the owner, operator or
supervisor of the facility. Consequently, the statement
should exclude all information which the Agency would
seek to withhold under the Enforcement Document Release
Guidelines, GM-43, dated September 16, 1985.
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b. The LO Submits the Statement for Headquarters Review.
The LO submits the draft statement for review by (1) the
AEC(s) for Air, Water or both; (2) the Director, OCAPO;
and (3) the DAA-OECM-Civil and, to prevent conflict with
potential criminal actions, (4) the DAA-OECM-Criminal.
c. The LO Transmits the Statement to the AA to Sign. At the
conclusion of the review by appropriate Headquarters
staff, the LO transmits the statement to the AA for his
signature.
d. The LO Notifies Owner. Once the AA has approved and
signed the statement of reasons, the LO notifies the
owner, operator or supervisor of the facility that a
recommendation to list the facility has been filed
( Attachment L ) and encloses a copy of the
recommendation to list and the statement of the reasons
for not proceeding with the recommendation to list
( Attachment K ) with the notice letter. The LO also
sends a copy of the notice letter and enclosures to the
recommending person.
5. AA Decides to Proceed with Proposed Listing, LO Notifies
Facility and Prepares Draft Determination. After the LO has
briefed the AA on the recommendation to list and the AA has
decided to proceed with the recommendation to list, the LO
does the following:
a. The LO Notifies Owner. The LO notifies the owner,
operator or supervisor of the facility that a
recommendation to list the facility has been filed and
encloses a copy of the recommendation to list with the
notice letter. The notice will also advise the owner,
operator or supervisor that he or she may request a
listing proceeding before a Case Examiner ( CE ) to
determine the propriety of the proposed listing
( Attachment M ), Section 15.12(a). A copy of this
notice is sent to the Listing Case Team and the
recommending person.
b. The LO Transmits the Recommendation to the Region. The
LO prepares a transmittal memorandum ( Attachment N ),
and transmits the recommendation to list and any comments
received from the AA, AEC, RA and regional program office
to ORC requesting that ORC prepare and return to the LO
within 15 days a detailed summary of the documentation
regarding the recommendation to list ( Attachment O ),
and copies of any documents necessary for the LO to
prepare a draft determination. Unless the Regional
Administrator or Deputy Regional Administrator
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have previously reviewed the recommendation to list, one
of these officials must acknowledge in writing that he or
she has reviewed the recommendation to list and has
attached any comments to recommendation.
c. The LO Drafts the Determination. Upon receipt of the
recommendation to list and summary of documentation
regarding the recommendation to list from the Region and
after the 30-day period for requesting a listing
proceeding has expired, the LO drafts a determination for
the AA's signature ( Attachment P ), and revises the
summary of documentation ( Attachment O ) to include any
materials available at Headquarters.
d. The LO Submits the Draft Determination for Headquarters
Review and Comment. Once the draft determination to list
has been prepared, the LO acknowledges that he or she has
reviewed the draft determination. The draft
determination ( Attachment P ) is then transmitted for
review and comment, along with the summary of
documentation ( Attachment O ), to: (1) the AEC(s) for
Air, Water or both; (2) the Director, OCAPO; and (3) the
DAA-OECM-Civil and the DAA-OECM-Criminal.
6. Final Agency Action Taken on the Recommendation to List.
After the LO has notified the facility that a recommendation
to list has been filed and forwarded to the AA for decision,
final Agency action on the recommendation to list will occur
as a result of one of the following processes.
a. AA Decides ( Listing Proceeding Not Held ). At any point
before a listing proceeding is held, the AA may, in his
or her discretion, decline to list the facility, Section
15.11(c). If a facility does not request a listing
proceeding within 30 days of receiving notice that a
recommendation to list has been filed, the AA must decide
whether to list the facility. The AA's determination on
the recommendation to list is final Agency action,
Section 15.12(d).
After all of the EPA personnel identified in
paragraph III.C.5.d have reviewed the draft determination
and commented on it, the LO prepares a transmittal
memorandum ( Attachment Q ), and sends to the AA a draft
determination ( Attachment P ), any comments from the
AEC(s) or the Region, the summary of supporting
documentation ( Attachment O ), and a one-page briefing
memorandum
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( Attachment R ) that summarizes: (i) the history of the
case; (ii) the status of the case; (iii) the reasons for
the recommended determination, (iv) whether the RA, ORC
and regional program office have expressed comments in
agreement with the draft determination; and (v) any
special problems or considerations.
If an oral briefing is requested, the LO schedules
the briefing, arranges for representatives of the AEC(s)
and OCAPO to be present, and offers the RA, DRA, ORC and
regional program office an opportunity to be present at
the briefing in person or by telephone.
Based on the AA's decision on the recommendation to
list, the LO does the following:
(1) AA Decides to List. If the AA decides to list, his
or her decision is final Agency action on the
recommendation to list and the LO follows the steps
set forth in the Listing Official's Discretionary
Listing Checklist found in Table One on page 27.
(2) AA Declines to List. If the AA decides not to list,
the LO notifies the recommending person, the owner,
operator or supervisor of the facility, the AEC(s)
and the RA, ORC and regional program office that the
recommendation to list has been declined
( Attachment U ). The AA's decision not to list is
final Agency action on the listing recommendation.
b. Listing Proceeding Requested. If the owner, operator or
supervisor of the facility requests a listing proceeding
within 30 days of receiving notice that a recommendation
to list has been filed, the LO does the following:
(1) AA Designates a Case Examiner. The AA designates a
Case Examiner for the listing proceeding
( Attachment V ), Section 15.12(a). The Case
Examiner may be any EPA employee who has subject
matter expertise and who is not involved in the
underlying enforcement action or listing action.
The LO will consult with the AEC(s) to identify
appropriate persons to act as Case Examiners in
listing proceedings.
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(2) LO Schedules Listing Proceeding. The LO schedules
the listing proceeding and notifies the recommending
person, the owner, operator or supervisor of the
facility, the Case Examiner, and the Listing Case
Team ( see paragraph Section III.C above ) of the
date, time and place of the listing proceeding
( Attachment W ), Section 15.12(b). That notice
letter also informs all parties of their obligation
to provide all other parties any papers which they
intend to submit at the listing proceeding at least
7 days prior to the listing proceeding.
It is the responsibility of the LO to attempt
to arrange the timing and location of the listing
proceeding so that it is convenient for all parties
to attend. The LO determines whether the listing
proceeding should be adjourned for good cause shown,
as provided in paragraph III.C.8.a ( page 14 ).
(3) LO Obtains Court Reporter. The LO retains the
services of a court reporter, Section 15.13(b)(2),
paid for by EPA.
(4) Listing Proceeding Held. The listing proceeding is
conducted in accordance with Section 15.13(b).
Regardless of who files the recommendation to list,
EPA will be represented at the listing proceeding by
the EPA regional or Headquarters attorney
responsible for the underlying enforcement action
unless that attorney is unavailable in which case
ORC will select an attorney to represent EPA.
(5) LO Obtains Decision of CE. The Case Examiner issues
his or her written decision on whether to list the
facility and files it with the LO within 30 days of
the conclusion of the listing proceeding, and any
supplementation of record allowed by the Case
Examiner, Section 15.13(c).
c. LO Sends Notice of CE's Decision and Opportunity for OGC
Review. After the CE files his or her decision with the LO,
the LO is responsible for notifying the appropriate parties of
the CE's decision as follows:
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(1) CE Decides to List. The LO notifies the owner,
operator or supervisor of the facility, the
recommending person, the AEC(s), and the RA, ORC,
and the regional program office, and the Director,
OCAPO of the CE's decision to list the facility and
of the facility's opportunity to have OGC review
that decision if such review is requested within 30
days ( Attachment X ), Section 15.13(d).
(2) CE Decides Not to List. The LO notifies the owner,
operator or supervisor of the facility, the RA, ORC,
and the regional program office, and the Director,
OCAPO of the Case Examiner's decision denying the
recommendation to list the facility. The Case
Examiner's decision not to list is final Agency
action on the recommendation to list ( Attachment
X ), Section 15.14(d).
d. OGC Review Not Requested. If the CE decides to list the
facility, the facility may request that OGC review the
CE's decision. The request for review must be made in
writing and must be received by the LO within 30 days of
the date on which notice of the CE's decision was
received by the facility.
If the LO does not receive a timely written request
for OGC review, then the CE's decision granting the
recommendation to list stands as final Agency action,
Section 15.14(d), and the LO follows the steps set forth
in the Listing Checklist found in Table One on page 27.
e. OGC Review Requested. If the facility files a timely
request with the LO for OGC review, the LO does the
following:
(1) The LO Transmits the Request for OGC Review to ORC.
The LO transmits ( Attachment Y ) a copy of the
request for OGC review to ORC. ORC is responsible
for obtaining comments from the AEC(s) and
recommending person ( if the recommendation to list
was not filed by EPA ). ORC must then prepare and
return to the LO, within 14 days of receiving the
request for OGC review, a reply brief stating the
Agency's response to the facility's claims in the
request for OGC review. Generally, the attorney who
represented EPA at the listing proceeding should
prepare the reply brief.
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(2) LO Transmits Request to OGC. When the LO receives
the reply brief responding to the request for OGC
review, the LO transmits to OGC: (i) the Case
Examiner's decision; (ii) the request for review;
(iii) the reply brief; (iv) the comments of the
AEC(s) and recommending person; and (v) the entire
record of the listing action ( Attachment Z ).
(3) OGC Reviews CE's Decision. OGC reviews the Case
Examiner's decision based on the record of the
listing proceeding considered as a whole, and issues
a final decision within 30 days or as soon as
practicable, Section 15.14(c).
f. The LO Obtains OGC's Decision. When OGC files its
decision with the LO, it becomes final Agency action on
the recommendation to list, Section 15.14(c). The LO
then does the following:
(1) OGC Affirms the Case Examiner. If OGC affirms the
Case Examiner's decision to list, listing is
effective when OGC's decision is filed with the LO.
The LO follows the steps in the Listing Official's
Discretionary Listing Checklist found in Table One
on page 27.
(2) OGC Reverses the Case Examiner. If OGC reverses the
Case Examiner, the LO notifies the owner, operator,
or supervisor of the facility, the recommending
person, the AA, the Director, OCAPO, the AEC(s) and
the RA, ORC and regional program office, that the
recommendation to list has been denied on the basis
of OGC's decision on review ( Attachment AA ).
7. Withdrawal of a Recommendation to List. The recommending
person may withdraw his or her recommendation to list under
the following circumstances:
a. Prior to the Conclusion of the Listing Proceeding. At
any time before the Case Examiner ( CE ) issues his or
her written decision concluding the listing proceeding,
the recommending person may withdraw the recommendation
to list for any reason. However, a request to withdraw
the recommendation to list must be made in writing and
must state the reason for withdrawing the request. A
recommending person must withdraw a recommendation to
list
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if he or she determines that the facility has corrected
the condition which gave rise to the recommendation to
list, Section 15.11(d).
b. After the Conclusion of the Listing Proceeding. After
the Case Examiner ( CE ) has issued his or her decision
at the conclusion of the listing proceeding, a
recommendation to list may only be withdrawn if the
recommending person determines that the facility has
corrected the condition which gave rise to the
recommendation to list, Section 15.11(d). The request to
withdraw the recommendation to list must be made in
writing and must state the reason for withdrawing the
request. A recommending person must withdraw a
recommendation to list if he or she determines that the
facility has corrected the condition which gave rise to
the recommendation to list, Section 15.11(d).
8. Stays of a Discretionary Listing Action. All stays of listing
actions are presumed to be prejudicial to the proceedings.
Consequently, a stay of a discretionary listing action may be
granted only under the following circumstances:
a. Prior to the Listing Proceeding. The LO may grant a stay
of the discretionary listing action (1) for a period not
to exceed 60 days, (2) upon timely notice, (3) for good
cause shown, (4) on the record, and (5) after
consideration of the prejudice to the parties or the
proceeding.
b. During the Listing Proceeding. The Case Examiner may
grant a stay of the listing proceeding (1) for a period
not to exceed 60 days, (2) to permit any party to obtain
evidence or (3) for any other reason that will advance
the proceedings, (4) giving due consideration to any
prejudice to the parties.
c. After the Listing Proceeding. The LO may grant a stay of
the discretionary listing action (1) for a period not to
exceed 60 days, (2) upon timely notice, (3) for good
cause shown, (4) on the record, and (5) after
consideration of the prejudice to the parties. Any stay
shall not extend the time in which a party must request
EPA General Counsel review of a Case Examiner's decision
in a listing proceeding.
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IV. PROCEDURES FOR REMOVAL FROM THE LIST
A facility may be removed from the List in one of four ways. A facility
may be removed automatically if the conviction which was the basis for
mandatory listing or the decision in the underlying enforcement action that
was the basis for discretionary listing is reversed, or after one-year on
the List in some discretionary listing cases. A facility may also be
removed from the List following final Agency action as a result of: a
favorable decision by the AA on the facility's request for removal; a
favorable decision by a CE following the AA's denial of the request to
remove the facility from the List; or a favorable decision by the
Administrator if the CE denies the removal request.
Requests for removal will be processed by a removal case team composed
of staff representatives of the AEC(s), the ORC, the regional program office
and the LO. The regional representatives to the team will act as advocates
for the Region's position on the removal request. The representative(s) of
the AEC(s) will act as counsel to both the Region and the LO. The
adjudicative function will be represented by the LO's designee to the team.
Each team member will be responsible for ensuring that his or her office
completes its assignments under the Protocols in a timely fashion and that
all necessary reviews and acknowledgements from policy level officials
within his or her office are obtained.
A. Automatic Removal
1. Mandatory Listing
a. Reversal of Conviction. The owner, operator or
supervisor of the facility is responsible for informing
the LO if any criminal conviction which resulted in
listing is overturned and must provide a certified copy
of the judicial order reversing the conviction.
Upon receipt of that order and confirmation that a
legal basis for mandatory listing no longer exists, the
LO follows the steps set forth in the Listing Official's
Removal Checklist found in Table Two on page 28. If
there is a dispute concerning the effect of a court order
purportedly reversing a conviction, the dispute shall be
resolved by processing the request as a request for
removal based on correcting the condition that gave rise
to listing. The procedures set forth at paragraph IV.B.4
( page 19 ) are used in processing that request. A
further appeal which leads to reinstatement of the
judgment of conviction will result in automatic
relisting.
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2. Discretionary Listing
a. Reversal of Underlying Order. The owner, operator or
supervisor of the facility is responsible for informing
the LO if any order which was the basis for a
determination to list has been reversed and must provide
a certified copy of the document evidencing the reversal
of the prior order.
Upon confirmation that a legal basis for
discretionary listing no longer exists, the LO follows
the steps set forth in the Listing Official's Removal
Checklist found in Table Two on page 28. If there is a
dispute concerning the effect of an order purportedly
reversing a prior order which was the sole basis for a
discretionary listing determination, the dispute shall be
resolved by processing the request as a request for
removal based on correcting the condition that gave rise
to listing. The procedures set forth at paragraph IV.B.4
( page 19 ) are used in processing that request. A
further appeal which leads to the reinstatement of the
order which was the basis for discretionary listing will
result in automatic relisting.
b. Expiration of One Year. A facility listed under Sections
15.11(a)(4), (a)(5), or (a)(6), is eligible to be removed
from the List after one year, unless, within that one
year period, the LO is informed that: (1) a basis for
mandatory listing exists as a result of the conviction of
the owner, operator or supervisor of the facility for a
violation of Section 113(c)(1) of the CAA or Section
309(c) of the CWA; or (2) a basis for discretionary
listing exists as a result of the facility's continuing
or recurring noncompliance with clean air or clean water
standards and: (a) a federal court has convicted any
person who owns, operates or supervises the facility of a
violation of Section 113(c)(2) of the CAA, Section
15.11(a)(1); or (b) a state or local court has convicted
any person who owns, operates or supervises the facility
of a criminal offense on the basis of noncompliance with
clean air or clean water standards, Section 15.11(a)(2);
or (c) a federal, state, or local court has issued an
order or civil ruling as a result of noncompliance with
clean air or clean water standards, Section 15.11(a)(3).
If, after a facility has remained on the List for
one year, the LO determines that the facility is entitled
to removal from the List, the LO follows the steps in the
Listing Official's Removal Checklist found in Table Two
on page 28.
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B. Requests for Removal. Regardless of the underlying basis for
removal and regardless of whether listing was the result of the
mandatory or discretionary listing process, the removal process can
be initiated by filing a request for removal with the LO. The
original recommending person or any person who owns, operates or
supervises a listed facility may file a request for removal with
the LO, Section 15.22(a).
45-DAY PERIOD. As soon as the request is received, the LO:
(i) notes on the listing docket the date on which the request for
removal was filed; (ii) reviews the request to determine the basis
upon which removal is sought; and (iii) sends a letter to the
person requesting removal that acknowledges receipt of the request
and notifies him or her that the failure of EPA to respond to the
request for removal within 45 days of the date of the notice letter
constitutes a denial of the request for removal at which point a
removal hearing before a Case Examiner may be requested
( Attachment CC ). The Agency's goal is to process each request
for removal before this 45-day period expires.
1. Reversal of Underlying Court Order. If the request for
removal is founded on the reversal of the court order which
was the basis for listing, then the LO follows the procedures
in paragraphs IV.A.1 ( page 15 ) or IV.A.2.a ( page 16 )
above.
2. Expiration of One Year ( Discretionary Listing Only ). If the
request for removal is founded on the expiration of one year
in a discretionary listing case under Sections 15.11(a)(4),
(a)(5) or (a)(6), then the LO follows the procedures in
paragraphs IV.A.2.b ( page 16 ) above.
3. Plan for Compliance ( Discretionary Listing Only ). If the
request for removal is founded on the facility's establishing
a plan for compliance which is acceptable to the AA, then the
LO follows the procedures described below.
( Day 1-10 ) a. Requests Filed by the Regional Office. If the request
for removal was filed by the regional office, the LO
transmits the request to the AEC(s), the owner, operator
or supervisor of the listed facility, and the original
recommending person in the discretionary listing case,
asking them to submit their comments on the request for
removal and plan for compliance to the LO within 10 days
( Attachment DD ).
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( Day 1-10 ) b. Requests Filed by the Others. If the request for removal
was filed by some person other than the staff of an EPA
regional office, the LO transmits a copy of the request
for removal to the AEC(s), the RA, ORC and regional
program office, the owner, operator or supervisor of the
listed facility, and the original recommending person in
the discretionary listing case, asking them to submit
their comments on the request for removal and plan for
compliance to the LO within 10 days ( Attachment DD ).
( Day 11-25 ) c. Regional Office Prepares Formal Recommendation. At the
end of 10 days, the LO reviews all comments that have
been received, forwards copies of them to the regional
office in which the listed facility is located and asks
the ORC to prepare and return to the LO within 15 days
( Attachment EE ):
(1) a formal recommendation based on the regional
office's assessment of whether the request for removal
should be granted or denied in light of the facility's
proposed plan for compliance ( Attachment FF );
(2) a memorandum summarizing the supporting
documentation for the formal recommendation ( Attachment
GG ); and
(3) the written acknowledgement of the Regional
Administrator or Deputy Regional Administrator indicating
that he or she has reviewed the formal recommendation and
submitted any comments on it to the LO.
( Day 26-38 ) d. LO Drafts Determination. At the end of the 15-day
period, the LO receives the Region's formal
recommendation on the request for removal and plan for
compliance ( Attachment FF ), and the summary of
supporting documentation ( Attachment GG ), confirms that
the recommendation has been reviewed by the Regional
Administrator or Deputy Regional Administrator, and
drafts a determination for the AA's signature
( Attachment HH ).
( Day 38-42 ) e. Headquarters Review and Comment. After the draft
determination has been prepared ( Attachment HH ), the LO
sends it for review and comment, along with the summary
of supporting documentation ( Attachment GG ), to: (1)
the Associate Enforcement Counsel ( AEC ) for Air or
Water or both; (2) the Director, OCAPO; and (3) the DAA-
EOCM-Civil,
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or the DAA-OECM-Criminal, or both. Each office must
acknowledge that it has reviewed the document and made
any necessary comments before returning the draft
determination to the LO.
( Day 43-45 ) f. Decision by AA. After the appropriate Headquarters staff
have reviewed and commented on the draft determination,
and any necessary revisions have been made, the LO
prepares a transmittal memorandum ( Attachment JJ ) and
one-page briefing memorandum that summarizes: (i) the
history of the case; (ii) the status of the case; (iii)
the reasons for the recommended determination; (iv)
whether the RA, ORC and regional program office have
expressed comments in agreement with the draft
determination; and (v) problems or special considerations
( Attachment KK ). The LO sends the briefing memorandum
( Attachment KK ), the draft determination ( Attachment
HH ), and the summary of supporting documentation
( Attachment GG ), to the AA for his or her decision.
If an oral briefing is requested, the LO schedules
the briefing, arranges for representatives of the AEC(s)
and OCAPO to be present, and offers the RA, DRA, ORC and
regional program office an opportunity to be present at
the briefing in person or by telephone.
(1) AA Grants Removal Based on Plan for Compliance. If
the AA approves the plan for compliance, the LO
follows the steps set forth in the Listing
Official's Removal Checklist found in Table Two on
page 28.
(2) AA Denies Removal. If the AA does not approve the
plan for compliance and denies the request for
removal, the LO notifies the owner, operator or
supervisor of the facility, the recommending person,
AEC(s) and RA, ORC and regional program office, the
Director, OCAPO, and the DAA-OECM-Civil and DAA-OECM
-Criminal, that the request for removal has been
denied and notifies the facility of the opportunity
to request, within 30 days, a hearing before a Case
Examiner ( Attachment LL ), Sections 15.22(c) and
15.23(a).
4. The Condition Giving Rise to Listing Has Been Corrected. If
the request for removal is based on the facility having
corrected the condition that gave rise to listing, the LO
follows the procedures described below.
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( Day 1-10 ) a. Requests Filed by the Regional Office. If the request
for removal was filed by the regional office, the LO
transmits the request to the AEC(s), the owner, operator
or supervisor of the listed facility, and the original
recommending person in discretionary listing cases,
asking them to submit their comments on the request for
removal to the LO within 10 days ( Attachment MM ).
( Day 1-10 ) b. Requests filed by Others. If the request for removal was
filed by some person other than EPA regional office
staff, the LO transmits a copy of the request for removal
to the AEC(s), the RA, ORC and regional program office,
the owner, operator or supervisor of the listed facility,
and the original recommending person in discretionary
listing cases, asking them to submit their comments on
the request for removal to the LO within 10 days
( Attachment MM ).
( Day 11-25 ) c. Region Prepares Formal Recommendation. At the end of 10
calendar days, the LO reviews all comments that have been
received, forwards copies of them to the regional office
for the Region in which the listed facility is located
and asks the ORC to prepare and return to the LO within
15 days ( Attachment EE ):
(1) A formal recommendation ( Attachment FF ), based on
the regional office's assessment of whether the
request for removal should be granted or denied
under the policy defining what constitutes
correcting the condition giving rise to listing
( Attachment WW ). The formal recommendation must
contain: (i) a background section that summarizes
the history and proposed resolution of the case;
(ii) specific factual findings covering all major
events in the case and technical tests that support
the determination from the date of the original
violation to the present time, and all expected
events and test results, including any environmental
cleanup under a compliance plan approved by EPA
( any consent decree, probation order,
administrative order, performance guarantee, or
permit evidencing the compliance schedule should be
attached to the recommendation ); and (iii) a
conclusion setting forth the recommendation.
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(2) A document summarizing the supporting documentation
for the recommendation ( Attachment GG ). The
summary of supporting documentation must: (i)
identify the source of all information available for
making the determination; (ii) identify all
inspections made and state whether they satisfy the
policy on independent verification ( Attachment
XX ); (iii) identify, in accordance with the policy
defining condition, the specific condition that gave
rise to listing ( Attachment YY ) and the manner in
which the condition has been or is being corrected;
(iv) describe the status of the facility's efforts
to correct the condition; and (v) ensure that any
comments by state or local authorities are
reflected; and
(3) The acknowledgement of the Regional Administrator or
Deputy Regional Administrator that he or she has
reviewed the formal recommendation and summary of
documentation and made any necessary comments.
( Day 26-38 ) d. LO Drafts Determination. At the end of 15 days, the LO
receives the formal recommendation on the request for
removal ( Attachment FF ) and the summary of supporting
documentation ( Attachment GG ), confirms that the
recommendation has been reviewed by the Regional
Administrator or Deputy Regional Administrator, notes on
the summary of supporting documentation any materials
available at Headquarters, and prepares a draft
determination for the AA's signature.
( Day 39-42 ) e. Headquarters Review. Once the draft determination
( Attachment HH ) has been prepared, it is transmitted,
along with the summary of supporting documentation
( Attachment GG ), for review and comment to: (1) the
Associate Enforcement Counsel ( AEC ) for Air, Water or
both; (2) the Director, OCAPO; and (3) the DAA-OECM-Civil
and DAA-OECM-Criminal. After each of these individuals
has acknowledged reviewing and commenting on the draft
determination and summary of supporting documentation,
those documents are returned to the LO to make any
revisions the LO deems necessary.
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( Day 43-45 ) f. Decision by AA. After the appropriate Headquarters staff
have reviewed and commented on the draft determination,
and any necessary revisions have been made, the LO
prepares a transmittal memorandum ( Attachment JJ ), and
one-page briefing memorandum that summarizes: (i) the
history of the case; (ii) the status of the case; (iii)
the reasons for the recommended determination; (iv)
whether the RA, ORC and regional program office have
expressed comments in agreement with the draft
determination; and (v) problems or special considerations
( Attachment KK ). The LO sends the briefing memorandum
( Attachment KK ), the draft determination ( Attachment
HH ), and the summary of supporting documentation
( Attachment GG ), to the AA for his or her decision.
If an oral briefing is requested, the LO schedules
the briefing, arranges for representatives of the AEC(s)
and OCAPO to be present, and offers the RA, DRA, ORC and
regional program office an opportunity to be present at
the briefing in person or by telephone.
(1) AA Grants Removal. If the AA approves the request
for removal, the LO follows the steps set forth in
the Listing Official's Removal Checklist found in
Table Two on page 28.
(2) AA Denies Removal. If the AA denies the request for
removal, the LO notifies the owner, operator or
supervisor of the facility, recommending person,
AEC(s) and RA, ORC and regional program office, the
Director, OCAPO, and the DAA-OECM-Civil and DAA-
OECM-Criminal, that the request for removal has been
denied. The LO also notifies the facility of the
opportunity to request, within 30 days, a hearing
before a CE ( Attachment LL ), Sections 15.22(c) and
15.23(a).
5. Removal Hearing. The owner, operator or supervisor of a
listed facility, or the original recommending person in the case
of a facility listed under the discretionary listing process, may
file with the LO, within 30 calendar days after the decision of
the AA denying removal, a written request for a removal hearing,
Section 15.23(a).
a. Removal Hearing Not Requested. If the LO does not receive a
request for a removal hearing within 30 calendar days after
the decision of the AA, the LO notifies: the owner, operator,
or supervisor
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of the facility; the original recommending person; the AA; the
Director, OCAPO; the AEC(s); and the RA, ORC and regional
program office; that the decision of the AA is final Agency
action on the request for removal and that any person who may
make a request for removal may file a new request for removal
based on new information ( Attachment NN ), Section 15.23(b).
b. Removal Hearing Requested. If the LO receives a request for a
removal hearing within 30 days after the decision of the AA,
the LO does the following:
(1) AA Designates a Case Examiner. The AA designates a Case
Examiner for the removal hearing ( Attachment OO ),
Section 15.24. The Case Examiner may be any EPA employee
who has subject-matter expertise and who was not involved
in the underlying enforcement action or listing action
( except that the Case Examiner who served in the listing
proceeding involving the facility may serve as Case
Examiner in the removal hearing ). The LO will consult
with the AEC(s) to determine appropriate persons to act
as Case Examiners in removal hearings.
(2) LO Schedules Removal Hearing. The LO schedules the
removal hearing and notifies the owner, operator or
supervisor of the facility, the original recommending
person, the federal, state or local authority responsible
for enforcement of clean air or clean water standards,
the Case Examiner, and the removal case team ( see
Section IV, page 15 ) of the date, time and place of the
removal hearing ( Attachment PP ).
That notice letter also informs all parties of their
obligation to serve on all other parties copies of all
documents which they intend to submit at the removal
hearing at least one week prior to the removal hearing.
It is the responsibility of the LO to attempt to arrange
the timing and location of the listing proceeding so that
it is convenient for all parties to attend.
(3) LO Obtains Court Reporter. The LO retains the services
of a court reporter, Section 15.24(a)(2), paid for by
EPA.
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(4) Removal Hearing Held. The removal hearing is conducted
in accordance with Sections 15.24(a-c). EPA will be
represented at the removal hearing by the EPA regional or
Headquarters attorney responsible for the underlying
enforcement action.
(5) LO Obtains Decision of CE. The Case Examiner issues his
or her written decision on whether to grant the request
for removal and files it with the LO as soon as
practicable with a target of filing the decision no later
than 30 days after the conclusion of the removal hearing,
and any supplementation of the record allowed by the Case
Examiner, Section 15.24(c).
c. LO Sends Notice of CE's Decision. The LO is responsible for
sending written notice of the Case Examiner's decision to the
owner, operator, or supervisor of the facility, the original
recommending person, the AEC(s), the RA, ORC and regional
program office the federal, state or local authority
responsible for enforcement of clean air or clean water
standards.
(1) If the Case Examiner grants removal, the LO follows the
steps set forth in the Listing Official's Removal
Checklist found in Table Two on page 28.
(2) If the Case Examiner denies removal, the LO notifies the
owner, operator or supervisor of the facility, the
original recommending person, the AEC(s), the RA, ORC and
regional program office and the federal, state or local
authority responsible for the enforcement of clean air or
clean water standards of the decision and advises the
facility of the opportunity to request the Administrator
to review the Case Examiner's decision ( Attachment QQ ),
Section 15.24(d), if a written request for such review is
filed with the LO within 30 days after the date of the
Case Examiner's decision, Section 15.25(a).
d. Administrator's Review Not Requested. If the LO does not
receive a written request for review within 30 days after the
date of the Case Examiner's decision, the LO sends a notice to
the owner, operator, or supervisor of the facility, the
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original recommending person, the DAA-OECM-Civil and DAA-OECM-
Criminal, the Director, OCAPO, the AEC(s), the RA, ORC and
regional program office, and the federal, state or local
authority responsible for the enforcement of clean air or
clean water standards, informing them that the Case Examiner's
decision stands as final Agency action on the request for
removal, Section 15.25(c), and that any person who may file a
request for removal may file a new request for removal based
on new information ( Attachment RR ).
e. Administrator's Review Requested. If the LO receives a timely
written request to have the decision of the Case Examiner
reviewed by the Administrator:
(1) The LO Transmits the Request for Administrator's Review
to ORC. The LO transmits a copy of the request for
Administrator's review to ORC ( Attachment SS ). ORC is
responsible for obtaining comments from the AEC(s) and
the original recommending person ( if the recommendation
to list was filed by somebody other than EPA ), and any
federal, state, or local authority with responsibility
for the enforcement of clean air or clean water
standards. Within 14 days of receiving the copy of the
request for Administrator's review, ORC must prepare and
return to the LO a reply brief stating the Agency's
response to the facility's claims in the request for
Administrator's review. Generally, the attorney who
represented EPA at the removal hearing should prepare the
reply brief.
(2) LO Transmits Request to the Administrator. After the
reply brief has been received, the LO transmits to the
Administrator: (i) the Case Examiner's decision; (ii)
the request for review; (iii) the reply brief; (iv) the
comments received; and (v) the entire record of the
removal action ( Attachment TT ).
(3) The Administrator Reviews the CE's Decision. The
Administrator reviews the Case Examiner's decision based
on the record of the removal hearing considered as a
whole, and issues a final decision as soon as
practicable, Section 15.25(b). The Administrator's
decision is final Agency action, Section 15.25(b).
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f. The LO Obtains the Administrator's Decision. The
Administrator files his decision with the LO following review
of the Case Examiner's decision. Once filed with the LO, the
Administrator's decision is final Agency action on the request
for removal and the LO does the following:
(1) If the Administrator affirms the Case Examiner's decision
denying removal, the LO notifies the owner, operator, or
supervisor of the facility, the original recommending
person, the AEC(s), the RA, ORC and regional program
office, and the federal, state or local authority
responsible for the enforcement of clean air or clean
water standards, that the Administrator's decision
affirming the Case Examiner stands as final Agency action
denying the request for removal, Section 15.25(b), and
that any person who may file a request for removal may
file a new request for removal based on new information
( Attachment UU ), Section 15.25(d).
(2) If the Administrator reverses the Case Examiner and
grants the request for removal, the LO follows the steps
set forth in the Listing Official's Removal Checklist
found in Table Two on page 28.
V. DISTRIBUTION OF THE LIST.
On or about February 1 and August 1 of each year, the LO publishes an
updated List in the Federal Register ( Attachment VV ), Section 15.40 by
following the procedures below.
A. The LO obtains EPA Form 2340-15, FEDERAL REGISTER TYPESETTING
REQUEST, from the LEPB supply and completes Items 1, 3, 7, 8, 9, 11
and 13.
1. The LO estimates the number of columns needed ( Item 8 ) using
the following formula: two double-spaced typed pages equals
one column.
2. The LO estimates the cost ( Item 9 ) by using the following
formula: one column costs $125.00.
B. The LO submits the completed Form 2340-15 to the OECM Management
Operations Branch.
C. The LO delivers the signed original and three copies of the Federal
Register Notice to the EPA Federal Register Office with the Form
2340-15 Typesetting Request attached.
Attachments
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TABLE ONE
LISTING OFFICIAL'S DISCRETIONARY LISTING CHECKLIST
The Listing Official must perform the following tasks once final Agency
action on a recommendation for discretionary listing has resulted in the
decision to place a facility on the List of Violating Facilities ( the
List ):
1. Place the facility on the List, Section 15.12(d);
2. Notify the owner, operator, or supervisor of the facility, and the
recommending person that the facility has been listed and of the effective
date of listing ( Attachment S ), section 15.16(b);
3. Notify the AEC(s) and the RA, ORC and regional program office of
the listing and its effective date and that the facility will automatically
be removed from the List after one year if it was listed under Section
15.11(a)(4), (a)(5) or (a)(6) unless within that period the LO is notified
that a basis for listing under Section 15.11(a)(1), (a)(2), or (a)(3) has
occurred ( Attachment T );
4. Publish a notice in the Federal Register ( Attachment B ), Section
15.16(c);
5. Notify GSA to add the facility to GSA's Consolidated List of
Debarred, Suspended, and Ineligible Contractors ( Attachment C );
6. Notify all federal agencies with major assistance responsibilities,
identified on the Assistance Agencies List ( Attachment D ), that the
facility is no longer eligible for federal assistance programs ( Attachment
E ); and
7. Provide OPA with the information necessary to prepare a press
release or press advisory on the listing action ( Attachment F ).
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TABLE TWO
LISTING OFFICIAL'S REMOVAL CHECKLIST
The Listing Official must perform the following tasks once final Agency
action has resulted in a decision to remove a facility from the List of
Violating Facilities ( the List ):
1. Remove the facility from the List, Sections 15.20 or 15.21(a)-(b);
2. Notify the owner, operator or supervisor of the facility,
recommending person, AEC(s) and the RA, ORC and regional program office of
the effective date of removal ( Attachment BB ), Section 15.27;
3. Publish in the Federal Register a notice that the facility has been
removed from the List ( Attachment B ), Section 15.27;
4. Notify the General Services Administration ( GSA ) to remove the
facility from GSA's Consolidated List of Debarred, Suspended, and Ineligible
Contractors ( Attachment C );
5. Remove the case from the listing docket; and
6. Notify all federal agencies with major assistance responsibilities,
identified on the Assistance Agencies List ( Attachment D ), that the
facility is once again eligible to receive federal assistance ( Attachment
E ).
LIST OF ATTACHMENTS
# Title Location
Discussed
A Model Notice Letter to a Facility Listed Under Mandatory 4
Listing
B Sample Federal Register Notice Publishing Changes to the 4, 27, 28
List As They Occur
C Model Letter to GSA Advising of Changes to the List 4, 27, 28
D List of Federal Agencies With Major Assistance 4, 27, 28
Responsibilities
E Model Letter to Federal Agencies With Assistance 4, 27, 28
Responsibilities Advising of Changes to the List
F Model Memorandum Providing Information for Press Office 5, 27
Preparation of a Press Release on a Listing Action
G Model Memorandum Asking for Comments on Recommendation to 6
List
H Model Request for Additional Information from Recommending 7
Person
J Model Memorandum Briefing the Assistant Administrator on 7
the Basis for Recommendation to List
K Model Statement by Assistant Administrator Declining to 7, 8
to Proceed With Listing Action
L Model Notice Letter That a Recommendation to List Has Been 8
Filed and Declined
M Model Letter Notifying Facility of Proposed Listing and 8
Opportunity to Request Listing Proceeding
N Model Memorandum Transmitting Listing Recommendation to 8
the Region Requesting Documentation
O Sample Summary of Supporting Documentation for 8, 9
Recommendation to List
P Sample Discretionary Determination to List 9
List of Attachments p. 2
# Title Location
Discussed
Q Model Memorandum Transmitting Draft Determination to List 9
from Listing Official to Assistant Administrator
R Sample Briefing Document on Recommendation to List Under 9
the Discretionary Listing Process
S Model Notice Letter of Discretionary Listing and Final 27
Agency Action
T Model Memorandum Notifying Case Removal Team of 27
Discretionary Listing
U Model Notice Letter that Recommendation to List Has been 10
Denied
V Model Designation of Case Examiner for Listing Proceeding 10
W Model Notice Letter of Date, Time and Location of Listing 11
Proceeding
X Model Notice Letter of Case Examiner's Decision in a 12
Listing Proceeding
Y Model Memorandum Asking the Region to Draft a Reply Brief 12
Responding to a Request for Review
Z Model Memorandum Transmitting to the General Counsel a 13
Request for Review of the Case Examiner's Decision
in a Listing Proceeding
AA Model Notice Letter of General Counsel's Decision 13
Reviewing the Case Examiner's Decision to List
BB Model Notice Letter of Effective Date of Removal 28
CC Model Letter Acknowledging Receipt of Removal Request 17
DD Model Memorandum Requesting Comments on Request for 17, 18
Removal
EE Model Request to Region to Prepare Formal Recommendation 18, 20
on Request for Removal
FF Sample Formal Recommendation from Region on Request to 18, 20, 21
Remove a Facility from the List of Violating
Facilities
GG Sample Summary of Supporting Documentation for Removal 18, 19, 21,
Request 22
List of Attachments p. 3
# Title Location
Discussed
HH Sample Determination to Remove a Facility from the List 18, 19, 21,
22
JJ Model Memorandum Transmitting Removal Request and Proposed 19, 22
Determination from the Listing Official to the
Assistant Administrator
KK Model Briefing Outline on Request for Removal 19, 22
LL Model Notice of Assistant Administrator's Decision Denying 19, 22
Removal Request
MM Model Memorandum Asking for Comments on Request for 20
Removal
NN Model Notice Letter of Assistant Administrator's Decision 23
Denying Removal
OO Model Designation of Case Examiner for Removal Hearing 23
PP Model Notice Letter of Date, Time and Location of Removal 23
Hearing
QQ Model Notice Letter of Case Examiner's Decision in 24
Removal Hearing
RR Model Notice That the Decision of the Case Examiner is 25
Final Agency Action
SS Model Memorandum Asking the Regional Office to Draft Reply 25
Brief Responding to Request for Administrator's
Review
TT Model Memorandum Transmitting to the Administrator a 25
Request for Review
UU Model Notice of Determination of Administrator on Review 26
of the Case Examiner's Decision
VV Sample Federal Register Notice Published Twice Yearly 26
WW Policy on Correcting the Condition Giving Rise to Listing 1, 20
XX Policy on Independent Verification that Requirements for 1, 21
Removal Have Been Met in Mandatory Listing Cases
YY Definition, for Purposes of Removal, of the "Condition" 1, 21
That Gives Rise to Mandatory Listing
ZZ 40 CFR Part 15 ( 50 Fed. Reg. 36188, September 5, 1985 ) 1, 2
Attachment WW
MEMORANDUM October 8, 1987
SUBJECT: Policy on Correcting the Condition Giving Rise to Listing Under the
Contractor Listing Program
FROM: Thomas L. Adams, Jr.
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Assistant Administrator for Air and Radiation
Assistant Administrator for Water
General Counsel
Inspector General
Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
ISSUE PRESENTED: What constitutes correcting the condition giving rise to
listing within the meaning of 40 CFR Sections 15.20 and 15.21.
BACKGROUND: The Environmental Protection Agency ( EPA ) is provided
authority under Section 306 of the Clean Air Act ( CAA ), 42 USC Section
7606, Section 508 of the Clean Water Act ( CWA ), 33 USC Section 1368,
Executive Order 11738 and 40 CFR Part 15 ( 49 Fed. Reg. 30628 ) to prohibit
any facility owned, leased or supervised by a person convicted of violating
Section 113(c)(1) of the Clean Air Act, 42 USC Section 7413(c)(1), or
Section 309(c) of the Clean Water Act, 33 USC Section 1319(c), or found to
be a source of continuing or recurring CAA or CWA violations despite
previous enforcement actions, from receiving any federal contract or
subcontract. The prohibition against the use of such facilities continues
in the case of a listing action resulting from a criminal conviction "until
the Administrator certifies that the condition giving rise to such
conviction has been corrected." 42 USC Section 7606, 33 USC Section 1368.
This statutory requirement is implemented by regulations requiring the
Assistant Administrator for Enforcement and Compliance Monitoring, as
delegatee of the Administrator, to certify that the condition giving rise to
listing has been corrected, see 40 CFR Sections 15.20 and 15.21(a)(2),
before a facility may be removed
Attachment WW, p. 2
2
from the EPA List of Violating Facilities ( the List ). 1/
1/ The Contractor Listing Program is composed of two parts: (1) mandatory
listing pursuant to 40 CFR Section 15.10 which occurs automatically upon
conviction under Section 113(c)(1) of the Clean Air Act or Section
309(c) of the Clean Water Act and (2) discretionary listing pursuant to
40 CFR Section 15.11 based on continuing or recurring noncompliance with
clean air or clean water standards despite previous enforcement actions.
A facility listed under the mandatory listing program may only obtain
removal from the list on the basis of correcting the condition which
gave rise to listing. A facility listed under the discretionary listing
program may be removed from the List by correcting the condition giving
rise to listing as well as other means. Except where otherwise
indicated, the policies contained in this document apply to requests for
removal following mandatory or discretionary listing.
However, the statute and its legislative history provide no definitive
guidance on how that phrase should be interpreted, and the question is not
addressed in the regulations. The legislative histories of the Clean Water
Act and Clean Air Act provide that a purpose of the contractor listing
program is to ensure that "the Federal Government will not patronize or
subsidize polluters through its procurement practices and policies." S.
Conference Rep. No. 1236 ( to accompany S. 2770, the senate version of the
Clean Water Act ), 92nd Congress, 2d Session, reprinted in 1972 US Code
Cong. & Ad. News 3776, 3824. The regulations provide:
"It is the policy of the Federal Government to improve and enhance
environmental quality. This regulation is issued to ensure that
each agency in the Executive Branch of the Federal Government that
is empowered to enter into contracts for the procurement of goods,
materials or services or to extend Federal assistance by way of
grant, loan, or contract undertakes such procurement and assistance
activities in a manner that will result in effective enforcement of
the Clean Air Act ... and the Clean Water Act ... and does not
favor firms where production costs may lower due to noncompliance."
40 CFR Section 15.1.
In addition to the policies cited above, implementation of the
contractor listing program should be carried out in a manner that achieves
the following three goals: (1) compliance with environmental regulations
and swift resolution of environmental problems; (2) fair and equitable
treatment of the regulated community; and (3) deterrence. Furthermore, the
administrative challenges associated with the program can be exacerbated or
Attachment WW, p. 3
3
reduced depending on the procedures EPA follows to determine if a facility
is entitled to removal from the List. 2/
2/ As the legislative history to Section 508 of the Clean Water Act
acknowledged: "The effectiveness of this section would depend on fast,
accurate dissemination of information. All Federal agencies would have
to be rapidly apprised of any abatement order or conviction which would
bar a facility from eligibility for Federal contracts. The
Administrator would also have to act expeditiously to certify that a
facility had achieved compliance, and notify all Federal agencies of
that fact. Delays in reporting such information, leading to inaccurate
public disclosures, would quickly render this section unworkable." S.
Rep. No. 414 ( to accompany S. 2770, the senate version of the Clean
Water Act ), 92nd Congress, 2d Session, reprinted in 1972 US Code Cong.
& Ad. News 3668, 3749-3750.
PURPOSE: Two approaches have been proposed for defining what would be
necessary to certify that the condition giving rise to listing has been
corrected and grant a facility's request for removal from the List following
mandatory or discretionary listing. The Physical Correction Approach
defines correcting the condition giving rise to listing as requiring the
facility to come into compliance with the statutory and regulatory
provisions whose violation led to listing. The Scheduled Correction
Approach defines correcting the condition giving rise to listing as
requiring the facility to be subject to an independently enforceable
agreement to perform all corrective action in accordance with a schedule for
compliance established by EPA.
EPA has not formally adopted any definition of what constitutes
correcting the condition giving rise to listing. To date, the listing
program has generally required Physical Correction in determining whether a
facility is entitled to be removed from the List. However, the approaches
identified in this policy document are not mutually exclusive. Formal
adoption of the Physical Correction Approach and Scheduled Correction
Approach would give EPA greater flexibility in carrying out the contractor
listing program and will better permit EPA to achieve its broader goals of
enhancing compliance and improving the environment.
The purpose of this policy document is to present these two approaches,
identify the rationale supporting each approach, establish criteria for
applying each, and identify four nonexclusive mechanisms for meeting the
requirements of the second approach. The policies established in this
policy document would apply to requests for removal filed following
mandatory or discretionary listing.
CRITERIA: Any definition of what is necessary to certify that the condition
giving rise to mandatory listing has been corrected must provide for the
following:
Attachment WW, p. 4
4
* Enforceability - There must be adequate incentives for the facility
to correct the condition and there must be an efficient means for
EPA, at its sole discretion, to enforce the requirement to take
corrective action.
* Verifiability - There must be sufficient credible and verifiable
information generated by a source other than the violator to permit
EPA to make an independent judgement that the condition has been
corrected.
* Certainty - There must be sufficient assurance that the facility
will be in compliance with the statutory and regulatory
requirements associated with the conviction to permit the Assistant
Administrator for Enforcement and Compliance Monitoring to certify
that the condition that gave rise to listing has been corrected.
* Certification by the Violator - A responsible executive of the
facility must certify, subject to the sanctions of 18 USC Section
1001, that the condition has been corrected.
The two approaches, and manner in which they meet these criteria, are
described below.
PHYSICAL CORRECTION APPROACH: In order to correct the condition that gave
rise to listing, a facility must demonstrate that it is presently in
compliance with the specific statutory and regulatory requirements which
were the subject of the criminal conviction or judicial order in the
underlying criminal or civil enforcement action.
Discussion: The Physical Correction Approach would require a listed
facility to come into compliance with the statutory and regulatory
requirements whose violation led to listing before a request for removal
would be granted. This approach provides enforceability by conditioning
removal from the List on the completion of all corrective action.
Verifiability is provided through an inspection of the facility by EPA, the
state or an independent, credible third-party. Certainty that the facility
will be in compliance with the statutory and regulatory requirements
associated with the violation is ensured since compliance must be
demonstrated before the request for removal is granted. Finally, an officer
of the facility will be required to submit a written statement, subject to
the criminal sanctions provided by 18 USC Section 1001, certifying that all
corrective action has been completed before removal is granted.
SCHEDULED CORRECTION APPROACH: In order to correct the condition that gave
rise to mandatory listing, a facility must be subject to an independently
enforceable obligation to take all steps necessary to bring the facility
into compliance with the specific statutory and regulatory requirements
which were the subject of the criminal conviction or judicial order in the
underlying criminal or civil enforcement action and to carry out any
additional
Attachment WW, p. 5
5
corrective action which EPA may identify. During the period that the
facility is engaged in scheduled correction, it must use reasonable interim
control practices identified by EPA to reduce discharges. If the facility
fails to come into compliance according to the schedule set by EPA, the
Agency, at its sole discretion, may automatically place the facility back on
the List.
Discussion: The Scheduled Correction Approach would permit EPA to grant a
facility's request for removal from the List if the facility's future
compliance is ensured by an appropriate independently enforceable obligation
to carry out the necessary corrective action identified by EPA. It allows
earlier removal from the List with compliance ensured by an enforceable
obligation other than the listing sanction plus EPA's right to automatically
relist the facility immediately on the basis of the Agency's determination
that the facility has not met the compliance schedule.
This approach can be implemented using alternative mechanisms which
impose an independently enforceable obligation on the facility to complete
all corrective action. Four nonexclusive options for implementing this
approach are described below. This policy does not prefer the use of one
mechanism over another and no inference should be drawn from the order in
which the options are listed. EPA retains the sole discretion to grant
removal under the Scheduled Correction Approach and the sole discretion to
determine which mechanism can be used to meet the requirements of the
Scheduled Correction Approach in each case.
CONSENT DECREE MECHANISM: If a facility is subject to a judicially
enforceable federal or state consent decree containing an acceptable
compliance schedule and the facility acknowledges EPA's right to
automatically place it back on the List for failing to meet that schedule,
EPA will have sufficient assurance of the facility's future compliance to
certify that the condition giving rise to mandatory listing has been
corrected.
Discussion: The contempt power of the court and EPA's right to
automatically relist the facility provide the means for enforcing the
facility's obligation under the consent decree to complete corrective
action. The court's contempt powers and EPA's relisting rights also provide
certainty that all corrective action will be accomplished. Verifiability is
provided through an appropriate inspection and an officer of the facility
must submit a written statement, subject to 18 USC Section 1001, certifying
that all corrective action has been taken before EPA will join in a motion
to dissolve the consent decree. If the consent decree is modified without
EPA approval, the Agency will not be bound by the modification and will
retain the right to relist the facility according to the terms originally
agreed upon by EPA.
Attachment WW, p. 6
6
PROBATION ORDER MECHANISM: If, in cases involving a criminal conviction, an
acceptable compliance schedule is included in the probation order issued by
the court and the facility acknowledges EPA's right to automatically place
it back on the List for failing to meet that schedule, EPA will have
sufficient assurance of the facility's future compliance to certify that the
condition giving rise to mandatory listing has been corrected.
Discussion: The contempt power of the court and EPA's right to
automatically relist the facility provide the means for enforcing the
defendant's obligation to complete the corrective action embodied in the
court's probation order and provide certainty that all corrective action
will be completed. Verifiability is provided by inspections to determine if
the defendant is complying with the terms of probation and the defendant or
an appropriate officer of the facility must submit a written statement,
subject to 18 USC Section 1001, or make an oral statement in open court
while subject to sanctions for false statement equivalent to 18 USC Section
1001, certifying that all corrective action has been taken before the
defendant is released from probation. If the terms of probation are
modified without EPA approval, the Agency will not be bound by those
modifications in carrying out the listing program and will retain the right
to relist the facility according to the terms originally agreed upon by EPA.
ADMINISTRATIVE ORDER PLUS PERFORMANCE GUARANTEE MECHANISM: If a facility is
subject to a federal or state Administrative Order that contains an
acceptable compliance schedule, the facility provides an acceptable
performance guarantee and the facility acknowledges EPA's right to
automatically place it back on the List for failing to meet the compliance
schedule, EPA will have sufficient assurance of the facility's future
compliance to certify that the condition giving rise to mandatory listing
has been corrected.
Discussion: This approach provides enforceability through judicial
enforcement of the administrative order and EPA's right to automatically
relist the facility. Certainty that the corrective action will be completed
is provided by a performance guarantee, such as a performance bond, that
makes a third party responsible for completing the corrective action
identified in the administrative order. Verifiability is provided through
appropriate inspections and an officer of the facility will be required to
submit a written statement, subject to 18 USC Section 1001, certifying that
all corrective action has been completed before the administrative order
will be dissolved. If the administrative order is modified without EPA
approval, the Agency will not be bound by those modifications in carrying
out the listing program and will retain the right to relist the facility
according to the terms originally agreed upon by EPA.
Attachment WW, p. 7
-7-
PERMIT AUTHORITY MECHANISM: If a compliance schedule is included in a
permit issued by EPA or the State, the facility provides an acceptable
performance guarantee, and the facility acknowledges EPA's right to
automatically place it back on the List for failing to meet the compliance
schedule, EPA will have sufficient assurance of the facility's future
compliance to certify that the condition giving rise to mandatory listing
has been corrected.
Discussion: Enforceability is provided through the ability to rescind the
permit and relist the facility. Certainty is provided through the
performance guarantee. Verifiability is ensured through the normal
regulatory inspection schedule. An officer of the facility will be required
to submit a written statement, subject to 18 USC Section 1001, certifying
that the corrective action has been completed before EPA will modify the
permit to terminate EPA's right to relist the facility. If the permit is
modified without EPA approval, the Agency will not be bound by those
modifications in carrying out the listing program and will retain the right
to relist the facility according to the terms originally agreed upon by EPA.
APPLICABILITY: The policies and procedures established in this document are
intended solely as guidance for government personnel. They are not
intended, and cannot be relied upon, to create any rights, substantive or
procedural, enforceable by any party in litigation with the United States.
EPA reserves the right to act at variance with these policies and procedures
and to change them at any time without public notice.
Attachment XX
October 8, 1987
CONTRACTOR LISTING POLICY STATEMENT
SUBJECT: Independent verification that requirements for removal have been
met in mandatory listing cases.
QUESTION PRESENTED: Under what circumstances should the Environmental
Protection Agency ( EPA ) require independent verification that the
condition giving rise to mandatory listing has been corrected
before granting a request to remove a facility from the List of
Violating Facilities ( the List )? What form should that
verification take?
ANSWER PRESENTED: A presumption exists that the Agency will always require
independent verification that the facility has corrected the
condition giving rise to the listing in every mandatory listing
case prior to granting a request for removal. That verification
can take the form of an appropriate inspection by EPA, a State, or
an independent, credible third-party.
DISCUSSION AND RATIONALE: The mandatory listing program of Section 306 of
the Clean Air Act ( 42 USC Section 7606 ) and Section 508 of the Clean Water
Act ( 33 USC Section 1368 ), as implemented by the regulations in 40 CFR
Part 15, provides that facilities owned, leased or supervised by a person
convicted of violating Section 113(c)(1) of the Clean Air Act, 42 USC
Section 7413(c)(1), or Section 309(c) of the Clean Water Act, 33 USC Section
1319(c), shall not be utilized in the performance of any nonexempt federal
contract or subcontract. The prohibition against the use of such facilities
continues until the Assistant Administrator for Enforcement and Compliance
Monitoring certifies that "the condition giving rise to mandatory listing
has been corrected."
In order to determine if a facility is entitled to be removed from the
List, EPA will require information showing that the facility has corrected
the condition that gave rise to listing. It is the policy of EPA that this
information must include some form of independent and credible verification
of the corrective action performed by the facility. Verification will
normally take the form of a federal, state or third-party audit or
evaluation of the facility where the violation occurred to ensure that the
facility is operating in compliance with the specific statutory and
regulatory requirements involved in the listing action.
It is recognized that there may cases in which on-site verification is
not appropriate. In those situations, some other credible form of
verification that the facility has corrected the condition that gave rise to
mandatory listing could be substituted.
This policy recognizes that EPA will accept independent, credible
verification provided by third parties, and contemplates that inspections
could be performed by officials of the State in which the facility is
located or by independent contractors.
Attachment XX, p. 2
-2-
However, EPA retains the right, at its sole discretion, to accept or reject,
in whole or in part, information offered in support of a request for removal
and to determine the credibility of that information. Before an inspection
or other form of verification supplied by a third-party would be accepted by
EPA as the sole basis for granting a request for removal, the regional
office for the Region in which the facility is located would have to be
satisfied that the verification was credible and endorse or otherwise concur
in all of the findings of the third party.
The policies and procedures established in this document are intended
solely as guidance for government personnel. They are not intended, and
cannot be relied upon, to create any rights, substantive or procedural,
enforceable by any party in litigation with the United States. EPA reserves
the right to act at variance with these policies and procedures and to
change them at any time without public notice.
CROSS REFERENCES:
Section 306 Clean Air Act, 42 USC Section 7606
Section 508 Clean Water Act, 33 USC Section 1368
Section 113(c)(1) Clean Air Act, 42 USC Section 7413(c)(1)
Section 309(c) Clean Water Act, 33 USC Section 1319(c)
40 CFR Part 15
Contractor Listing Protocols
Policy on Correction ( DATE )
Attachment YY
CONTRACTOR LISTING POLICY STATEMENT
SUBJECT: Definition, for purposes of removal, of the "condition" that gives
rise to mandatory listing.
QUESTION PRESENTED: What constitutes the "condition" that must be corrected
in order for a listed facility to qualify for removal from the
mandatory list?
ANSWERER PRESENTED: The "condition" giving rise to mandatory listing is
defined as: (1) the specific statutory violation(s) alleged in the
indictment or information for which a conviction was obtained,
taking into consideration the regulatory context of the violation;
and (2) is presumed to include environmental harm resulting from
the violation only when that harm is (a) readily identifiable and
demonstrable; (b) directly susceptible to remedial action; (c)
demonstrably linked to the violation(s) which gave rise to the
listing; and (d) segregable from other environmental damage not
related to the instant violation(s).
DISCUSSION AND RATIONALE: The mandatory listing program of Section 306 of
the Clean Air Act ( 42 USC Section 7606 ) and Section 508 of the Clean Water
Act ( 33 USC Section 1368 ), as implemented by the regulations in 40 CFR
Part 15, provides that facilities owned, leased or supervised by a person
convicted of violating Section 113(c)(1) of the Clean Air Act, 42 USC
Section 7413(c)(1), or Section 309(c) of the Clean Water Act, 33 USC Section
1319(c), shall not be utilized in the performance of any nonexempt federal
contract or subcontract. This prohibition continues until the Administrator
"certifies that the condition giving rise to such conviction has been
corrected." 1/
1/ The term "conviction" is not explicitly defined in the statute or
regulations.
This statutory requirement is implemented in the regulations by
requiring the Assistant Administrator for Enforcement and Compliance
Monitoring, as the delegatee of the Administrator, to certify that the
"condition giving rise to mandatory listing has been corrected," before a
facility can be removed from the List.
The Agency is adopting an interpretation of the term "condition" that
will ensure that the subject matter of a removal action extends only to that
conduct for which a conviction was obtained. While one could interpret the
statutes to empower the contractor listing program to require a facility to
comply with all environmental laws or with all requirements of the CAA or
Attachment YY, p. 2
-2-
CWA, the Agency will apply the contractor listing remedy: (1) to ensure
that the specific violative activities that gave rise to the listing have
ceased, and (2) to ensure that the facility has fully embraced the
regulatory program implemented under the statutory authorities relevant to
the violation.
While the statutes identify what acts or failures to act give rise to
criminal violations, those violations must be viewed in the context of the
regulatory program which governs the facility's conduct. This is necessary
for two reasons. First, in many cases, a statutory violation will be based
on the facility's failure to comply with a specific regulatory requirement.
Second, it may often be necessary to consider how a violation fits into the
overall regulatory program to understand the exact nature of the
violation(s) and thus the "condition" which must be corrected.
Consequently, the Agency must determine on a case-by-case basis the specific
action necessary to correct the condition giving rise to mandatory listing.
The statutes can be understood to empower the Agency to conclude that in
all instances the "condition" giving rise to mandatory listing could include
environmental harm that resulted from the violation. The Agency has
determined, however, that for current purposes, the "condition" giving rise
to mandatory listing will be presumed to include environmental harm only
where existing environmental degradation can be linked directly to the
violation(s). Remedial action to ameliorate the environmental harm caused
by a violation may be a prerequisite to removal from the List in cases where
environmental harm is (1) readily identifiable and demonstrable; (2)
directly susceptible to remedial action; (3) demonstrably linked to the
violation(s) which gave rise to the listing; and (4) segregable from other
environmental damage not related to the instant violation(s).
The policies and procedures established in this document are intended
solely as guidance for government personnel. They are not intended, and
cannot be relied upon, to create any rights, substantive or procedural,
enforceable by any party in litigation with the United States. EPA reserves
the right to act at variance with these policies and procedures and to
change them at any time without public notice.
CROSS REFERENCES:
Section 306 Clean Air Act, 42 USC Section 7606
Section 508 Clean Water Act, 33 USC Section 1368
Section 113(c)(1) Clean Air Act, 42 USC Section 7413(c)(1)
Section 309(c) Clean Water Act, 33 USC Section 1319(c)
40 CFR Part 15
Contractor Listing Protocols
Policy on Correction ( DATE )
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