11/26/86
Guidance on Implementing the Discretionary Contractor Listing
Program
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MEMORANDUM
SUBJECT: Guidance on Implementing the Discretionary Contractor Listing
Program
FROM: /s/ 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
I. Purpose
This document establishes Agency policy and procedures for
implementing the discretionary contractor listing program in EPA
enforcement proceedings. It should be read in conjunction with the final
revisions to the contractor listing regulations ( 40 CFR Part 15, 50 FR
36188, September 5, 1985 ), and the guidance document, "Implementation of
Mandatory Contractor Listing" ( General Enforcement Policy No. GM-32,
August 8, 1984 ). The procedures to be followed in all contractor listing
actions are contained in the rule and are summarized in an Appendix to
this document. This policy applies only to discretionary listing
proceedings and supersedes the "Guidance for Implementing EPA's Contractor
Listing Authority" ( General Enforcement Policy No. GM-31, July 18,
1984 ).
The revisions to the contractor listing regulations, together with
this guidance document and other management initiatives, should encourage
greater use of the Agency's listing authority and should expedite the
process for listing a facility.
II. Background
The Clean Air Act ( CAA ), Section 306, and the Clean Water Act
( CWA ), Section 508, as implemented by Executive Order 11738, authorize
EPA to prohibit facilities from obtaining federal government contracts,
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grants or loans ( including subcontracts, subgrants and subloans ), as a
consequence of criminal or civil violations of the CAA or CWA. Commonly
called "contractor listing," this program provides EPA with an effective
administrative tool to obtain compliance with the CAA and CWA where
administrative or judicial action against a facility has failed to do so.
On July 31, 1984, EPA proposed revisions to the contractor listing
regulations ( 40 CFR Part 15 ( 49 FR 30628 ) ) to simplify and clarify the
procedural opportunities which EPA will provide to parties to listing or
removal actions and to provide for mandatory ( i.e., automatic ) listing
of facilities which give rise to criminal convictions under Section
1l3(c)(1) of the CAA or Section 309(c) of the CWA. Final rules were
promulgated on September 5, 1985 ( 50 FR 36188 ).
III. Appropriate Cases for Discretionary Listing Recommendations
In numerous cases, initiation of a listing action has proved to be
effective in achieving more expeditious compliance and case settlements.
While regional offices should consider making contractor listing
recommendations in every case where the criteria of 40 CFR Part 15 are
met, listing is a tool to be used in conjunction with other enforcement
actions. ( See IV. Standard of Proof in Listing Proceedings, page 4. )
The circumstances surrounding each case will dictate whether a listing
action should be initiated. In particular, use of listing may be
appropriate in the following cases:
A. Violations of Consent Decrees
Regional offices should strongly consider making listing
recommendations for all cases of noncompliance with consent decrees under
the CAA or CWA. The recommendation should be prepared at the earliest
possible time after the Region learns of noncompliance with the decree,
but no later than the filing of a motion to enforce the decree.
Initiation of the listing action should be supplementary to and not in
lieu of, a motion to enforce the decree. Where a consent decree covers
CAA or CWA violations as well as violations of other environmental
statutes, such as the Resource Conservation and Recovery Act ( RCRA ) or
the Toxic Substances Control Act ( TSCA ) ( where EPA does not have
contractor listing authority ), a listing recommendation also should be
considered.
B. Continuing or Recurring Violations Following Filed Civil
Judicial Actions
Where EPA has filed a civil judicial enforcement action, the Regional
Office should initiate a listing action at the earliest possible time
after it determines that: (1) noncompliance is ongoing, (2) the defendant
is not making good faith efforts to
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comply, and (3) an expeditious settlement does not appear likely. For
example, a defendant may make a firm settlement offer that is far below
the economic savings it realized from its noncompliance, making settlement
unlikely.
Similarly, where EPA initiates a multi-media civil enforcement action
against violations under the CAA or CWA and other environmental statutes
( such as RCRA or TSCA ), and continuing water or air compliance problems
exist without good faith corrective efforts, the Region should consider
bringing a listing action. Therefore, it is important that all CAA and
CWA counts be included in a multi-media enforcement action.
C. Violations of Administrative Orders
Where noncompliance continues after an administrative order
has been issued under the CAA or CWA, and the Regional Office determines
that the facility is not making sufficient efforts to come into
compliance, a listing recommendation should be considered. Initiation of
a listing action generally should not be in lieu of filing a civil
judicial action to enforce the administrative order, but should support
the civil action. The Regional Office should consider initiating a
listing action at the same time that it files the civil judicial action.
D. Multi-Facility Noncompliance within a Single Company
Contractor listing can be an effective tool to address a pattern of
noncompliance within a single company. Where continuing or recurring CAA
or CWA violations occur at two or more facilities within the same company,
and EPA previously has taken an enforcement action against each, the
Regional Office should consider making listing recommendations in all such
cases.
While each facility's continuing or recurring noncompliance must be
proved separately ( i.e., one may not use one violation from branch
facility A and one violation from branch facility B to constitute the
minimum two violations required ), one listing recommendation describing
noncompliance at two or more facilities may be submitted to the Assistant
Administrator for the Office of Enforcement and Compliance Monitoring
( OECM ). A joint listing proceeding may be held concerning all
facilities. Joint consideration of two or more facilities' violations
will require fewer Agency resources than listing each facility separately.
It will also discourage companies from switching government contracts from
a listed facility to another facility without taking steps to correct the
violations which gave rise to the listing.
To accomplish this, the Regional Office, with headquarters staff
support, should review the EPA enforcement docket to see if a potential
listing candidate has committed CAA or CWA violations at other company
facilities. Note that a company's facilities may be known by the parent
company name or by the names of company
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subsidiaries. Regional offices may obtain information on other company
facilities from Charlene Swibas, Chief, Information Services Section, NEIC
( FTS 776-3219 ), who will search EPA's Facility Index System which lists
this information for all EPA regions, or provide a Dunn and Bradstreet
report containing this information.
The Region may also request data on administrative orders issued
against a company under the headquarters Permit Compliance System ( for
CWA violations ) and the Compliance Data System ( for CAA violations ).
In some cases EPA has issued administrative orders and filed civil
enforcement actions against company facilities which are located in more
than one region. Such multi-regional inquiries may be coordinated with
the Headquarters participating attorney and the Agency's Listing Official.
E. Other Circumstances Where Listing is Appropriate
The regulation provides two other situations where listing may be
appropriate. First, EPA can list a facility after it has issued
a Notice of Noncompliance under Section 120 of the CAA. The threat of
listing in combination with noncompliance penalties can impose a
sufficiently severe economic cost on a facility to encourage efforts to
achieve both compliance and quicker settlements. Second, Regional Offices
may recommend listing when a state or local court convicts any person who
owns, operates, or leases a facility of a criminal offense on the basis of
noncompliance with the CAA or the CWA. They also may recommend listing
when a state or local court has issued an injunction, order, judgement,
decree ( including consent decrees ), or other civil ruling as a result of
noncompliance with the CAA or CWA.
IV. Standard of Proof in Listing Proceedings
It will be the responsibility of the Office of Regional Counsel to
represent the Agency at any listing proceeding ( where one is requested by
the affected facility ). According to 40 CFR Section 15.13(c), "(t)o
demonstrate an adequate basis for listing a facility, the record must show
by a preponderance of the evidence that there is a record of continuing or
recurring non-compliance at the facility named in the recommendation to
list and that the requisite enforcement action has been taken."
"Requisite enforcement action" can be established by reference to an
issued administrative or court order, or a filed civil judicial action.
"Continuing or recurring" violations are understood to mean two or more
violations of any standard at a facility, which violations either occur or
continue to exist over a period of time. Such a violation occurs even
when different standards are violated and time has elapsed between
violations. Thus, in a listing proceeding, it is not necessary to prove
all violations of CAA or CWA standards alleged in the underlying
enforcement action. Nonetheless,
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the regional attorney must carefully review the sufficiency of the
evidence and evaluate anticipated defenses.
V. Fairness Concerns in EPA Use of Contractor Listing
It is the intent of this guidance document to encourage the use of
the Agency's contractor listing authority in appropriate cases. However,
it must be recognized that listing is a severe sanction. Before making a
recommendation in any case, the Regional Office should determine that the
continuing or recurring noncompliance involves clearly applicable CAA or
CWA standards. Likewise, Agency enforcement personnel must be careful in
using listing terminology during discussions with defendants. During
settlement negotiations, for example, it is certainly proper for EPA to
advise a defendant of the range of available EPA enforcement authorities,
including contractor listing. However, EPA personnel must distinguish
between a listing recommendation ( made by a "recommending person,"
usually the Regional Administrator, to the Assistant Administrator for
OECM ), a notice of proposed Listing by the Agency to the affected
facility ( which is sent by the Listing Official after a preliminary
decision to proceed is made by the Assistant Administrator for OECM ), and
a final decision to list which is made either by an Agency Case Examiner
at the end of a listing proceeding, or by the Assistant Administrator for
OECM if no listing proceeding is requested. Where appropriate, EPA
personnel should explain that the Regional Administrator's listing
recommendation does not constitute a final Agency decision to list.
VI. Press Releases on Contractor Listing Actions
EPA will use press releases and other publicity to inform existing
and potential violators of the CAA and the CWA that EPA will use its
contractor listing authority in appropriate situations. The November 21,
1985, "Policy on Publicizing Enforcement Activities" ( GM-46 ), states
that "(i)t is EPA policy to issue press releases when the Agency: (1)
files a judicial action or issues a major administrative order or
complaint ( including a notice of proposed contractor listing and the
administrative decision to list )...." As discussed in that policy, the
press release should be distributed to both the local media in the area of
the violative conduct and the trade press of the affected industry.
VII. Coordination with the Department of Justice
To ensure that information presented during a listing proceeding will
not compromise the litigation posture of any pending legal action against
a party, EPA will coordinate with the Department of Justice ( DOJ ) before
a recommendation to list is made to the Assistant Administrator for OECM.
If the recommending party is an EPA regional office official, he or she
shall coordinate with the appropriate DOJ attorney before a recommendation
is submitted to the Listing Official. He or she shall also provide the
DOJ attorney's comments to the Listing Official as part of the
recommendation
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package. If the recommending party is not an EPA official, the Listing
Official shall coordinate with the EPA Office of Regional Counsel and the
appropriate DOJ attorney before a recommendation to list is presented to
the Assistant Administrator for OECM.
VIII. Applicability of Contractor Listing to Municipalities
Municipalities are subject to listing under appropriate cir-
cumstances. State and local governments and other municipal bodies are
specifically identified by 40 CFR Section 15.4 as "persons" whose
facilities may be listed. The standards for recommending that a municipal
facility be listed are the same as those for listing other facilities.
Listing may not be the most effective enforcement tool in many municipal
cases because often the only federal funds received by a municipal
facility are grant funds to abate or control pollution, which are exempted
from the listing sanction by 40 CFR Section 15.5. However, listing still
should be considered in cases where a municipal facility receives
nonexempt funds or where the principles underlying the listing authority
otherwise would be furthered by a recommendation to list.
IX. Use of Listing in Administrative Orders
Enforcement offices may wish to inform violating facilities early in
the enforcement process of the possibility of being listed. Many
facilities do not know about the listing sanction; such knowledge may
provide additional impetus for a facility to take steps to come into
compliance. For example, some EPA regions notify facilities whose
violations make them potential candidates for listing of this possibility
in the cover letter which accompanies an administrative order requiring
them to take action to correct their noncompliance.
X. Obtaining Information Concerning Government Contracts Held by a
Facility Under Consideration for Listing
After an EPA recommending person, usually the Regional Administrator,
has submitted a listing recommendation to the Listing Official, the
regional office attorney handling the case may require the facility to
provide a list of all federal contracts, grants, and loans ( including
subcontracts, subgrants, and subloans ). To insure that such a
requirement is not imposed prematurely, the regional office attorney
should require this information from a facility only after advising the
Listing Official of his or her intention to do so. Requiring this
information from the facility is not a prerequisite for listing a
facility.
Requiring this information from a facility may be accomplished by
telephone or through a letter similar to the models provided in
Attachments D and E. Attachment D is a model letter requesting
information from a facility which is violating an administrative order
issued under the authority of the Clean
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Water Act for violating its National Pollutant Discharge Elimination
System ( NPDES ) permit. Attachment E is a letter to a faciLity which
EPA and the Department of Justice have filed a civil suit against for
violating the Clean Air Act. Regional office attorneys may elect to have
such a request letter serve as notification to the facility that EPA is
considering instituting a listing action, or they may wish to inform the
facility before sending such a letter. Which approach is taken will
depend on the regional office attorney's judgment of the notification's
effects on the overall case against the facility.
XI. Headquarters Assistance in Preparing and Processing Listing
Recommendation
In order to encourage the use of the contractor listing authority
in appropriate cases, OECM staff have been directed to assist regional
offices in preparing listing recommendations. Attached are model listing
recommendations indicating the level of detail and support that should be
provided with recommendations. ( See Attachments A, B, and C for model
listing recommendations. ) Where a listing recommendation is sufficient,
the Assistant Administrator for OECM will decide whether to proceed with
the listing action under Section 15.11(c) ( i.e., by directing the Listing
Official to issue a notice of proposed listing to the affected facility )
within two weeks after receiving the recommendation. Questions concerning
contractor listing may be directed to the Agency Listing Official, Cynthia
Psoras, LE-130A, FTS 475-8785, E-Mail Box EPA2261.
Attachments
cc: John Ulfelder
Senior Enforcement Counsel
Associate Enforcement Counsel for Air
Associate Enforcement Counsel for Water
Director, Office of Water Enforcement and Permits
Director, Stationary Source Compliance Division
Director, Office of Compliance Analysis and Program Operations
Director, NEIC
Director, Water Management Division ( Regions I - X )
Director, Air Management Division ( Regions I, III, V and IX )
Director, Air and Waste Management Division ( Regions II and VI )
Director, Air, Pesticides and Toxics Management
Division ( Region IV )
Director, Air and Toxics Division ( Regions VII, VIII and X )
David Buente, Department of Justice ( DOJ )
Nancy Firestone, DOJ
Appendix
The Listing Program and Final Revisions to 40 CFR Part 15
A. Mandatory Listing
If a violation at a facility gives rise to a criminal conviction
under Section 113(c)(1) of the CAA or Section 309(c) of the CWA, listing
of the facility is mandatory ( and effective upon conviction under 40 CFR
Section 15.10 ). As soon as a conviction occurs, the Director of the
Office of Criminal Enforcement, within the Office of Enforcement and
Compliance Monitoring ( OECM ), must verify the conviction and notify the
Listing Official. The Listing Official sends written notification to the
facility and to the Federal Register. Both documents must state the basis
for and the effective date of the mandatory listing.
Removal from the mandatory list may occur only if: (1) the Assistant
Administrator certifies that the facility has corrected the condition that
gave rise to the criminal conviction under Section 113(c)(1) of the CAA or
Section 309(c) of the CWA, or (2) a court has overturned the criminal
conviction. The August 8, 1984, memorandum, "Implementation of Mandatory
Contractor Listing," ( GM-32 ) discusses the procedures for mandatory
listing in more detail.
B. Discretionary Listing
1. Basis for Discretionary Listing
The following enforcement actions may serve as a basis for
discretionary listing if there is also a record of continuing or recurring
noncompliance at a facility:
a. A federal court finds any person guilty under Section 113(c)(2) of
the CAA, if that person owns, leases, or supervises the facility.
b. A state or local court convicts any person of a criminal offense on
the basis of noncompliance with clean air or clean water standards if
that person owns, leases, or supervises the facility.
c. A federal, state, or local court issues an injunction, order,
judgment, decree ( including consent decrees ), or other form of
civil ruling as a result of noncompliance with the CAA or CWA at the
facility.
d. The facility is the recipient of a Notice of Noncompliance under
Section 120 of the CAA.
e. The facility has violated an administrative order under:
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o CAA Section 113(a)
o CAA Section 113(d)
o CAA Section 167
o CAA Section 303
o CWA Section 309(a)
f. The facility is the subject of a district court civil enforcement
action under:
o CAA Section 113(b)
o CAA Section 167
o CAA Section 204
o CAA Section 205
o CAA Section 211
o CWA Section 309(b)
2. The Discretionary Listing Process
a. Listing Recommendation and Notice of Proposed Listing
The discretionary listing process begins when a "recommending person"
files a listing recommendation with the Listing Official. Recommending
persons may include any member of the public, Regional Administrators, the
Assistant Administrator for Air and Radiation, the Assistant Administrator
for Water, the Associate Enforcement Counsel for Air, the Associate
Enforcement Counsel for Water, and the Governor of any State. The
recommendation to list: (1) states the name, address, and telephone
number of the recommending person; (2) identifies the facility to be
listed, and provides its street address and mailing address; and (3)
describes the alleged continuing or recurring noncompliance, and the
requisite enforcement action ( see 40 CFR Section 15.11(b) ). The
recommendation to list should describe the history of violations in
detail, including the specific statutory, regulatory, or permit
requirements violated. In addition, regional offices may include as
attachments to the listing recommendation documents prepared for other
purposes, such as complaints, litigation reports, and other explanatory
material which describes the nature of the violations. ( See attachments
for model listing recommendations. )
The Listing Official must determine whether the recommendation meets
the requirements of Section 15.11(b). If the recommendation is sufficient
and the Assistant Administrator for OECM decides to proceed under Section
15.11(c), the listing official will contact the regional office to ensure
that it still wishes to proceed. If the decision is made to proceed, the
listing official provides notice of the proposed listing to the owner or
operator of the affected facility and provides the owner or operator of
the facility 30 days to request a listing proceeding. A listing
proceeding is not a formal hearing; rather, it is an informal
administrative proceeding presided over by an Agency Case Examiner. If
the facility's owner or operator requests a listing proceeding, the
Listing Official must schedule it and notify the recommending person and
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the owner or operator of the date, time, and location of the proceeding.
The Assistant Administrator designates a Case Examiner to preside over
the, listing over the listing proceeding. l/
1/ If the owner or operator of the facility does not make a timely
request for a listing proceeding, the Assistant Administrator will
determine whether to list the facility based upon the recommendation
to list and any other available information.
b. Listing Proceeding
The Federal Rules of Civil Procedure and Evidence are not used during
listing proceedings. The Agency and the facility may be represented by
counsel and may present relevant oral and written evidence. With the
approval of the Case Examiner, either party may call, examine, and
cross-examine witnesses. The Case Examiner may refuse to permit
cross-examination to the extent it would: (1) prematurely reveal
sensitive enforcement information which the government may legally
withhold, or (2) unduly extend the proceedings in light of the usefulness
of any additional information likely to be produced ( see Section
15.13(b) ). A transcript of the proceeding along with any other evidence
admitted in the proceeding constitutes the record. The Agency must prove
each element of a discretionary listing by a preponderance of the evidence
( see Section 15.13(c) ).
The Case Examiner must issue a written decision within 30 calendar
days after the proceeding. The party adversely affected may appeal the
decision to the General Counsel. The appeal, which is filed with the
Listing Official, must contain a statement of: (1) the case and the facts
involved, (2) the issues, and (3) why the decision of the Case Examiner is
not correct based on the record of the proceeding considered as a whole.
The General Counsel must issue a final decision, in writing, as soon as
practicable after reviewing the record. The Listing Official then must
send written notice of the decision to the recommending person and to the
facility, and must publish the effective date of the listing in the
Federal Register if the General Counsel upholds the Case Examiner's
decision to list.
c. Removal from the List of Violating Facilities
Removal from the List of Violating Facilities can occur in any of the
following circumstances:
1. Upon reversal or other modification of the criminal conviction
decree, order, judgment, or other civil ruling or finding which formed
the basis for the discretionary listing, where the reversal or
modification removes the basis for the listing;
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2. If the Assistant Administrator for OECM determines that the
facility has corrected the condition(s) which gave rise to the
listing;
3. Automatically if, after the facility has remained on the
discretionary list for one year on the basis of Section 15.11(a)(4) or
Section 15.11(a)(5) and a basis for listing under Sections
15.11(a)(l), (2), or (3) does not exist; or
4. If the Assistant Administrator for OECM has approved a plan for
compliance which ensures correction of the condition(s) which gave
rise to the discretionary listing.
The original recommending person or the owner or operator of the
facility may request removal from the list. The Assistant Administrator
for OECM the must review the request and issue a decision as soon as
possible. The Listing Official then must transmit the decision to the
person requesting removal.
If the Assistant Administrator for OECM denies a request for removal,
the requesting person may file a written request for a removal proceeding
to be conducted by a Case Examiner designated by the Assistant
Administrator. The Federal Rules of Civil Procedure and Evidence are not
used during a removal proceeding. The Case Examiner's written decision
must be based solely on the record of the removal proceeding.
Within 30 calendar days after the date of the Case Examiner's
decision, the owner or operator of the facility may file with the Listing
Official a request for review by the Administrator. The Administrator
will determine if the Case Examiner's decision is correct based upon the
record of the removal proceeding considered as a whose. The Administrator
then must issue a final written decision.
Attachment A
MODEL LISTING RECOMMENDATION
BASED ON ADMINISTRATIVE ENFORCEMENT ACTION
DATE: 10/01/86
SUBJECT: Recommendation to List Violating Facility
FROM: Regional Administrator, Region XI
TO: Cynthia Psoras
Listing Official
LegaL Enforcement Policy Division ( LE - 130A )
The purpose of this memorandum is to recommend that the ( name of
facility and type of operations conducted at the facility ) owned and
operated by John Doe at ( street address, city and state ) be placed on
the EPA List of Violating Facilities because of violations of clean air
standards. Information concerning the recurring violations and the
history of action taken thus far by the Agency is set forth below. Copies
of pertinent supporting materials are attached. ( Attach technical
documents describing the violation, the administrative order, and other
documents describing the enforcement action taken. ).
This plant is subject to the New Source Performance Standards
( NSPS ) for Asphalt Concrete Plants. 40 CFR Part 60, Subpart I ( 1986 ).
On July 5, 1985, the Region XI Director, Air Management Division,
notified ( owner and operator ) that on the basis of performance tests
conducted December 19, 1984, the facility was in violation of 40 CFR
60.92(a)(1), in that it was discharging gases into the atmosphere, and
those gases contained 256.5 milligrams of particulate matter per dry
standard cubic meter ( 0.114 grain per dry standard cubic foot ). The
allowable discharge of particulate matter into the atmosphere is 90
milligrams per dry standard cubic meter ( 0.04 grain per dry standard
cubic foot ).
On August 14, 1985, the Region XI Regional Administrator issued an
Administrative Order pursuant to Section 113(a)(3) of the Clean Air Act.
That order required, in part, that ( name of facility ) operate its
( specific portion of the plant or processes causing the violations in
compliance with the NSPS for Asphalt Concrete Plants, 40 CFR Part 60,
Subpart I, and to conduct performance tests for emissions of particulate
matter within sixty days following the effective date of the
Administrative Order.
Performance tests were completed on September 1, 1985, and the
particulate emissions were 373.5 milligrams per dry standard cubic meter
( 0.166 grain per dry standard cubic foot ). Thus, ( name of facility )
is not in compliance, and has violated the Administrative Order. Further,
the violation
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of the NSPS has been a continuing violation in that the particulate
emissions have been greater than the permissible limits since the December
19, 1985, test date.
The recommending person for this listing recommendation is Regional
Administrator, Region XI, EPA, Government Office Building, City, 51st
State; her telephone number is ( FTS ) 123-4567.
This action is authorized under discretionary listing, 40 CFR
15.11(a)(4) ( 1986 ). It meets the regulations' two requirements that:
there is "continuing or recurring noncompliance with clean air standards
... at the facility recommended for listing" and that the facility has
violated an administrative order issued under Section 113(a) of the Clean
Air Act.
If you have any questions, please contact Attorney, at ( FTS )
123-4568, or Engineer, at ( FTS ) 123-4569.
Attachments
( technical documents, Administrative Order, documents describing the
previous enforcement actions taken ).
Attachment B
MODEL LISTING RECOMMENDATION
BASED ON JUDICIAL ENFORCEMENT ACTION
MEMORANDUM
SUBJECT: Recommendation for Listing
FROM: Regional Administrator, EPA Region 12
TO: Cynthia Psoras
Listing Official
Legal Enforcement Policy Division, LE - 130A
This is a recommendation that the ( facility name and address ) be
placed on the EPA List of Violating Facilities, pursuant to Section 306 of
the Clean Air Act, Executive Order 11738, 40 CFR Part 15, and the October
1986 guidance from the Assistant Administrator for Enforcement and
Compliance Monitoring. This action is authorized under 40 CFR 15.11(a)(6)
( 1986 ). This recommendation is baaed on violations alleged in the civil
action currently bring pursued against ( facility name ) in the United
States District Court for the Fifty Second State. ( Facility name )
operates four coal-fired boilers ( boilers nos. 2-5 ) at the ( facility )
without adequate air pollution control equipment.
As indicated in the attached counterclaim, motion for partial summary
judgment, and affidavits, ( facility name ) has been in violation of the
Federal New Source Performance Standards ( NSPS ) for particulate
emissions since startup of the boilers, more than five years ago. The
United States issued a notice of violation to ( facility name ) regarding
mass emission violations at the ( facility name ) boilers nos. 2 - 5 on
May 30, 1981. ( Facility name ) has not substantially modified the
particulate emission control system for these four boilers since that
time. Particulate stack testing conducted as recently as January 1986
shows continuing violations of the boilers. The complaint, attached to
this memo, was filed by defendant on June 15, 1985. The United States
then filed a counterclaim on August 1, 1985. The Government's Motion for
Partial Summary Judgment as to liability, filed on or about December 12,
1985, was granted in part on April 8, 1986, wherein the court denied
( facility name's ) claim that the four boilers were not covered by NSPS.
The remainder of the Motion, requesting judgment on the counterclaim for
enforcement, is pending before the court.
The ( facility name ) plant is located in ( City and State ) which is
a secondary nonattainment area for Total Suspended Particulates.
The attached affidavits contain summaries of mass violations at the
( facility name's ) boilers nos. 2-5. All data summarized
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were obtained from stack tests performed on the ( facility name ) boilers
by the ( owner and operator corporation ) and stack tests performed by a
consultant retained by the ( owner and operator corporation ).
Based on the information contained above and in the attachments to
this recommendation, I request that the Assistant Administrator for
Enforcement and Compliance Monitoring find that there is adequate evidence
of continuing or recurring violations of Clean Air Act standards at the
( facility name ) and place this facility on the EPA List of Violating
Facilities pursuant to the procedures set forth in 40 CFR Part 15.
For further information please contact Attorney on ( FTS ) 987-654 or
Technical Specialist ( FTS ) 987-655.
( Signed )
Regional Administrator
Attachments
( technical documents, consultant's report, documents describing the
judicial enforcement action ).
Attachment C
ATTACHMENT TO MODEL LISTING RECOMMENDATION
BASED ON JUDICIAL ENFORCEMENT ACTION
MEMORANDUM
SUBJECT: Attachment to Recommendation for Listing
FROM: Regional Administrator, EPA Region 12
TO: Cynthia Psoras
Listing Official
Legal Enforcement Policy Division ( LE-103-A )
Description of Violations
The four coal-fired boilers at ( facility name ) are subject to 40
CFR part 60, Subpart D, "Standards of Performance for Fossil-Fuel-Fired
Steam Generators for which Construction is Commenced after August 17,
1971," and 40 CFR part 60, Subpart A, "General Provisions," which are
applicable to all categories of sources for which New Source Performance
Standards ( NSPS ) have been promulgated.
Subpart D includes emission limits for particulate matter, opacity,
sulfur dioxide and nitrogen oxides ( 40 CFR Section 60.42 ). It also
requires installation, calibration, maintenance and operation of
continuous emission monitoring ( "CEM" ) systems for opacity, sulfur
dioxide and nitrogen oxides ( 40 CFR Section 45(a) ). Each of the
facility's boilers nos. 2, 3, 4, and 5 is subject to these emission
limitations and CEM requirements. When ( owner and operator ) constructed
the facility's boilers 2-5 between 1978 and 1980, it equipped each of the
boilers with a double alkali venturi scrubber for combined control of
sulfur dioxide and particulate matter. These scrubbers successfully
control sulfur dioxide emissions but they have never achieved the Subpart
D particulate emission limit, 40 CFR Section 60.42(a)(1). ( Owner and
operator ) also equipped the boilers with continuous monitoring systems
for opacity, sulfur dioxide and oxygen ( it was exempt from the NOX CEM
requirement, pursuant to 40 CFR Section 60.45(b)(3) ). The sulfur dioxide
monitoring system has never operated properly.
Subpart A includes requirements related to operation and maintenance
of CEM systems ( 40 CFR Section 60.13 ); notification and recordkeeping
( 40 CFR Section 60.7 ) and performance testing ( 40 CFR Section 60.8 ).
Under 40 CFR Section 60.13, all CEM systems installed under applicable
subparts must:
a. be installed and operational prior to conducting, performance tests
( emissions tests ) - Section 60.13(b);
b. Undergo a performance evaluation ( monitor
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certification test ) during or within 30 days of the performance tests
- Section 60.13(c);
c. undergo regular calibration and maintenance - Section 60.13(d)(1).
( Facility name ) violated all these provisions. It never performed a
monitor performance evaluation on, and has never operated and maintained,
its sulfur dioxide CEM system.
Under 40 CFR Section 60.7, owners and operators of NSPS sources must:
a. Notify EPA of the anticipated date of initial start-up of an affected
facility postmarked not less than 30 days prior to such date -
Section 60.7(a)(2);
b. Notify EPA of the actual date of initial start-up postmarked within
15 days of such date Section 60.7(a)(3);
c. Submit quarterly reports of "excess emissions" ( emissions exceeding
applicable emission limits ) as measured by continuous monitoring
systems - Section 60.7(c).
( Facility name ) failed to notify EPA of the anticipated or actual
start-up of boilers 4 and 5. ( Facility name ) has never submitted any
excess emissions reports to EPA.
Under 40 CFR Section 60.8, owners / operators are required to
conduct performance tests of affected facilities not later than 180 days
after initial start-up. ( Facility name ) violated this provision with
respect to boilers 4 and 5.
It is ( facility name's ) customary practice to operate one or more of
the boilers during the winter heating season. The steam that is generated
is used for space heating and production. The boilers are not operated,
or are operated using only natural gas as fuel, in the warmer months.
Each heating season since the NOV was issued ( in August 1980 ), boilers 2
and 3 have been regularly operated. Each day a boiler is operated,
particulate emissions from that boiler exceed the limit, and violations of
the CEM regulations occur because the sulfur dioxide CEM remains
inoperative. This winter, ( facility name ) has informed us that they
will not operate the boilers using coal for fuel and will only use natural
gas. However, they have made no commitment to permanently cease operating
the boilers using coal.
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The Motion for Summary Judgment
On September 25, 1985, the District Court for the Central District of
the Fifty Second State ruled on EPA's motiion for partial summary judgment
with respect to the Agency's counterclaim for enforcement. EPA's motion
dealt only with the alleged violations of the subpart D particulate
emissions limit. It did not deal with the monitoring, notification and
reporting violations. EPA introduced into evidence six stack tests
conducted on boilers nos. 2-5, all of which showed the tested boiler to be
exceeding the limit. The court ruled that on the six days on which those
tests occurred, ( facility name ) violated the subpart D particulate
standard. Enclosed is a copy of the transcript of the September 26, 1985,
hearing on the Motion for Summary Judgment. Judge X ruled from the bench
following oral argument by the parties. See pages 21-25. The judge
stated that he would issue a written order, but he has not done so yet.
We will furnish you with a copy upon receipt.
An evidentiary hearing is scheduled for March 1, 1985, to establish
days of violation other than the six stack test days.
( signed )
Regional Administrator
Attachment D
MODEL LETTER TO A FACILITY VIOLATING THE
CLEAN WATER ACT REQUESTING A LIST OF ITS
FEDERAL CONTRACTS, GRANTS, AND LOANS
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. John Smith
President
XYZ Corporation
1000 Corporate Lane
Fifty Second State 12345
Dear Mr. Smith:
The XYZ Corporation was issued National Pollutant Discharge
Elimination System ( NPDES ) permit number FS0100524 by the Regional
Administrator of EPA, Region XI, pursuant to Title 33, United States Code,
Section 1342. This permit authorizes the discharge of pollutants into the
Blue River in accordance with the effluent limitations, monitoring
requirements, and other provisions of the permit. On May 6, 1986, EPA
issued Administrative Order #86-1570 to the XYZ Corporation pursuant to
the authority granted under Title 33, United States Code, Section
1319(a)(3) for exceeding the effluent limitations for biochemical oxygen
demand and total suspended solids. As discussed in our letter to you of
July 6, 1986 you are currently in violation of this Administrative Order.
Under the provisions of Title 33, United States Code, Section 1368(a),
a facility owned, leased, or supervised by a "person" ( defined to include
a corporation such as XYZ Corporation ) who commits "continuing or
recurring" violations of the Clean Water Act may be placed on a "List of
Violating Facilities" and prohibited from receiving Federal contracts,
grants and loans. The prohibition under Title 33, United States Code,
Section 1368(a) is implemented by the Environmental Protection agency
(EPA) under regulations promulgated at Title 40 of the Code of Federal
Regulations Part 15, entitled "Administration of The Clean Air Act and
Federal Water Pollution Control Act with Respect to Federal Contracts,
Grants, or Loans." These regulations state that a facility may be placed
on the "List of Violating Facilities" for a violation of an administrative
order under Title 33, United States Code, Section 1319(a).
Under Title 33, United States Code, Section 1318, EPA has authority to
require the owner or operator of any point source to make such reports and
to provide such other information as are deemed reasonably necessary to
carry out the
- 2 -
objectives of the Clean Water Act, Title 33, United States Code, Section
1251 et seq.
Accordingly, for the purposes of implementing Title 33, United States
Code, Section 1368(a), EPA hereby invokes its authority under Title 33,
United States Code, Section 1318, and requires XYZ Corporation, as the
owner and operator of a point source, identified in NPDES permit number
FS0100524,to provide the information specified below no later than 15
calendar days from receipt of this letter. The submittal should be
addressed to:
Regional Attorney
Office of Regional Counsel
U.S. Environmental Protection Agency
Region XI
Information to be Submitted to EPA
1. Identify, by contract number, contracting agency and contract date,
all Federal contracts held by the facility for the procurement of personal
property or nonpersonal services, for which XYZ Corporation is either the
prime contractor or subcontractor.
2. Identify, by grant number, granting agency, and grant date, all
Federal grants received by the facility, including grants-in-aid, for
which XYZ Corporation is either the grantee ( prime recipient of a grant )
or a subgrantee ( the holder of an agreement or an arrangement under which
any portion of the activity or program is being assisted under the
grant ).
3. Identify, by loan number, lending agency, and loan date, all Federal
loans for which XYZ Corporation is a borrower or subborrower.
4. Identify, by bid number, agency and date, all bids submitted by XYZ
Corporation for future Federal contracts or subcontracts.
5. Identify, by grant application number, agency and date, all grant
applications submitted by XYZ Corporation for any future Federal grant or
subgrant.
6. Identify, by loan application number, agency and date, all loan
applications submitted by XYZ Corporation for future Federal loans or
subloans.
7. Identify, by percentage estimate, the extent to which XYZ
Corporation's business is connected, in any degree, to Federal contracts,
grants and loans.
- 3 -
8. Identify the effect, if any, of the prohibition of Title 33, United
States Code, Section 1368(a), upon the business of XYZ Corporation.
This inquiry does not constitute an official notification that XYZ
Corporation is under consideration for placement on the "List of Violating
Facilities." If deemed appropriate, such a notice will be initiated by
the Listing Official, Office of Enforcement and Compliance Monitoring,
EPA.
Under Title 33, United States Code, Section 1318(b), XYZ Corporation
may assert a business confidentiality claim with respect to part or all of
the information submitted to EPA in the manner described at 40 CFR Section
2.203(b). Information covered by such a claim will be disclosed by EPA
only to the extent, and by means of the procedures set forth in 40 CFR
Part 2, Subpart B. If no such claim accompanies the information when it
is submitted to EPA, it may be made available to the public by EPA without
further notice to XYZ Corporation.
Care should be taken in ensuring that the response to this letter is
complete and accurate because Title 33, United States Code, Section
1319(c)(2) provides criminal penalties for knowingly or willfully
submitting false information to EPA in any report required by the Clean
Water Act. In addition, Title 18, United States Code, Section 1001
provides criminal penalties for knowingly or willfully submitting false
information to a federal official.
This information request is not subject to the approval requirements
of the Paperwork Reduction Act of 1980, Title 44 United States Code,
Sections 3501 et seq.
Should you have any questions, please contact me at (123) 456-7890.
Sincerely yours,
Regional Attorney
Region XI
Attachment E
MODEL LETTER TO A FACILITY VIOLATING THE
CLEAN AIR ACT REQUESTING A LIST OF ITS
FEDERAL CONTRACTS, GRANTS, AND LOANS
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. John Smith
President
ABC Corporation
1000 Corporate Lane
Fifty Third State 12345
Dear Mr. Smith:
On May 5, 1986, in the Southern District of the Fifty Third State, the
Department of Justice instituted a civil suit against the ABC Corporation
for continuing and recurring violations of Title 42, United States Code,
Section 7413(b).
Title 40 of the Code of Federal Regulations, Part 15, entitled
"Administration of The Clean Air Act and Federal Water Pollution Control
Act with Respect to Federal Contracts, Grants, or Loans," promulgated
pursuant to Title 42, United States Code, Section 7606(a) and Executive
Order 11738 ( 38 FR 25161, September 12, 1973 ) authorize EPA to establish
a "List of Violating Facilities." Facilities on this List are prohibited
from receiving Federal contracts, grants, and loans. A facility who
commits "continuing or recurring" violations of the Clean Air Act may be
placed on the List. These regulations state that a facility may be placed
on the List after EPA, through the Department of Justice, has filed a
civil enforcement action in federal court under Title 42, United States
Code, Section 7413(b).
Under Title 42, United States Code, Section 7414(a), EPA has authority
to require the owner or operator of any emission source to make such
reports and to provide such other information as are deemed reasonably
necessary to carry out the objectives of the Clean Air Act, Title 42,
United States Code, Section 7401 et seq.
Accordingly, for the purposes of implementing Title 42, United States
Code, Section 7606(a), EPA hereby invokes its authority under Title 42,
United States Code, Section 7414, and requires ABC Corporation as the
owner and operator of a emission source, to provide the information
specified below no later than 15 calendar days from receipt of this
letter.
- 2 -
The submittal should be addressed to:
Regional Attorney
Office of Regional Counsel
U.S. Environmental Protection Agency
Region XI
Information to be Submitted to EPA
1. Identify, by contract number, contracting agency and contract date,
all Federal contracts held by this facility for the procurement of
personal property or nonpersonal services, for which ABC Corporation is
either the prime contractor or subcontractor.
2. Identify, by grant number, granting agency, and grant date, all
Federal grants received by this facility, including grants-in-aid, for
which ABC Corporation is either the grantee ( prime recipient of a grant )
or a subgrantee ( the holder of an agreement or an arrangement under which
any portion of the activity or program is being assisted under the
grant ).
3. Identify, by loan number, rending agency, and loan date, all Federal
loans for which ABC Corporation is a borrower or subborrower.
4. Identify, by bid number, agency and date, all bids submitted by ABC
Corporation for future Federal contracts or subcontracts.
5. Identify, by grant application number, agency and date, all grant
applications submitted by ABC Corporation for any future Federal grant or
subgrant.
6. Identify, by loan application number, agency and date, all loan
applications submitted by ABC Corporation for future Federal loans or
subloans.
7. Identify, by percentage estimate, the extent to which ABC
Corporation's business is connected, in any degree, to Federal contracts,
grants and loans.
8. Identify the effect, if any, of the prohibition of Title 42, United
States Code, Section 7606(a), upon the business of ABC Corporation.
This inquiry does not constitute an official notification that ABC
Corportion is under consideration for placement on the "List of Violating
Facilities." If deemed appropriate, such a notice will be initiated by
the Listing Official, Office of Enforcement and Compliance Monitoring,
EPA.
- 3 -
Under Title 42, United States Code, Section 7414(c), ABC Corporation
may assert a business confidentiality claim with respect to part or all of
the information submitted to EPA in the manner described at 40 CFR Section
2.203(b). Information covered by such a claim will be disclosed by EPA
only to the extent, and by means of the procedures set forth in 40 CFR
Part 2, Subpart B. If no such claim accompanies the information when it
is submitted to EPA, it may be made availabLe to the public by EPA without
further notice to ABC Corporation.
Care should be taken in ensuring that the response to this letter is
complete and accurate because Title 42, United States Code, Section
7413(c)(2) provides criminal penalties for knowingly submitting false
information to EPA in any report required by the Clean Air Act. In
addition, Title 18, United States Code, Section 1001 provides criminal
penalties for knowingly or willfully submitting false information to a
federal official.
This information request is not subject to the approval requirements
of the Paperwork Reduction Act of 1980, Title 44 United States Code,
Sections 3501 et seq.
Should you have any questions, please contact me at ( 123 ) 456-7890.
Sincerely yours,
Regional Attorney
Region XI
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