includes a bidder or proposer for a contract which is not yet awarded.

(e) The term "air pollution control agency" means any agency which is defined in section 302(b) or section 302(c) of the Air Act.

(f) The term "borrower" means a prime recipient of a loan.

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

(h) The term "clean water standards" means any enforceable limitation, control, condition, prohibition, standard, or other requirement which is promulgated pursuant to the Water Act or contained in a permit issued to a discharger by EPA, or by a State under an approved program, as authorized by section 402 of the Water Act, or by a local government to ensure compliance with pretreatment regulations as required by section 307 of the Water Act.

(i) The term "compliance" means compliance with clean air or water standards. For the purpose of these regulations, "compliance" shall also mean compliance with a schedule or plan ordered or approved by a court of competent jurisdiction, the Environmental Protection Agency, or an air or water pollution control agency, in accordance with the requirements of the Air or Water Act and regulations issued pursuant thereto.

(j) The term "contract" means any Federal contract for the procurement of personal property or non-personal services (including construction).

(k) The term "contractor" means the prime contractor with whom the Federal Government has contracted for procurement of personal property or non-personal services.

(1) The term "Director" means the Director, Office of Federal Activities, U.S. Environmental Protection Agency, or any person to whom he delegates authority under the regulations in this Part.

(m) The term "facility" means any building, plant, installation, structure, mine, vessel or other floating craft, location or site of operations owned, leased, or supervised by an applicant, contractor, subcontractor, grantee, subgrantee, borrower or subborrower to be utilized in the performance of a contract, grant, or loan. Where a location, or site of operations contains or includes more than one building, plant, installation, or structure, the entire location or site shall be deemed to be a facility, except where the Director determines that independent facilities are co-located in one geographic area.

(n) The term "Governor" means the Governor or princpal executive officer of each State.

(o) The term "grant" means any Federal grant, including grant-in-aid (except where such assistance is solely in the form of general revenue sharing funds, distributed under the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. 1221 et seq.).

(p) The term "grantee" means the prime recipient of a grant.

(q) The term "loan" means a loan of Federal funds.

(r) The term "Order" means Executive Order 11738, dated September 10, 1973 (38 FR 25161), which superseded Executive Order 11602, dated June 29, 1971 (36 FR 12475).

(s) The term "person" means any natural person, corporation, partnership, unincorporated association, State or local government, or any agency, instrumentality, or subdivision of such a government or any interstate body.

(t) The term "State" means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, or the Trust Territories of the Pacific Islands.

(u) The term "subborrower" means any person holding a subloan.

(v) The term "subcontract" means any agreement or arrangement under which any portion of the contractor's obligation is performed, undertaken, or assumed.

(w) The term "subcontractor" means any person holding a subcontract.

(x) The term "subgrant" means any agreement or arrangement under which any portion of the activity or program which is being assisted under the grant is performed, undertaken, or assumed.

(y) The term "subgrantee" means any person holding a subgrant.

(z) The term "subloan" means any agreement or arrangement under which any portion of the business, program, or activity which is being assisted under the loan is performed, undertaken, or assumed.

(aa) The term "United States" as used herein includes the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Trust Territories of the Pacific Islands.

(bb) The term "Water Act" means Federal Water Pollution Control Act, as amended 33 U.S.C. 1251 et seq., as amended by Pub. L. 92-500).

(cc) The term "water pollution control agency" means any agency which is defined in section 502 (1) or section 502(2) of the Water Act.

§ 15.4 Agency responsibilities.

(a) General. Pursuant to the Order, each agency will take appropriate steps to ensure that all officers and employees whose duties entail compliance or comparable functions with respect to contracts, grants, and loans are familiar with the Order and the regulations under this part. Such officers and employees will promptly report to the head of the agency or his designee any condition in any facility involved in a contract, grant, or loan made by an agency which may involve noncompliance with the clean air or water standards and which comes to their attention in the performance of their regular duties. The head of the agency or his designee will promptly transmit such reports to the Director. The Director shall take action as may be appropriate in accordance with §§ 15.24 and 15.20.

(b) Procurement, grant, and loan regulations. Section 4 of the Order provides that agencies responsible for promulgating contract, grant, and loan regulations shall, following consultation with the Administrator, amend such regulations to require, as a condition of entering into, renewing, or extending any nonexempt contract, grant, or loan, compliance with the Air and Water Acts and standards issued pursuant thereto. Pursuant to the authorities vested in the Administrator in section 5 of the Order, agencies responsible for promulgating contract, grant, and loan regulations shall be governed by this part. Such regulations shall be amended to require, no later than July 1, 1975, the use of the provisions set forth below.

(c) Procurement regulations. The Federal Procurement Regulations, Armed Services Procurement Regulation, and to the extent necessary, any supplemental or comparable regulations issued by any agency shall be amended to employ solicitation and contracts provisions which include the following requirements:

(1) A stipulation by the contractor or subcontractors that any facility to be utilized in the performance of any nonexempt contractor subcontract is not listed on the EPA List of Violating Facilities pursuant to § 15.20 as of the date of contract award.

(2) Agreement by the contractor to comply with all the requirements of section 114 of the Air Act and section 308 of the Water Act relating to inspection, monitoring, entry, reports, and information, as well as all other requirements specified in section 114 and section 308 of the Air Act and the Water Act, respectively, and all regulations and guidelines issued thereunder.

(3) A stipulation that as a condition for the award of a contract the applicant or contractor shall notify the awarding official of the receipt of any communication from the Director indicating that a facility to be utilized for the contract is under consideration to be listed on the EPA List of Violating Facilities. Prompt notification shall be required prior to contract award.

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

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

[40 FR 17124, Apr. 16, 1975, as amended at 40 FR 18437, Apr. 28, 1975]

§ 15.5 Exemptions.

(a) Exempted transactions—(1) Transactions $100,000 and under. Con

tracts, subcontracts, grants, subgrants, loans, and subloans not exceeding $100,000 are exempt from this Part.

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

(3) Assistance to abate, control, or prevent environmental pollution. Any grant, subgrant, loan, or subloan, the principal purpose of which is to assist a facility or facilities to comply with any Federal, State, or local law, regulation, limitation, guideline, standard, or other requirement relating to the abatement, control, or prevention of environmental pollution is exempt from this Part.

(4) Exclusion. The foregoing exemptions shall not apply to a proposed contractor whose facility is listed on the basis of § 15.20 (a) (1) (i) and (iv). Utilization of such a facility through the award of a Federal contract is barred by section 306(a) of the Air Act and section 508(a) of the Water Act where a conviction has been obtained pursuant to section 113(c) (1) ́ of the Air Act and section 309 (c) of the Water Act.

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

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

[40 FR 17124, Apr. 16, 1975; 40 FR 18430, Apr. 28, 19751

§ 15.20

Subpart B-Remedies

List of Violating Facilities.

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

(1) Basis for consideration of listing. Federal, State, or local criminal convictions, civil adjudications, or administrative findings of noncompliance may serve as the basis for consideration of listing facilities. However, the listing of a facility based on a State or local civil adjudication or administrative finding shall not be considered unless the Governor of the State has referred the applicant, contractor, grantee, or borrower whose facility has given rise to such adjudication or finding to the Director in accordance with 15.23. The following Federal, State, and local determinations may serve as bases for listing:

(i) Facilities which have given rise to a conviction under section 113 (c) (1) of the Air Act.

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

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

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

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

ards, or facilities which have given rise to a conviction in a State or local court for noncompliance with clean water standards.

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

(2) Listing proceedings. No facility shall be listed until there has been notification to the owner, and where appropriate, the operator, by the Director of his intent to place the facility on the List and the basis therefor, and the representatives of the facility have been afforded an opportunity to confer with the Director and present orally or in writing, and with assistance of counsel, data or information relating to the proposed placement of the facility on the List. Prior to listing on the basis of § 15.20(a) (1) (ii), (iii), (v), or (vi) the Director must determine that there is adequate evidence of continuing or recurring noncompliance with clean air or water standards at the facility. Upon request from the Assistant Administrator for Enforcement, EPA, the Director shall defer listing of a facility. The Director's determination to list shall be in writing and shall summarize the basis for his action.

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

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

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

(c) Removal of facility from List. If a conviction, order, judgment, decree, other form of civil ruling, or finding which has constituted the basis for consideration of listing a facility is reversed or otherwise modified to remove such basis, or if the Assistant Administrator for Enforcement, EPA requests removal, the facility shall be removed promptly from such listing by the Director effective upon receipt of notification of the reversal, modification, or request. Requests for removal of facilities from the List for any other basis including a request from a Governor shall be addressed to the Director. Such request shall be in writing and must contain appropriate evidence that the condition which gave rise to the listing has been corrected. Alternatively, for facilities listed under § 15.20(a) (1) (ii), (iii), (v), and (vi) above, the written request to de-list may be based upon an approved plan of compliance which will ensure the condition which gave rise to the listing will be corrected. Facilities listed on the basis of § 15.20(a) (1) (ii) and (vi) shall be removed from the List one year after the initial date of the listing unless the Director determines theretofore that basis for listing under § 15.20(a) (1) (1), (li), (iv), or (v) has been established. In the event the request for removal is denied, a hearing pursuant to § 15.21 shall be granted by the Director, if requested within ten (10) days of receipt of a notice of denial.

[40 FR 17124, Apr. 16, 1975; 40 FR 18340, Apr. 28, 1975]

§ 15.21 Hearings.

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

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

§ 15.22 Public participation.

(a) Persons who wish to bring an alleged failure of compliance with clean air or water standards under this Part to the attention of the Government should file a statement in writing with the Director, Office of Federal Activities, U.S. Environmental Protection Agency, Washington, D.C. 20460.

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

(c) The Director shall review the statement and within a reasonable period advise the person of the disposition of his statement.

(d) No action under this section shall satisfy the service of notice of intent to file suit requirement pursuant to section 304 of the Air Act or section 505 of the Water Act.

§ 15.23 Agency participation.

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

(b) State participation. If a Governor determines that a facility is in continuing

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or recurring noncompliance with clean air or water standards, the Governor may notify the Director. The Director shall take the necessary steps, under § 15.20, to determine whether listing shall occur.

§ 15.24 Investigation.

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

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