PART 15--ADMINISTRATION OF THE CLEAN AIR ACT AND THE CLEAN WATER ACT WITH RESPECT TO CONTRACTS, GRANTS, AND LOANS--LIST OF VIOLATING FACILITIES Subpart A--Administrative Matters Sec. 15.1 Policy and purpose. 15.2 Scope. 15.3 Administrative responsibility. 15.4 Definitions. 15.5 Exemptions. Subpart B--Procedures for Placing a Facility on the List of Violating Facilities 15.10 Mandatory listing. 15.11 Discretionary listing. 15.12 Notice of filing of recommendation to list and opportunity to have a listing proceeding. 15.13 Listing proceeding. 15.14 Review of the Case Examiner's decision. 15.15 Effective date of discretionary listing. 15.16 Notice of listing. Subpart C--Procedures for Removing a Facility From the List of Violating Facilities 15.20 Removal of a mandatory listing. 15.21 Removal of a discretionary listing. 15.22 Request for removal from the list of violating facilities. 15.23 Request for removal hearing. 15.24 Removal hearing. 15.25 Request for review of the decision of the Case Examiner. 15.26 Effective date of removal. 15.27 Notice of removal. Subpart D--Agency Coordination 15.30 Agency responsibilities. 15.31 Agency regulations. 15.32 Contacting the Assistant Administrator. 15.33 Investigation by the Assistant Administrator prior to awarding a contract, grant, or loan. 15.34 Referral by the Assistant Administrator to the Department of Justice. Subpart E--Miscellaneous 15.40 Distribution of the List of Violating Facilities. 15.41 Reports. Authority: 42 U.S.C. 7401 et seq.; 33 U.S.C. 1251 et seq.; E.O. 11738 of September 10, 1973 (38 FR 28161). Source: 50 FR 36191, Sept. 5, 1985, unless otherwise noted. Subpart A--Administrative Matters 15.1 Policy and purpose. (a) It is the policy of the Federal Government to improve and enhance environmental quality. This regulation is issued to ensure that each agency in the Executive Branch of the Federal Government that is empowered to enter into contracts for the procurement of goods, materials, or services or to extend Federal assistance by way of grant, loan, or contract undertakes such procurement and assistance activities in a manner that will result in effective enforcement of the Clean Air Act (CAA), 42 U.S.C. 7401 et seq., and the Clean Water Act (CWA), 33 U.S.C. 1251 et seq., and does not favor firms where production costs may be lower due to noncompliance. (b) This part establishes the List of Violating Facilities, procedures for placing a facility on the List of Violating Facilities, removing a facility from the List of Violating Facilities, and procedures for ensuring that agencies in the Executive Branch of the Federal Government undertake their procurement and assistance activities in a manner that will result in effective enforcement of the CAA and the CWA. 15.2 Scope. (a) This regulation applies to all agencies in the Executive Branch of the Federal Government which award contracts, grants, or loans. This regulation also applies to government contractors and subcontractors and to recipients of funds under government grants and loans. The debarment or suspension that results from a mandatory or discretionary listing is facility-specific and does not apply to other facilities of the same company. (b) This regulation only applies to contracts, grants, or loans involving the use of facilities located within the United States. (c) The rights and remedies of the Government under these regulations are not exclusive and do not affect any other rights or remedies provided by law. 15.3 Administrative responsibility. (a) Except for the power to issue rules and regulations, the Assistant Administrator for Enforcement and Compliance Monitoring and the General Counsel are delegated authority and assigned responsibility to carry out the responsibilities assigned to the Administrator of the Environmental Protection Agency under Executive Order 11738. (b) The Assistant Administrator and the General Counsel are authorized to redelegate the authority conferred by this regulation. 15.4 Definitions. Administrator means the Administrator of the United States Environmental Protection Agency or his or her designee. Agency means any department, agency, establishment, or instrumentality in the Executive Branch of the Federal Government, including corporations wholly owned by the Federal Government which award contracts, grants, or loans. Air Pollution Control Agency means any agency which is defined in section 302(b) or section 302(c) of the CAA. Applicant means any person who has applied for but has not yet received a contract, grant, or loan and includes a bidder or proposer for a contract which is not yet awarded. Assistant Administrator means the Assistant Administrator for Enforcement and Compliance Monitoring, United States Environmental Protection Agency, or his or her designee. Borrower means any recipient of a loan as defined below. Case Examiner means an EPA official familiar with pollution control issues who is designated by the Assistant Administrator to conduct a listing or removal proceeding and to determine whether a facility will be placed on the List of Violating Facilities or removed from such list. The Case Examiner may not be: (1) The Listing Official; (2) the Recommending Person or anyone subordinate to the Recommending Person; or (3) closely involved in the underlying enforcement action. Clean air standards means any enforceable rules, regulations, guidelines, standards, limitations, orders, controls, prohibitions, or other requirements which are contained in, issued under, or otherwise adopted pursuant to the CAA or Executive Order 11738, an applicable implementation plan as described in section 110(d) of the CAA, an approved implementation procedure or plan under section 111(c) or section 111(d), respectively, of the CAA or an approved implementation procedure under section 112(d) of the CAA. Clean water standards means any enforceable limitation, control, condition, prohibition, standard, or other requirement which is established pursuant to the CWA or contained in a permit issued to a discharger by the United States Environmental Protection Agency, or by a State under an approved program, as authorized by section 402 of the CWA, or by a local government to ensure compliance with pretreatment regulations as required by section 307 of the Clean Water Act. Compliance means compliance with clean air standards or clean water standards. For the purpose of these regulations, compliance also shall mean compliance with a schedule or plan ordered or approved by a court of competent jurisdiction, the United States Environmental Protection Agency, or an air or water pollution control agency, in accordance with the requirements of the CAA or the CWA and regulations issued pursuant thereto. Contract means any contract or other agreement made with an Executive Branch agency for the procurement of goods, materials, or services (including construction), and includes any subcontract made thereunder. Contractor means any person with whom an Executive Branch agency has entered into, extended, or renewed a contract as defined above, and includes subcontractors or any person holding a subcontract. Facility means any building, plant, installation, structure, mine, vessel or other floating craft, location or site of operations owned, leased, or supervised by an applicant, contractor, grantee, or borrower to be used in the performance of a contract, grant, or loan. Where a location or site of operations contains or includes more than one building, plant, installation, or structure, the entire location or site shall be deemed to be a facility, except where the Assistant Administrator determines that independent facilities are located in one geographic area. General Counsel means the General Counsel of the U.S. Environmental Protection Agency, or his or her designee. Governor means the governor or principal executive officer of a state. Grant means any grant or cooperative agreement awarded by an Executive Branch agency including all subagreements awarded thereunder. This includes grants-in-aid, except where such assistance is solely in the form of general revenue sharing funds, distributed under the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. 1221 et seq. Grantee means any person with whom an Executive Branch agency has entered into, extended, or renewed a grant, subgrant, or other assistance agreement defined under grant above. List of Violating Facilities means a list of facilities which are ineligible for any agency contract, grant or loan. List Official means an EPA official designated by the Assistant Administrator to maintain the List of Violating Facilities. Listing proceeding means an informal hearing, conducted by the Case Examiner, held to determine whether a facility should be placed on the List of Violating Facilities. Loan means an agreement or other arrangement under which any portion of a business, activity, or program is assisted under a loan issued by an agency and includes any subloan issued under a loan issued by an agency. Person means any natural person, corporation, partnership, unincorporated association, State or local government, or any agency, instrumentality, or subdivision of such a government or any interstate body. Recommendation to list means a written request which has been signed and sent by a recommending person to the Listing Official asking that EPA place a facility on the List of Violating Facilities. Recommending person means a 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. State means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, or the Trust Territories of the Pacific Islands. Water pollution control agency means any agency which is defined in section 502(1) or section 502(2), 33 U.S.C. 1362 (1) or (2), of the CWA. 15.5 Exemptions. (a) (1) Transactions of $100,000 and less. Except as provided in 15.5(b) below, contracts, grants, and loans not exceeding $100,000 are exempt from these regulations. This exemption includes contracts for indefinite quantities or service as long as the purchaser has reason to believe that the amount to be ordered in any year under such an agreement will not exceed $100,000. (2) Assistance to abate, control, or prevent environmental pollution. Except as provided in 15.5(b) below, a contract, grant, or loan will be exempt from these regulations when the principal purpose of a contract, grant, or loan is to assist the facility or facilities to comply with any Federal, State, or local law, regulation, limitation, guideline, standard, or other requirement relating to the abatement, control or prevention of environmental pollution. (b) The exemption in 15.5(a) do not apply where work under the contract is to be performed at a facility that has been placed on the List of Violating Facilities on the basis of a criminal conviction under section 113(c)(1) of the CAA or section 309(c) of the CWA and the person convicted owns, supervises, or leases the facility. (c) Authority of Agency Head to Grant Exemptions-- (1) Individual exemptions. Where an Agency head determines that it is in the paramount interest of the United States to enter into, renew, or extend a contract, grant, or loan in connection with any facility that is on the List of Violating Facilities, he or she may exempt the agreement from the provisions of this regulation for a period of one year. The Agency head granting the exemption shall notify the Assistant Administrator of the exemption as soon, before or after granting the exemption, as may be practicable. The justification for such an exemption, or any renewal thereof, shall fully describe the purpose of the contract, grant, or loan and shall show why the paramount interest of the United States requires the exemption. (2) Class exemptions. Where an agency head determines that it is in the paramount interest of the United States for the agency to enter into, extend, or renew any class of contracts, grants, or loans, he or she may exempt the class of agency contracts, grants, or loans from the provisions of this regulation by rule or regulation after consultation with the Administrator. Subpart B--Procedures for Placing a Facility on the List of Violating Facilities 15.10 Mandatory listing. The Listing Official shall place a facility on the List of Violating Facilities if the facility which gave rise to the conviction is owned, leased, or supervised by any person who has been convicted of a criminal offense under section 113(c)(1) of the CAA or section 309(c) of the CWA. The mandatory listing is automatically effective upon conviction. 15.11 Discretionary listing. (a) The Listing Official shall place a facility on the List of Violating Facilities if there is a final agency action under 15.12(d), 15.13(c) 15.14(c), or 15.14(d) which determines that there is a record of continuing or recurring noncompliance with clean air standards or clean water standards at the facility recommended for listing and that: (1) A Federal court has convicted any person under section 113(c)(2) of the CAA if that person owns, leases, or supervises a facility recommended for listing; (2) A State or local court has convicted any person of a criminal offense on the basis of noncompliance with clean air standards or clean water standards if that person owns, leases, or supervises a facility recommended for listing; (3) A Federal, State, or local court has issued an injunction, order, judgment, decree (including consent decrees), or other form of civil ruling as a result of noncompliance with clean air or clean water standards at a facility recommended for listing; (4) The facility has violated any administrative order issued under section 113(a), 113(d), 167, or 303 of the CAA, or section 309(a) of the CWA, if the violator owns, leases, or supervises a facility recommended for listing; (5) EPA has issued to the facility a Notice of Noncompliance under section 120 of the CAA; or (6) EPA has filed an enforcement action in Federal court under sections 113(b), 167, 204, 205, or 211 of the CAA or section 309(b) of the CWA due to noncompliance with clean air standards or clean water standards at the facility recommended for listing. (b) A recommendation to list from a recommending person initiates the process for discretionary listing. A recommendation to list must contain: (1) The name, address, and telephone number of the person filing the recommendation; (2) A description of the facility alleged to be in noncompliance with clean air standards or clean water standards, including the name and address of the facility; (3) A description of the alleged continuing or recurring noncompliance, including any available data and any other pertinent information supporting the allegation of noncompliance; and (4) A description of the criminal, civil, or administrative action or conviction under 15.11 (a)(1), (a)(2), (a)(3), (a)(4), or (a)(5) which is pertinent to the facility and the alleged continuing or recurring noncompliance. (c) The Listing Official shall review each recommendation to list to ensure that it complies with all of the requirements under 15.11(b). If there is a deficiency in a recommendation the Listing Official must return it to the recommending person for correction. If there is no deficiency in the recommendation to list, the Listing Official shall transmit the recommendation to the Assistant Administrator. The Assistant Administrator, in his or her discretion, may: (1) Decline to list, or (2) Designate a Case Examiner in accordance with 15.12(a), or (3) Decide to list the facility in accordance with 15.12(d). (d) A recommending person may withdraw a recommendation list at any time before the conclusion of the listing proceeding. The recommending person shall withdraw the recommendation to list if the recommending person determines that the conditions which gave rise to the recommendation to list have been corrected or if the facility recommended for listing is on an EPA-approved plan for compliance, which will ensure that the conditions(s) which gave rise to the recommendation to list will be corrected. 15.12 Notice of filing of recommendation to list and opportunity to have a listing proceeding. (a) The Listing Official shall send to the owner, operator or supervisor of the facility named in the recommendation to list written notice that a recommendation that the facility be placed on the List of Violating Facilities has been filed with the Listing Official and has been transmitted to the Assistant Administrator. Within thirty (30) calendar days of the receipt of the notice, any person who owns, leases, or supervises the facility may request the Assistant Administrator to designate a Case Examiner to hold a listing proceeding for the purpose of determining the propriety of the proposed listing. (b) If a listing proceeding is requested, the Listing Official shall schedule a listing proceeding and notify in writing the recommending person and the person requesting the listing proceeding of the date, time, and location of the listing proceeding. (c) The Listing Official shall respond to any requests from the recommending person and the person requesting the listing proceeding concerning the procedures for discretionary listing. (d) If there is no timely request for a listing proceeding under 15.12(a) above, the Listing Official will place the facility named in the recommendation to list on the List of Violating Facilities on the basis of discretionary listing if, upon reviewing the recommendation to list and any other available information, the Assistant Administrator determines that there is a record of continuing or recurring noncompliance with clean air standards or clean water standards at the facility recommended for listing and the requisite criminal, civil, or administrative enforcement action has been taken or criminal conviction under CAA section 113(a)(2) or under State law has occurred. Such a determination by the Assistant Administrator constitutes final agency action. 15.13 Listing proceeding. (a) No listing proceeding for mandatory listing. Mandatory listing is effective upon conviction and no listing proceeding will be provided when a facility is listed on this basis. For purposes of updating the List of Violating Facilities, the Associate Enforcement Counsel for Criminal Enforcement shall notify the Listing Official of the conviction as soon as it occurs. (b) Listing proceeding for discretionary listing. (1) A listing proceeding for discretionary listing shall be conducted in an informal manner without formal rules of evidence or procedure. The EPA and the person requesting the listing proceeding under 15.12(a) above may be represented by legal counsel, present oral and written evidence relevant to the proposed listing, and, with the approval of the Case Examiner, may call, ask questions of, and cross-examine witnesses, except to the extent any testimony would prematurely reveal sensitive enforcement information which the government may legally withhold or would unduly extend the proceedings in light of the usefulness of any additional information likely to be produced. The Case Examiner may take official notice of facts, law, and any other information available to him or her. The Case Examiner may also request any party to supplement the record by submitting additional information. (2) The listing proceeding shall be transcribed, and EPA shall make available at cost a transcribed record of the proceeding upon request by any person. (3) To 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 noncompliance at the facility named in the recommendation to list and that the requisite enforcement action has been taken. (c) Case Examiner's decision. Not later than thirty (30) calendar days after conclusion of the listing proceeding and any supplementation of the record, the Case Examiner shall issue a written decision on whether or not to list the facility based on the record of the listing proceeding and shall file that decision with the Listing Official. (d) Notification of Case Examiner's decision. The Listing Official shall notify in writing the recommending person and the person who requested the listing proceeding of the Case Examiner's decision and of the opportunity to request the General Counsel to review the Case Examiner's decision under 15.14. 15.14 Review of the Case Examiner's decision. (a) Within thirty (30) calendar days after notice of the Case Examiner's decision, the owner, operator or supervisor of the facility may file with the Listing Official a written request asking the General Counsel to review the Case Examiner's decision. The request to review the Case Examiner's decision must contain: (1) A statement of the case and the facts involved in the recommendation to list; (2) A statement of the issues presented by the recommendation to list; and (3) A statement showing why the decision of the Case Examiner is not correct based on the record of the listing proceeding considered as a whole. (b) The owner, operator or supervisor of the facility may raise on review only those issues raised before the Case Examiner, unless the General Counsel determines that there is good cause to include consideration of any new issues. (c) If the Listing Official receives a timely request for review of the Case Examiner's decision, the General Counsel shall review the record of the listing proceeding to determine if the decision of the Case Examiner is correct based on the record of the listing proceeding considered as a whole. As soon as practicable after receiving the request for review, the General Counsel shall issue a final decision in writing which explains the basis for the final decision. The General Counsel's decision shall constitute final agency action. The General Counsel shall file the decision with the Listing Official. (d) The Case Examiner's decision constitutes a final agency action for purposes of discretionary listing unless a timely request for review of the Case Examiner's decision is filed with the Listing Official in accordance with 15.14(a). 15.15 Effective date of discretionary listing. (a) Discretionary lising is effective immediately upon the issuance of a final agency action filed with the Listing Official to place the facility recommended for listing on the List of Violating Facilities, or upon a determination of the Assistant Administrator under 15.12(d). (b) Discretionary listing remains effective until a removal occurs under 15.26. 15.16 Notice of listing. (a) Mandatory listing. The Listing Official shall send written notice to the owner, operator or supervisor of the facility which shall state that the facility has been placed on the List of Violating Facilities on the basis of mandatory listing and the effective date of such listing. (b) Discretionary listing. The Listing Official shall send written notice to the recommending person and any person who requested a listing proceeding informing them of the effective date of the discretionary listing. The Listing Official shall send written notice to the owner, operator or supervisor of the facility if no listing proceeding was requested. (c) Federal Register notice. The Listing Official shall publish the effective date of the placement of the facility on the List of Violating Facilities in the Federal Register in accordance with 15.40. Subpart C--Procedures for Removing a Facility From the List of Violating Facilities 15.20 Removal of a mandatory listing. When the Listing Official has placed a facility on the List of Violating Facilities on the basis of mandatory listing under 15.10, the facility shall remain on the List of Violating Facilities until the Assistant Administrator certifies that the condition giving rise to mandatory listing has been corrected. Where a conviction has been overturned, removal shall be automatic. 15.21 Removal of a discretionary listing. (a) When the Listing Official has placed a facility on the List of Violating Facilities on the basis of discretionary listing under 15.11, the Listing Official shall remove the facility from the List of Violating Facilities as provided below: (1) If the conviction, decree, order, judgment, or other form of civil ruling or finding which formed the basis for discretionary listing under 15.11(a) has been reversed or otherwise modified to remove the basis for discretionary listing; (2) If the Assistant Administrator has determined that the condition(s) which gave rise to discretionary listing have been corrected; or, (3) Automatically after one year of a discretionary listing under 15.11 (a)(4), (a)(5) or (a)(6), unless before the expiration of the one-year period a basis for mandatory listing arises under 15.10 or a basis for discretionary listing arises under 15.11 (a)(1), (a)(2), or (a)(3). (b) The Listing Official shall remove a facility from the List of Violating Facilities at the direction of the Assistant Administrator if the Assistant Administrator determines that the facility is on a plan for compliance which will ensure that the condition(s) which gave rise to discretionary listing will be corrected. 15.22 Request for removal from the list of violating facilities. (a) The original recommending person or any person who owns, operates or supervises a facility that is on the List of Violating Facilities may file with the Listing Official a request to remove the facility from the List. This request must set forth the proposed basis for removal from the List under 15.20 or 15.21. (b) The Assistant Administrator shall review the request for removal and shall issue a decision as expeditiously as practicable after receiving the request as to whether the facility will be removed from the List of Violating Facilities. Failure of the Agency to make a decision within 45 calendar days constitutes a denial of the request. (c) The Listing Official shall send written notice to the person requesting removal informing that person of the Assistant Administrator's decision and of the opportunity to request a removal hearing under 15.23 if the Assistant Administrator denies the request for removal. 15.23 Request for removal hearing. (a) Within thirty (30) calendar days after the Assistant Administrator denies a request for removal from the List of Violating Facilities, the owner, operator or supervisor of the facility or the original recommending person may file with the Listing Official a written request for a removal hearing under 15.24. (b) If a timely request for a removal hearing under 15.23(a) is not filed, any person who may make a request for removal under 15.22(a) may file a new request for removal under 15.22(a) based on new information. 15.24 Removal hearing. (a) A removal hearing shall be conducted by a Case Examiner designated by the Assistant Administrator. The person requesting the removal hearing must demonstrate at the removal hearing by a preponderance of the evidence that a basis for removal is present. (1) The person requesting the removal hearing and the Agency may be represented by legal counsel, present oral and written evidence relevant to the proposed removal, and, with the approval of the Case Examiner, call, ask questions of, and confront witnesses to the extent it is relevant to the issue of removal and to the extent that any additional information produced will be useful in light of the additional time such procedures will take. (2) The removal hearing shall be transcribed and a transcribed record of the proceeding shall be made available at cost upon request by the owner, operator, or lessee of the facility or any person represented at the hearing. (b) The Federal, State, or local authority responsible for the enforcement of clean air standards or clean water standards with respect to the listed facility may participate in the removal hearing. (c) The Case Examiner's decision concerning removal shall be based solely upon the record in the removal hearing. (d) The Listing Official shall send written notice to the person requesting the removal hearing and the Federal, State, or local authority responsible for the enforcement of clean air standards or clean water standards with respect to the listed facility, informing them of the decision of the Case Examiner and of the opportunity to request the Administrator to review the Case Examiner's decision under 15.25. 15.25 Request for review of the decision of the Case Examiner. (a) Within thirty (30) calendar days after the date of the Case Examiner's decision under 15.24, the owner, operator or supervisor of the facility may file with the Listing Official a request for the Administrator to review the Case Examiner's decision. The request shall contain: (1) A statement of the issues presented by the request for removal; (2) A statement of the case and the facts involved in the request for removal; and (3) A statement showing why the decision of the Case Examiner is not correct based upon the record of the removal hearing considered as a whole. (b) Upon receiving a timely request for review of the decision of the Case Examiner, the Administrator shall review the record of the removal hearing to determine if the decision of the Case Examiner is correct based upon the record of the removal hearing considered as a whole. As soon as practicable after receiving the request for review, the Administrator shall issue a final decision in writing which shall set forth the reasons for the decision. The decision shall constitute final agency action. (c) If the timely request for the Administrator to review the Case Examiner's decision under 15.25(a) is not filed, the Case Examiner's decision constitutes final agency action at the expiration of such period. (d) If the request for removal is denied upon review, any person who may file a request for removal under 15.22(a) may file a new request for removal under 15.22(a) based on new information. 15.26 Effective date of removal. (a) Mandatory listing. Removal of a facility placed on the List of Violating Facilities on the basis of mandatory listing shall be effective immediately upon the certification by the Assistant Administrator that the condition(s) which gave rise to the mandatory listing under 15.10 has been corrected, or upon the issuance of a final agency action filed with the Listing Official to remove the listed facility from the List of Violating Facilities following a decision by a Case Examiner under 15.24 or by the Administrator under 15.25. (b) Discretionary listing. Removal of a facility placed on the List of Violating Facilities on the basis of discretionary listing shall be effective immediately upon the expiration of one year under 15.21(a)(3), or upon the Assistant Administrator's decision to remove the listed facility based upon a timely written request for removal under 15.22(a), or upon the issuance of a final agency action filed with the Listing Official to remove the listed facility from the List of Violating Facilities under 15.24 or 15.25. 15.27 Notice of removal. The Listing Official shall send written notice to the owner, operator or supervisor of the facility, the recommending person, and any person who made a timely written request for removal under 15.22(a), informing them of the effective date of the removal of the facility from the List of Violating Facilities. The Listing Official shall publish the effective date of the removal in the Federal Register in accordance with 15.40. Subpart D--Agency Coordination 15.30 Agency responsibilities. Each agency shall take appropriate steps to ensure that all officers and employees whose duties include ensuring that all agency contracts, grants, and loans are in compliance with applicable requirements are familiar with the requirements set forth in Executive Order 11738, this regulation, the Federal Acquisition Regulations (48 FR 42102, September 19, 1983), and the EPA Acquisition Regulations (49 FR 8834, March 8, 1984). 15.31 Agency regulations. Any agency responsible for promulgating contract, grant, or loan regulations, shall ensure that its regulations require every nonexempt agency contract, grant, or loan and every subagreement issued thereunder to include the following provisions: (a) A promise by the contractor, grantee, or borrower that he or she will not use any facility on the List of Violating Facilities in the performance of any nonexempt contract, grant, or loan for the duration of time that the facility remains on the List. (b) A promise by the contractor, grantee, or borrower that he or she will notify the awarding agency if a facility he or she intends to use in the performance of the contract, grant, or loan is on the List of Violating Facilities or knows that it has been recommended to be placed on the List of Violating Facilities. (c) A promise by the contractor, grantee, or borrower that in the performace of the contract, grant, or loan, he or she will comply with all requirements of the CAA and the CWA, including the requirements of section 114 of the CAA and section 308 of the CWA, and all applicable clean air standards and clean water standards. See Federal Acquisition Regulation, 48 CFR 52.223 - 1 and 52.223 - 2. 15.32 Contacting the Assistant Administrator. (a) Any agency contracting officer or awarding official shall promptly report, to his or her agency head, or the designee of the Agency head any condition which may involve noncompliance with clean air standards or clean water standards at any facility that is being used, or will be used in an agency contract, grant, or loan. The report shall include at a minimum the following information: (1) The name, telephone number, and agency of the employee discovering the condition. (2) The name of the facility at which the condition exists. (3) A description of the condition. (4) The contract, grant, or loan the agency has issued or may issue, extend, or renew to the facility at which the condition exists. (b) The agency head, or his or her designee, shall transmit any reports made under 15.32(a) to the Assistant Administrator as soon as practicable, after he or she receives the report. In response to the report, the Assistant Administrator shall take any action that is consistent with the policy and purpose of this regulation. 15.33 Investigation by the Assistant Administrator prior to awarding a contract, grant, or loan. (a) If the Assistant Administrator is notified under 15.32(b) that a condition which may involve noncompliance with clean air standards or clean water standards exists at a facility that is or may be used in the performance of any nonexempt agency contract, grant, or loan, the Assistant Administrator may, after consultation with the awarding agency involved, request that the award, extension, or renewal of the nonexempt contract, grant, or loan be withheld for fifteen (15) working days to determine if a basis exists for placing the facility on the List of Violating Facilities under 15.10 or 15.11. (b) If the Assistant Administrator requests that an award, extension, or renewal of a contract, grant, or loan be withheld under 15.33(a), the awarding agency shall comply with the Assistant Administrator's request unless it determines that the delay is substantially contrary to the best interests of the government. The awarding agency shall promptly notify the Assistant Administrator of any such determination. (c) At the end of the fifteen (15) working-day period, the Assistant Administrator shall notify the awarding agency and the applicant of the results of any investigation undertaken under 15.33(a). 15.34 Referral by the Assistant Administrator to the Department of Justice. The Assistant Administrator may recommend to the Department of Justice or other appropriate agency that legal proceedings be brought or other appropriate action be taken whenever the Assistant Administrator becomes aware of a breach of any provision required to be included in a contract, grant, or loan under 15.31. Subpart E--Miscellaneous 15.40 Distribution of the List of Violating Facilities. The List of Violating Facilities shall be transmitted to the General Services Administration and Federal agencies with assistance responsibilities and published in the Federal Register on or about February 1 and August 1 of each year, and updated in the Federal Register as necessary to reflect changes to the List as they occur. The list shall contain the following information: (a) The name of each facility on the List; (b) The location of the facility; (c) The basis for the listing; (d) The effective date of the listing; and (e) Any removal of any facility from the List. 15.41 Reports. (a) Agency reports. Each Agency head will report to the Administrator each exemption granted under 15.5(b) to the Administrator. Reports should be made by November 1 of each year and should indicate all exemptions granted during the previous fiscal year. (b) Reports by the Administrator. (1) The Administrator shall report annually to the President on the measures he or she has taken toward implementing the purpose and intent of section 306 of the CAA, section 508 of the CWA, Executive Order 11738, and this regulation, including but not limited to the progress and problems associated with such implementation. (2) The Administrator shall notify the President and the Congress annually of all exemptions granted or in effect under 15.5 during the preceding year.